1. An owner of a vessel is liable for the contract of his captain. But if he parts with the management and control of the vessel to the captain upon a contract to receive part of the earnings of the vessel, he is discharged from his liability unless he himself makes the contract for taking in a cargo on freight.
2. For the loss of a cargo by the captain's mismanagement, damages should be given according to the value of the property at the port where it was received.
TAYLOR, J.
Ross continued to be owner notwithstanding this contract, and is liable for the undertakings and miscarriages of Noble. The case in Molloy, 229, 230, is not law, so far as it states the master only to be liable for a deviation or barratry.
There was a verdict for the plaintiff, and a motion made for a new trial, and on the appointed day was fully argued; and now, on this day, being near the close of the term, the Court gave judgment.
TAYLOR, J.
An owner is liable for the contract of his captain; and is discharged from his liability if he parted with the management and control 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, with the plaintiff, which shows 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.
Plaintiff remitted accordingly, and had judgment for the residue.