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Scottish Court of Session Decisions >>
Mason v Adams. [1758] Mor 13988 (11 July 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor3213988-080.html Cite as:
[1758] Mor 13988
Whether one is liable for the malversation of those under his authority? - Complaint raised in name of another without his authority.
Mason v. Adams
Date: 11 July 1758 Case No. No 80.
How far the proprietor of a ship is liable for the in-put master.
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John Adams being employed as his Majesty's master mason in the works of Fort George, and having occasion to bring by water carriage to the fort, from different places in the Murray-frith, quantities of stone, lime, and timber, he caused build at Leith an open boat of a particular make fit for that purpose; and, by a mutual contract, anno 1751, engaged John Wilson “to navigate the said vessel to and from the quarries of Cromarty and Monlochie to the port of Ardersier, or to any other place Mr Adams shall direct, paying him certain sums for each voyage; and the said John Wilson bound himself to obey the orders and directions that should be given him by Mr Adams.”
Gilbert Mason, merchant in Leith, brought an action before the high Court of Admiralty, against John Adams, as owner of the said vessel, and against John Wilson, in-put master, founded on a bill of lading, dated 21st September 1756, subscribed by the said John Wilson, acknowledging to have received on board said vessel at Thurso, for behoof of the pursuer, deliverable at Inverness, 326 bolls oatmeal; subsuming, That when the meal was delivered at Inverness, there was a short-coming of 27 bolls, value L.17 Sterling; and therefore, concluding, That the defenders should be decerned conjunctly and severally, &c.
The following defence was made for Mr Adams, That Mr Wilson was employed by him for carrying stone, lime, &c. to the fort at Ardersier, and that if Wilson, without his authority, ventured to employ the ship for any other purpose, such breach of duty could not bind Mr Adams. The Judge-Admiral found Mr Adams liable. But a bill of suspension was past upon the following reasons; 1mo, The proprietor, in whatever branch of commerce he employs his ship, is understood to give the master put in by him all the trust that is necessary for carrying on that branch; and particularly, to make contracts of afreightment, &c. which must bind the owner; 2do, As the owner is bound to fulfil such bargains, so he is liable for those he employs; But, 3tio, If the the master make a bargain without authority, the owner is not liable to fulfil, nor consequently for the negligence or fraud of the master: The last supposition is the present case. It appears, by the contract betwixt Mr Adams and Wilson, that the boat was destined for a certain purpose, and that the master's power was limited to that purpose. Therefore, if the pursuer insist that the master had a commission to make profit by freighting the ship at large, it is incumbent upon him to prove the fact, either directly, or at least by showing, that, under the eye of Mr Adams, Wilson was in use to hire out the vessel.
