tain, for whose conduct Groverman himself is responsible.

It is true the jury have found that it was by the default of Hooe & Co. in not having orders ready at Falmouth, that the vessel was obliged to go into the port, and that the seizure and detention took place. But if this is a breach of any one of the covenants, yet it is the breach of a covenant not declared upon, nor is the breach assigned, and, therefore, no damages can be given in this action for the breach of that

Covenant.

The

Fox and

*E. J. Lee, for the defendant in error. Hooe & Co. were owners for the voyage. captain was bound to obey their orders. Wilson were their agents. They, by their agent, ordered the vessel into port, contrary to the terms of their agreement; the detention was the consequence of their misconduct, and they ought to be liable for demurrage.

If a person hires a chattel, the hirer is the owner for the time for which he has hired it. Cowp. 143. Vallejo v. Wheeler. In that case, p. 147. it is said, that "there seems to be great reason for a distinction between a general ship, and one that is let to freight to a single person only. The former carries the goods of all mankind; every man that chooses it is at liberty to load his goods aboard her; and the merchant who ships his goods in such a vessel has no command over her. He does not hire or employ the master; neither is the master subject to his order or direction during voyage. But in the case of a vessel let to freight to one merchant only, and by him alone freighted, he may be supposed to employ the master, and have the direction of the vessel and the voyage; and, therefore, whatever is done by the captain is to be considered as done by the merchant's servant." The captain, therefore, in taking the vessel into the port, when, by the agreement, he was only to lay off and on, acted as the servant of Hooe & Co. and by their orders, expressly given through their agent Mr. Fox.

the

But if Hooe & Co. were not owners pro hac vice, yet, having been the cause of the vessel's going into port, whereby she was seized, they are liable.

Hooe

V.

Groverman

* 224

Hooe

V.

Groverman.

* 225

It is said in Molloy, 375. (257.) book 2. c. 4. § 9. that "if the ship, by reason of any fault arising from the freighter, as lading aboard prohibited or unlawful commodities, occasions a detention, or otherwise impedes the ship's voyage, he shall answer the freight contracted and agreed for."

It is immaterial what was the immediate cause of the detention; if it happened by the fault of Hooe & Co. here is a positive covenant to pay demurrage if the vessel is detained.

*But it is said, we have not brought our action for damages for carrying the vessel into port. It is true. that we have not; and the reason is, that the parties themselves having by covenant fixed the rate of damages, no action but covenant would lay.

The furnishing the vessel with men, furniture, &c. does not make Groverman the owner. The captain signed the provisional articles by which he bound himself to obey the orders of Fox and others, the agents of Hooe & Co. and whether the captain was the agent of Groverman, or not, still Hooe & Co. have rendered themselves liable by ordering him to go into the port.

C. Lee, on the same side.

It is of no importance who was the owner; for the detention is clearly the consequence of the default of Hooe & Co. The action is brought for not paying demurrage according to express covenant. The defence set up is, that the vessel was improperly carried into the port; and that the captain being the agent of Groverman, he must abide the loss. We admit that it was unlawful for the vessel to go into the port; this is the ground of our right. Suppose the captain was the agent of Groverman, and Fox the agent of Hooe &. Co.; by whose fault or orders was the vessel carried in? Clearly by the orders of Hooe & Co. No man has

a right to order my servant; but if he does, and by that means misleads him, and a loss happens, he must be liable. Hooe gave instructions to the master how to act. If it was lawful for him to do so, then he must be considered as the owner, and the obedience to his orders, in all its consequences, is chargeable to him.

Hooe

V.

If it was not lawful, then his improper interference, if it mislead the master, is also chargeable to him. Groverman. Unless he was the owner he had no right to instruct the captain; it was a wrongful act. If he was the owner, there is no pretence for not paying the de

murrage.

If it should be said that the act of parliament referred to in the special verdict, and which is generally called the hovering act, justified the orders to carry' the vessel into port, the anwer is, that the parties must be supposed to have understood that business, and agreed to the risk.

The finding of the jury respecting the orders not being ready, although it is apparently in favour of the defendant in error, is not considered as materially affecting the case, because, by the agreement, Hooe & Co. were not bound to have the orders ready, but might keep the vessel waiting, upon paying the stipulated demurrage.

Swann, for the plaintiffs in error.

The questions which seem to arise in this case are these:

1. Are Hooe & Co. liable at all for this detention? 2. If they are at all liable, are they liable in this form of action?

1st. The vessel had a right to go into the port of Falmouth, and was, therefore, in the regular course of her voyage.

If so, then the seizure and detention of the vessel by the British government was not by the default of Hooe & Co. and the case is not within the contract.

Hooe & Co. were not bound absolutely to have the orders ready on the arrival of the vessel at Falmouth; but the contract provides for the case of the orders not being ready, and Hooe & Co. were at liberty to detain the vessel at Falmouth for orders, on paying a stipulated sum for demurrage. The words of the 5th provisional article are, that "If the vessel is detained over 24 hours at Falmouth, demurrage shall be paid at the rate stipulated in the charter-party." The parties are presumed to know the course of trade in the voyage about which they were contracting. Cowp. 605. Bond v. Nutt. They must have known that the vessel could not lawfully lay off and on more than 24 hours without

* 226

Hooe

V.

Groverman.

* 227

being liable to seizure under the act of parliament. This
created a necessity for the vessel's going into port..
Not indeed a physical necessity; that was not re-
quisite to justify it. It was sufficient if in prudence
and discretion it was necessary and advisable for the
general benefit of all parties concerned. Cowp. 601.
Bond v. Nutt. Park, 310. Burn's M. In. 103. 133.
The words, "at Falmouth," strongly indicate this to have
been the understanding of the parties themselves;
and the very action itself, founded upon the contract,
for demurrage at the port of Falmouth, is a direct
affirmance of the right to go into the port.
If the ves-
sel had no right to go into the port, then demurrage can-
not be claimed under the contract, because it is a case
not provided for by the contract. If the vessel had a
right to go into the port, then she was still in the regu-
lar prosecution of her voyage at the time when she
was seized by the British government, and, consequent-
ly, the detention cannot be chargeable to Hooe & Co.
They have covenanted only against their own default,
and their own acts. Groverman had other means of
securing himself against all other risks. He ought to
have insured; if he has not, it is his own fault; he
stands as his own insurer, and his remedy is by re-
course to the British government. Suppose the vessel
had been seized at Havre de Grace by the French go-
vernment; can it be supposed that Hooe & Co. would
have been liable? It will not be contended that they
would; and yet there is in fact no difference between
the two cases.

Hooe & Co. cannot be considered as the owners, be-
cause, in the first place, the hiring of the vessel was not
general, it is of the tonnage only; this excludes the cabin
and the captain's perquisites. Groverman employs the
master and crew, and stipulates for the good condition of
the vessel during the voyage, and for the safe transporta-
tion of the goods, the danger of the seas only excepted;
thereby clearly making himself responsible for the fidelity
and good conduct of the master and mariners.
verman was, therefore, clearly the owner of the vessel
for the voyage. He covenants to instruct the captain to
touch at Falmouth and wait for orders. He covenants
that the captain shall proceed to such port as shall be
mentioned in those orders. Now he never would have

Gro

done all this, if the captain was not subject to his control. If, then, the captain was the servant of Groverman, and has improperly carried the vessel into port instead of laying off and on, how can Hooe & Co. be liable for the consequences. It is said, because Fox advised or directed it; and Fox was the agent of Hooe & Co.

Then it amounts to this, that Groverman, by his agent the captain, and Hooe & Co. by their agent, Mr. Fox, finding the vessel to be in danger by laying off and on, have consulted together as to the best means of preventing loss to all parties, and agreed that the vessel should go into the port. To which of the parties is this error, if it is one, to be imputed? Certainly to neither; it was their mutual act, intended for their mutual benefit, and neither has a right to complain, or to make the other liable for the subsequent, and perhaps consequent, seizure by the British government.

Fox had no authority to order the vessel, except as to which of the ports mentioned in the provisional articles, she should go. The directions to the captain, therefore, to come into the port, must have been considered by the captain only as matter of advice. He was not bound to follow it.

Suppose I advise an act to be done, and it turns out unfortunately; am I to be liable for the consequences? Suppose even that the vessel went in purely to oblige and benefit Hooe & Co. yet they would not thereby become liable for accidents happening without their default. If my friend in coming to serve me, receives an injury from a third person, am I liable?

If the provisional articles do not provide for the vessel's going into the port, yet Mr. Fox and the captain acted correctly. A case arose not provided for by express contract; they did right, therefore, in mutually consulting for the common good of their employers, and although the result of their deliberations may have proved unfortunate, yet neither party can criminate the other.

2. If Hooe & Co. are liable at all, it is not in this form of action.

The covenants which they are bound to perform are, 1. To pay the freight.

*2. To furnish orders at Falmouth.

2. To pay so much per diem for their own detentions.