boucher v lawson how far owner of ship be liable for default of the master at  commonlaw a action on the case be bring against the defendant for that the  plaintiff deliver a parcel of good into a ship whereof the defendant be owner  bind from the river tagus to London where the good be to be deliver and that  the defendant undertake to carry the good and deliver they at London to the  plaintiff the plaintiff aver that the ship do arrive at London and that the  defendant refuse to deliver the good to he the defendant plead not guilty on a  trial at guildhall before Lord Hardwicke and a special verdict be find as  follow that the defendant be sole owner of the ship that be appoint one  Fletcher master of it that the plaintiff put the good on board this ship to be  carry from the river tagus to London where the plaintiff be to pay so much  fraught for the good and that the good be to be deliver at the port of London  on the nine of August damage of the sea except which bill of lade be sign by  the master and find in haec word they further find that the ship do arrive  safe at London that the plaintiff have make no assignment of the good that in  September the plaintiff make a demand of they and that the defendant refuse to  deliver they and that the plaintiff be ready to pay the defendant his fraught  they further find that the good be Portugal gold and that to export it be a  unlawful trade accord to the law of Portugal they last find it to be usual  when any gold be export from Portugal to this kingdom for the master of the  vessel to take the whole fraught to his own use without account for any part  of it to his owner unless there be some special agreement between they to the  contrary and that in the present case there be no such special agreement  Cunningham Mr serj darnel for the plaintiff argue that this do not differ from  the common case of owner of ship who in like manner as carrier be liable for  the master neglect in respect of fraught mors and sluice Mod lev vent and a  action against the master of a ship for damage the plaintiff have receive by  his negligence it be strong insist upon that the action do not lie against the  master but shall have be bring against the owner themselves but the court hold  action lie either against the owner or master for that they be both entitle to  a action for the fraught the defendant in this case plead that eleven arm man  come on board he under pretence of press and take away the gold but this  defence be not allow of the court compare this to the case of a common carrier  boson and Sandford Carth salk lev comb show a action against the owner and  adjudge that the action do lie against the owner or master for default of the  master for either of they may bring a action for the fraught Brandon and  peacock at the sit after easter term Geo at guildhall before Raymond Ch just a  person put tobacco on board a ship the master run away with the ship and  tobacco the good be insure the person that own the tobacco apply to the  insuranceoffice and receive the value of it the insuranceoffice take a  Cunnigham er p authority from he to sue the owner and the Ch just hold that  the action lie this have be likewise the practice in chancery vern a man have  undertake to carry good in a light and the light be overset and the good  damage and a bill be exhibit to discover the owner Mr Abney for the defendant  argue that without impeach any of the other case the present may be  distinguish from they the verdict have find among other thing that this trade  of export gold be a illicit trade accord to the law of the kingdom of Portugal  and in this particular trade it be usual for the master to take the whole  fraught to their own use without there be some special agreement to the  contrary and that here there be no such agreement mich Geo in canc burrow v  Jemino Stran a suit be commence at Leghorn about the acceptance of a bill of  exchange draw there and the judge of the court there be of opinion that the  acceptance be not sufficient the party afterward happen to come into England  the plaintiff bring his action here but the defendant in who favour the  judgement at Leghorn be bring his bill in chancery and king Lord chancellor be  of opinion that the court of Leghorn have a general and proper jurisdiction of  the cause their judgement be bind and conclusive to the court here and  thereupon grant a perpetual injunction his lordship cite a very remarkable  case of a person try in Portugal for murder and acquit who Cunningham come  into England be afterward arraign at the old Bailey accord to the statute h  but plead his former acquittal and it be allow if therefore court here will  take notice of the particular determination of the court abroad they will  certain have regard to the general law of a country declare any thing a  unlawful trade and not give any countenance to action bring upon such illicit  commerce the owner of a ship be to be consider as a general master and the  master as his servant a master be not answerable for the act of his servant  but where he act in execution of any authority give he by the master salk skin  if a servant abuse a distress he only be answerable hard m servant sell false  stuff without my commandment no action lie against I otherwise if by my  commandment in the present case there be no privity between the plaintiff and  the defendant the defendant be whole a stranger to the bill of lade which be  make between the plaintiff and the master and the fraught as be find by the  verdict be the master and not the owner the usage and custom of merchant which  be part of the general law of England and ought to be take notice of by the  court of justice be that in this case the master of the ship be entitle to the  whole fraught and the owner to no part of it the reason the court go upon in  the case of boson and Sandford and the other case cite be that the defendant  be common carrier of good for hire and be entitle to the fraught it be say  there that the action certain lie against they as they have all the profit and  all the recompense which be otherwise in the present case neither be these  case of a unlawful trade as hire be the ground of the action on the custom  against common carrier so be fraught against the owner of ship the undertake  be not the undertake of the owner but of the master if the servant of a  carrier carry good without the privity of his master or his receive a reward  for take they the master be not Chargeable Middleton and foul salk to the same  purpose pale and west Trin Geo a action against the Hampstead stage coachman  for a shirt that be lose raym Ch just hold that a servant by take the profit  or by a special undertake be liable but that the master be not answerable  where he do not receive the profit or by a special undertake be liable but  that the master be not answerable where he do not receive the profit Mr serj  darnel in reply argue that this can be distinguish from the case of boson and  Sandford for the very bill of lade give the owner a action for the fraught and  as this be a unlawful trade in the kingdom of Portugal it can have no relation  to the contract between the owner and the merchant if a man steal good and put  they on board a vessel there be Cunningham no doubt but the owner will be  entitle to fraught as to the master not be liable for his servant but in the  exercise of his trade this be in the master trade for it be the trade of owner  of ship Cunnigham er p to carry good if a servant nail a horse the master be  liable a delivery to a servant in the way his master employ he be a delivery  to the master palm Hardwicke Ch just this case seem at the trial of very great  consequence as it concern on the one side one of the most beneficial branch of  the English trade as it relate to the security that person have in trust their  gold on board English ship and on the other side as it concern the security of  owner of ship that they may not be charge by the default of their master  further than reason require but since by the Act of parliament make last  session owner of ship be liable for good take in by their master without their  privity no further than their interest in the ship and in the fraught it be  not now of so great consequence as the point of law here bring in question  only concern the party in this suit and will not affect any further  determination have this cause be direct within the reason of boson and  Sandford or moss and sluice the special verdict will not have be direct to  have be find these two case be under the like reason as be likewise that of  Brandon and peacock and therefore must be take for law not now to be shake  that where there be a trade ship concern in a voyage it must be consider in  the nature of a common carrier and the owner be liable for the negligence or  fraud of the master these case depend upon two ground first that the owner  appoint the master and second that the fraught come to the owner here it be  find by the verdict that the last of these reason fail and therefore it will  stand upon this single ground that the master be the owner servant be liable  on that account the first difference attempt to be make between this case and  the other be that this trade of export old be find to be a trade prohibit by  the law of the kingdom of Portugal but though the trade be find to be there  unlawful yet the verdict have not find the consequence of it whether it may  incur the loss of the ship or a personal penalty on the master only and I be  not satisfy that this will make any difference the carry on indeed of a trade  prohibit by the law of England be of material consequence and it be say that  the party in that case shall receive no relief as they be both sharer sin and  therefore the law will not give one a remedy against the other but if it shall  be lie down as a principle that because good be prohibit to be export by the  law of any foreign country from whence they be bring therefore the party shall  have no remedy or action it will cut off all benefit of such trade from this  kingdom which will be of Cunningham very bad consequence to the principal and  most beneficial branch of our trade nor do it seem to have be ever admit the  reason go upon by king Lord chancellor in the case of burrow and Jamino be  certain right that where any court whether foreign or domestic that have the  proper jurisdiction of the case make a determination it be conclusive to all  other court but I never be satisfy with the chancellor opinion in grant a  injunction upon it for if the objection be a objection at commonlaw therefore  the party shall have be dismiss to have take advantage of it there in the time  of car a suit be bring on a contract of marriage the sentence of the  ecclesiastical court at Turin be give in evidence and alloy to be conclusive  but though a determination in a particular case may be bind here yet that will  not make a general rule that their law be conclusive in this kingdom therefore  it do not seem that the unlawfulness of this trade in Portugal since it be  lawful in England will have any effect on the determination of this case the  next distinction make be that it be find to be usual where any gold be export  from Portugal to London that the master shall take the fraught to his own use  without account for it to his owner unless there be some special agreement  between they to the contrary this point if any will make the material  difference but it want to be a little more clear up the bill of lade be find  by the verdict in haec word and in it be these word to pay fraught for the say  good now fraught be the fruit and earn of the ship by the rule of law belong  to the owner and the master be only entitle to his wage and therefore have it  stand on the bill of lade and nothing else the court will have take it that  the fraught belong to the owner but the question be whether the subsequent  find this usage will make any difference now and as to Cunnigham er p that the  point will be whether this be to be take as a strict custom or for no more  than the common practice and that the owner only make a allowance to the  master of this part of the fraught for that they pay he less wage or on any  other consideration for then it be only a allowance of part of their profit to  the master and they be notwithstanding liable and therefore if this find of  the usage be to be take consistent with the bill of lade and the reward for  carry the gold be fraught and consequent by the rule of law belong to the  master they be within the case of boson and Sandford page just as to the find  of a usage if a common carrier shall allow his driver the carriage of some  small thing as perquisite the master will without all doubt be still liable  and that be only a private agreement between master and servant and only a  different way of pay his servant wage Cunningham lee just be of opinion that  as the owner be in general entitle to the fraught for good import it seem not  to be a proper consideration for the court whether he be so in this particular  case but that they must go on the general notion of the law in these kind of  imply contract on which action be allow against carrier and owner of ship and  that as to the trade be prohibit by the law of Portugal the right of a English  subject can be alter by the general law of any other country unless there have  be a particular determination in his case cur order it to stand over