The Australasian Steam Navigation Company, - Appellants; William Henry Morse and George Philip Morse, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 22 March 1872 |
| Date | 22 March 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 393
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Mews' Dig. tit. Shipping, A. V. Master, 3. Authority to sell Ship or Cargo; XV. Cargo, 8. Duty of Master, c. To sell-Power of Master; B. Marine Insurance, XII. Sale by Master, etc. 2. Cargo. S.C. L.R. 4 P.C. 222; 27 L.T. 357; 20 W.R. 728. See Cargo ex Argos, 1873, L.R. 5 P.C. 165; Kleinwort v. Cassa Marittima of Genoa, 1877, 2 App. Cas. 157; Acatos v. Burns, 1878, 3 Ex. D. 288. As to leave to appeal in civil cases, see note to Retemeyer v. Obermuller, 1837, 2 Moo. P.C. 125.
[482] ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. THE AUSTRALASIAN STEAM NAVIGATION COMPANY,-Appellants; WILLIAM HENRY MORSE and GEORGE PHILIP MORSE,-Respondents * [March 22, 1872]. The authority of the Master of a Ship to sell the goods of an absent Owner is derived from the necessity of the situation in which he is placed; and, consequently, to justify his selling, he must establish (1) a necessity for the sale; and (2) inability to communicate with the Owner. 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, in any case, entitled to substitute his own judgment for the will of the Owner, in selling the goods, where it is possible to communicate with the Owner [8 Moo. P.C. (N.S.) 490, 491]. The possibility of communicating with the Owner depends on the circumstances of each case, involving the consideration of the facts which create the urgency for an early sale, the distance of the Port from the Owner, the means of communication which may exist, and the general position of the Master in the particular emergency [8 Moo. P.C. (N.S.) 495]. Such a communication need only be made when an answer can be obtained, or there is a reasonable expectation that it can be obtained, before the sale. Where, however, there is ground for such an expectation, every endeavour, so far as the position in which he is placed will allow, should be made by the Master to obtain the Owner's instructions. The Bonaparte (8 Moore's P.C. Cases, 459), and The Cargo ex Hamburg (2 Moore's P.C. Cases (N.S.), 289) recognized and followed [8 Moo. P.C. (N.S.) 495]. The action out of which this appeal arose was brought in the Supreme Court of New South Wales by the Respondents against the Appellants. The Respondents by their declaration alleged in the first count the conversion by the Appellants of nineteen bales of wool, the property of the Respondents, and [483] in the residue of the declaration sued for money had and received, and for money due on account 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 course of her voyage stranded, and the wool became saturated with sea water, that the Appellants were compelled to take it back to Rockhampton, and there, after survey, sold it, as the only proper or safe course to pursue in its then state, for the * Present: Sir James William Colvile, the Lord Justice James, Sir Montague Edward Smith, and Sir Robert Porrett Collier. P.C. vi, 393 13 VIII MOOEE N.S.; 484 AUSTRALASIAN STEAM NAVIGATION CO. V. MOESE [1872] benefit of the Plaintiffs. To the residue of the declaration the Appellants pleaded payment into Court of 124 Is. 6d. The Plaintiffs replied to the first plea; first, joinder of issue; second, that the wool might at small expense have been dried and re-packed, and forwarded to Sydney; and third, as to the second plea, that the money paid into Court was not sufficient. Issue was joined on the replication. The action was tried by a special jury before Sir Alfred Stephen, Chief Justice, when evidence (part of which had been obtained on Commissions to examine Witnesses in England and in Queensland, in one of other actions brought by other Owners of the wool, and was, by consent of the parties, read as evidence in the action) was given to the following effect: - The Plaintiffs were wool producers 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 them to Rockhampton, a distance southward of about 250 miles, and at the latter port [484] were transhipped by their 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 further 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 nineteen bales formed portion of a cargo comprising 260 bales of wool, or thereabouts, consigned to nineteen separate Consignees in Sydney, 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 Boomerang, trans-shipped in a steam-vessel, the Yaamba, sent from Rockhampton for the purpose, and brought back to Rockhampton. In the course of transhipment from the Boomerang many of the bales 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 despatch, 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 Rock-liampton in which the wool could have been unpacked and dried, and the wool was in immediate peril of increased and serious damage. Under these circumstances, at the instance of the Master, assisted by the advice of the Appellants' Agent at Rockhampton, the wool brought back there was surveyed by Charles Haynes Morgan, Lloyd's Agent there, together with Captain Robert Miller [485] Hunter of the same place, Merchant, who reported that the wool was becoming rapidly heated, and was in such a condition that it could not be re-shipped with safety, and recommended that it should be sold immediately; whereupon, and owing to the urgency of the case, the Cargo, with the exception of two or three parcels, was, by the direction of the Captain of the Boomerang, sold at public auction by the Appellants' Agent. At the trial the Judge submitted the following written questions for the determination of the jury:-First, was the wool in such a state that it could be safely conveyed to Sydney? Second, could the Defendants, with the means obtainable by them, have dried, repacked, and forwarded the wool to the port of its destination? Third, if they could have done this at all, could...
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