Howard v. Ross, 3 N.C. 333, 2 Hayw. 333 (1804)

Nov. 1804 · North Carolina Superior Court

3 N.C. 333, 2 Hayw. 333

Howard vs. Ross.

«T'HE defendant owned a vessel, which he had contracted with A Noble to leave to his management and custodythat Noble should victual and man htr, and take in freight when and where he thought proper, and should account for one third of the pro-fi s to the defendant. He took in a load, on freight, at NeW R ver, for Howard, to be cairifcd to Wilmington, pui into an intermediate port, took in more lading, and thereby the Vessel and cargo was lost.

Ir xas argued for the defendant, that the action lay against Nobie, and not againsL Ross, under the above circuit stances, if >die was the owner pro tempore, be being completely Irom under the controul of R jss, who could not oblige him whilst the contract lasted, to observe any directions Ross could giv.t him.* The defendant’s counsel cited 2 Str. 125f, and tlxe Affiericaa-Raw Mercatoria, 103.

Taylor, Judge.

Koss continued- to he owner notwithstanding this contract, and is liable for the undertakings and miscar-. triages of Noble, The case in Mollov, 229, 230j is not law,, so. far aa it states the master only to be liable for a deviation-or bar-ratry.

There was a verdict for the plaintiff, and a motion made fora new trial ; and on the appointed day was fully argued ; and. now on this day, being near th.e close of the term, the court gave, judgment.

Taylor. Judge. An owner is liable for- the contract of his. captain j and is discharged from hisliabily, if he parttd with the manangemeat and' controul of the vessel to the captain, upon a contract to receive part of the earnings of the vessel. Here however the contract was made by- the owner himself-, witb-ibe plaintiff, which shews he still considered himself an owner. As to the damages to be recovered, the owner should not be charged, but for the value of the goods at the port of reception. The case cited from 2 Burrows, 1171, and other cases upon the subject, the principles of which are analogous to the present case, seem decisive upon the subject, and there must upon this ground be a new trial, unless the plaintiff will remit the difference between the value at the port of delivery, and that at the port of departure.

The plaintiff remitted accordingly, and had judgment for the residue.