The Australasian Steam Navigation Company v Morse
| Jurisdiction | UK Non-devolved |
| Judgment Date | 10 May 1872 |
| Date | 10 May 1872 |
| Court | Privy Council |
Judicial Committee of the Privy Council
The Right Hons. Sir James W. Colvine, Lord Justice James, Sir Montague E. Smith, and Sir R. P. Collier
The Australasian Steam Navigation Company v. Morse
The Bonaparte 8 Moo. Priv. Co. 459
The HamburgENR Br. & Lush. 273
Ship Authority of master to sell cargo Necessity for sale
MARITIME LAW CASES. 407 American Reps.] The Australasian Steam Navigation Company v. Mouse. [Priv. Co. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Reported by Douglas Kingsford, Esq., Barrister-at-Law. March 22 and May 10, 1872. (Present: The Eight Hons. Sir James W. Colvile, Lord Justice James, Sir Montague E. Smith, and Sir R. P. Collier.) The Australasian Steam Navigation Company v. Morse. Ship-Authority of master to sett cargo-Necessity for sale-Communication with owner-Telegraph -General cargo. The authority of the master of a ship to sell the goods of the absent owner is derived from the necessity of the situation in which he is placed; and, consequently, to justify his thus dealing with the goods he must establish (1) a necessity for the sale; and (2) inability to communicate with the owner and obtain his directions. Under these conditions, and by force of them, the master becomes the agent of the owner, not only with the power but under the obligation (within certain limits) of acting for him; but he is not entitled to substitute his own judgment for the will of the owner in selling the goods if it is possible to communicate with the owner and ascertain his will. There is a " necessity " for the sale, if, under the circumstances of the case, a sale is the best and most prudent thing to be done for the interest of the owner. The possibility of communicating with the owner depends on the circumstances of each case, involving a consideration of the facts which create the urgency for an early sale; the distance of the port from the owners, the means of communication which exist, and the general position of the master in the particular emergency. Such communication only needs to be made where an answer can be obtained, or there is a reason able expectation that it can be obtained, before sale; where, however, there is ground for such 1 an expectation, every endeavour, so far as the 1 position in which he is placed will allow, should be made by the master to obtain the owner's instructions. The master is bound to employ the telegraph as a means of communication, where it can usefully be done ; but the state of the particular telegraph, 1 the way in which it is managed, and the possibility of transmitting explanatory messages, are proper subjects to be considered in determining the question of the practicability of communication. The fact thai the master cannot communicate with 1 aw the owners of a general cargo, does not of itself justify him in selling without communication with any of the owners; but this fact, increasing the embarrassment of the master, is to be considered when an estimate of his conduct has to be formed. This was an appeal from a judgment of the Supreme Court of New South Wales, bearing date 7th March, If 1870, whereby a rale nisi to set aside the verdict if for the defendants obtained in this case, and to grant a new trial, was made absolute, with a direction that the costs of the first trial and of making the said role absolute should abide the event. The action was commenced by the respondents against the appellants. The declaration alleged, in 408 MARITIME LAW CASES. Priv. Co.] The Australasian Steam Navigation Company v. Morse. [Priv. Co. the first count, the conversion by the appellants of certain bales of wool, the property of the respondents, and in the residue of the declaration sued for money had and received, and for money doe on accounts stated. The appellants pleaded to the first count that the wool was shipped on board of a vessel of the appellants, called the Boomerang, to be carried from Rockhampton, in the colony of Queensland, to Sydney, and there (excepting certain perils and casualties of the sea and navigation) delivered to the plaintiffs; that the ship in the coarse of her voyage stranded, and the wool became saturated with sea water, and that the appellants wore compelled to take it back to Rooknampton, and then, after survey, sold it, as the only proper coarse to pursue in its then state, for the benefit of the plaintiffs. To the residue of the declaration the appellants pleaded payment into court of 124l. is. 6d. The plaintiffs replied to the first plea:-First, joinder of issue; secondly, that the wool might, at email expense, have been dried and re-packed, and forwarded to Sydney; and thirdly, as to the second plea, that the money paid into court was not sufficient. Issue was joined on these replications. Five other similar actions were about the same time commeced in the said Supreme Court against the appellants by other parties, owners of wool shipped on board the Boomerang. The case was tried in the said Supreme Court before Sir Alfred Stephen, Chief Justice of the said court, on the 1st, 2nd, and 3rd March 1869, when evidence (part of which had been obtained on commissions to examine witnesses in England, and in Queensland, in one of the said other actions, and was, by consent of the parties, read as evidence in this action), was given to the following effect:- The plaintiff was a wool producer in Queensland, at a station 120 miles inland from Port Mackay, and in the month of December 1865, nineteen bales of wool were sent by him to Rockhampton, a distance southward of about 250 miles, and at the latter port were transshipped by bis agent on board the steam vessel Boomerang, belonging to the appellants, for conveyance from Rockhampton to Sydney, in the colony of New South Wales, a farther distance of above 900 miles. The bales were consigned to Messrs. Willis,Merry,and Lloyd, merchants in Sydney, for the purpose of shipment to England. The said nineteen bales formed portion of a cargo comprising 260 bales of wool, or thereabouts, consigned to nineteen separate consigneen in Sydney aforesaid (including the plaintiffs in the said other five actions;, and four parcels deliverable to order. The Boomerang on her voyage, about forty-five miles from Rockhampton, struck upon a rock and filled, and the whole of her cargo became submerged and more or less damaged by sea water. The cargo was thereupon with great labour taken out of the Boomeang, transshipped in a steam vessel, the Yaamba, sent from Rockhampton for the purpose, and brought back to Rockhampton. In the course of transshipment from the Boomerang many of the kales of wool unavoidably burst open, and the wool belonging to different consignees became mixed, and the wool on its return to Rockhampton, to which place it was conveyed with reasonable dispatch, was dirty and stank and was heated and in danger of ignition. The weather was rainy, and there were no stores in the town of Rockhampton in which the wool could have been unpacked and dried, and the wool was in immediate peril of increased and serious...
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