Hunter v Parker and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 789
EXCH. OF PLEAS.
S. C. 10 L. J. Ex. 281.
hunter v. parker and anothek. Exch. of Pleas. 1840.-Seinhle, that the master of a ship has authority, when, in consequence of injury to the ship during the voyage, there is no prospect of bringing her to the termination of the voyage, to sell her for the benefit of all parties interested.-At all events, where the proceeds of such sale have been received by the owner, that is a .sufficient ratifi- 790 HUNTER V. PARKER 7M. &W. 323. cation by him of the act of the master in selling her, so as to prevent him from afterwards recovering back the ship from the purchaser or one claiming under : him.-So, it ia equally a ratification of a sale by an auctioneer, acting under a parol authority from the master.-And where, under such circumstances, the ship was transferred by an instrument executed by the auctioneer, under seal, but in other respects complying with the requisitions of the Kegistry Act, 3 & 4 Will. 4, c. 55, s. 31, it was held, that the ratification of the owner was sufficient to give validity to the transfer ; for that, as the statute does not require a transfer under seal, the instrument might have the effect of a written transfer by the master according to the statute, as well as that of the deed of the auctioneer.- The purchaser of a vessel under such circumstances cannot set up any defence of lien against an action of trover by the owner. [S. C. 10 L. J. Ex. 281.] Trover for a ship called the "Persian." Fleas, 1st, not guilty; 2ndly, that the plaintiff was not lawfully possessed ; and issues thereon. At the trial before Gurney, B., at tbe London Sittings after Michaelmas Term, 1839, the following appeared to be the facts of the case :- The ship in question, being then the property of the plaintiff, as the surviving partner of the firm of Hunter and Elliott, who were her registered owners, was stranded, [323] during a heavy gale, on the bar of the harbour of Bathurst, in New Brunswick, on the llth of November, 1835. The master forthwith called a survey of the vessel, and under the advice of the surveyors caused certain necessary repairs to be done for her immediate safety, and wrote home to the plaintiff for instructions, but received none of any kind. The vessel remained on the strand the whole of the following winter and spring ; and in the month of June, 1836, the master called a final survey. The surveyors reported the vessel to be uuseaworthy ; and, acting upon their report, the master sold her in her then state, by auction, to Mr. Cunarcl; and the following hill of sale was signed and sealed by the auctioneer :-" Whereas the ship or vessel called the ' Persian,' of the burthen of 257g-" tons, belonging to the port of Sunderland, arrived at the harbour of Bathurst, in New Brunswick, and loaded there a cargo of timber destined for Liverpool, Great Britain ; and the said ship or vessel, having her said cargo on board, while riding at anchor in the roads of the said harbour, preparing to proceed to sea on her said voyage, and on the llth day of November, in the year of our Lord 1835, experienced a heavy gale of wind, which drove her from her said anchorage on the shoals or flats on the north west side of the harbour, where she bilged arid struck: That Henry Stratford, the master of the said ship or vessel, caused immediately thereon a survey or examination to be made of the state of the said ship or vessel, and according to the report or recommendation of the surveyors, the said Henry Stratford, master as aforesaid, and acting as the agent for the owners, underwriters, and all others concerned in the said ship or vessel, caused certain things to be done arid performed for the safety and preservation of the said vessel, with her cargo: That on the 2nd day of June next following, which was in the present year of our Lord 1836, the said ship or vessel being still on the flats or shoals aforesaid, and having experienced additional damage [324] by the ice during the intervening winter, the said Henry Stratford caused another and final survey to be held on the said vessel by competent persons, and according to the custom of the country, the result of which survey was the condemnation of the said ship or vessel as unseaworthy, &c. ; all of which has been made to appear unto me, as well by the protest of the said Henry Stratford, as by the testimony of the surveyors and otherwise ; whereupon the said Henry Stratford, acting as aforesaid, applied to, directed, and authorized me, Henry W. Baldwin, an auctioneer, duly licensed and qualified, to advertise for sale, and to sell for the best advantage, for the benefit of owners, underwriters, insurers, and all others whomsoever interested in the said vessel, the hull, masts, spars, rigging, boats, and furniture of or belonging to the said ship or vessel; and, accordingly, at Bathurst aforesaid, on the 15th day of June, 1836, after sufficient notice being published and generally made known of the same, the said ship or vessel and furniture as aforesaid, were offered and exposed by me for sale at public auction ; and the hull being then and there set up, Henry Cunard, of the firm of Cunard & Co., of Bathurst aforesaid, appearing the highest bidder, therefore it was 7M. ScW. 3M. HUNTER V. PARKER 791 accordingly to the said Henry Cunard knocked down and sold : Therefore, know all men by these presents, that I, Henry W. Baldwin, a licensed auctioneer for the county of Gloucester, acting under and by the authority aforesaid, and for and in consideration of the sum of £280, lawful money of New Brunswick, to me in hand well and truly paid by the said Henry Cunard, of the firm of Joseph Cunard & Co., the receipt whereof I do hereby acknowledge, for the uses and purposes aforesaid, have granted, bargained, sold, assigned, transferred, and set over, and by these presents, do fully and absolutely grant, bargain, sell, assign, transfer, and set over unto the said Henry Cunard, his executors, administrators, and assigns for ever, all that ship or vessel called the ' Persian,' of 257 tons' burthen, [325] or thereabouts, now lying stranded oti the shoals on the north side of Alston Point, at the mouth of the harbour of Bathurst aforesaid, with the lower masts, bowsprit, windlass, and all furniture remaining on board at the date of these presents, which said ship or vessel had been duly registered pursuant to an act of Parliament for that purpose, and a copy of the certificate of registry is as follows, viz. [the certificate of registry was then recited]:- To have and to hold the said ship or vessel called the ' Persian,' and all and singular the premises hereinbefore mentioned, and hereby bargained and sold, or intended so to be, and every part aud parcel thereof, with the appurtenances, unto the said Hanry Cunard, his executors, administrators, and assigns, to and for his and their own proper use and benefit, and as their own proper goods and chattels, henceforth for ever : and I, Henry VV. Baldwin, do covenant and agree to and with the said Henry Cunard, his executors, administrators, and assigns, in manner following, that is to say, that I have in myself, by the authority and for the purposes hereinbefore named, and by and for none other, full power and absolute authority to grant, bargain, sell, transfer, and set over the said ship or vessel called the 'Persian,' with the appurtenances, unto the said Henry Cunard, his executors, administrators, and assigns, in mariner and form aforesaid, according to the true intent and meaning of these presents. In witness " &c. The auctioneer had no authority for the sale, except a letter from the master directing it. Cunard, the purchaser, paid part of the purchase-money to the master for necessary expenses, and the balance was transmitted by him to his agent in England, by whom it was paid over to the plaintiff'. Cunard got the vessel off the shoals with, great difficulty; and having been at considerable expense in fitting her for sea, sent her with a cargo to England, where [326] he ottered her again to the plaintiff for the money he had expended upon her, but which the plaintiff refused to give, saying, that she was not worth so much ; that she had been fairly sold and bought, and he was sorry Mr. Cunard had made a bad bargain. Cunard afterwards entered into a negotiation for the sale of her to a Mr. Briggs, to which negotiation the plaintiff was a party, and told Briggs that if he bought her, he (the plaintiff) would not interfere. Briggs did buy her, and subsequently resold her to the present defendants, and the plaintiff supplied her with stores on their credit. The plaintiff, not-withstnndi)ig, afterwards demanded the vessel back from the defendants : and on their (refusal to deliver her, brought this action of trover against them to recover her. ! The learned Judge, in summing up, left three questions to the jury :-.First, whether the master, in selling the ship, had acted bona fide, and with the intention of doing the best for the advantage of the owner and of all parties concerned. The jury found that he had. Secondly, whether there was an actual necessity for the sale. The jury found that there was. Thirdly, whether the plaintiff had, by his subsequent conduct, ratified the acts of the master with knowledge of them. The jury found that he had. The verdict was thereupon, under his Lordship's direction, entered generally for...
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