IMAGE EVALUATION TEST TARGET (MT-3) %# ^€^ 1.0 I.I lAilZB III lU lil lAO L25 III 1.4 |Z5 1 2.2 ill 1.6 ^ V] /a '/ /A fliotegKiphic Sdences Corporatioii 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m^ iV iV <^ 4^4^' 'v- CIHM/ICMH Microfiche Series. CIHJVI/ICMH Collection de microfiches. Canadian Institute for Historical IVIicroreproductions / Institut Canadian de microreproductions historiques Tachnlcal and Bibliographic Notaa/Notaa tachniquaa at bibliographiquaa Tha Instituta ha* attamptad to obtain tha baat original copy avallabia tor filming. Faaturaa ot thia copy which may ba bibiiographically uniqua, which may oitar any of tha imagaa in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chackad balow. 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This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiqu* ci-dessous 10X 14X 18X 22X 26X 30X y , 12X 16X 20X 24X 28X 32X Th« copy filmsd h«r« hM b«tn r«produo«d thanks to th« g«naro«lty of: Library of tha Public Archivas of Canada L'axomplairo film* fut raproduit grAca k la giniroaiti da: La blbliothiqua dat Archivas publiquas du Canada Tha imagaa appaaring hara ara tha bast quality possibia considaring tha condition and lagibility of tha original copy and in kaaping with tha filming contract spacifications. Original copias in printad papar covars ara filmad baginning with tha front covar and anding on tha last paga with a printad or illustratad Impraa- sion, or tha back covar whan appropriata. All othar original copias ara filmad baginning on tha first paga with a printad or illuatratad impraa- sion, and anding on tha laat paga with a printad or Illustratad imprassion. Las imagas suivantaa ont iti raprodultas avac la plus grand soin, compta tanu da la condition at da la nattatA da I'axampiaira film*, at an conformity avac las conditions du contrat da fiimaga. Laa axamplairaa originaux dont la couvartura an papiar ast imprimis sont filmAs an commandant par la pramiar plat at an tarminant solt par la darnlira paga qui comporta una amprainta d'imprassion ou d'illustration, soit par la sacond plat, salon la cas. Tous las autras axamplairaa originaux aont filmis on commandant par la pramlAra paga qui comporta una amprainta d'impraasion ou d'illustration at an tarminant par la dornlAre paga qui comporta una talla amprainta. Tha last racordad frame on aach microficha shall contain tha symbol — ^ (meaning "CON- TINUED"), or the aymbol y (meaning "END"), whichever appliaa. Un dea symbolaa suivants apparattra sur la darnlAre image de cheque microfiche, selon le cas: la aymboia — ► signifie "A SUIVRE ', le symbols V signifie "FIN". Maps, piatea, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one e:;po8ure are filmed beginning in the upper left hand corner, left to right and top to bottom, aa many framea aa required. The following diagrama illuatrata the method: Lea cartes, planches, tableaux, etc., peuvent Atre fllmAs A des taux de reduction diff6rents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, il est film* it partir de I'angle aupAriaur gauche, de gauche h droite, et de haut en bes, en prenant le nombre d'images nicessaire. Les diagrammea auivanta illuatrant la mithoda. 1 2 3 1 2 3 4 5 6 itetfliS^-V A SUMMARY OP THK um of Commerce anD iMitgatiom 1 4- A ii'*iwia,hiiii ■» ipMi .„^a*. ' L, i h iiu;:iiiiN( uliiili SIilpi aiMJ (i (« ) Duriifj; the Votfane M>6 (M.) On votniiiii into Port H>S (4.) On arrival in Port if>. CHAP IV. Of Master*, Mariners, and Apprentices. ^ \. Of the Hiring of Seamni Ill \ 2. Master's Jutliorittj over the Seamen . 112 ^ 3. Of the J)ischarf>,inf; of Seamen 1 1 4 § 4. Of Seamen's H'atxes, Karninji;, Loss, Forfeitures, Time of Patjment, Dead Men's [Vaji;es 119 ^ 5. Of Ilospital-monetj and Penalties ib. § r». Of Apprenlieen to the Sea-serviee ib. § 7. Provision for' shipwrecked Mariners, f tf»c Laws of Navigation, (ii^toins, Seizure"; Causes of fdrlriluro of Vcs«jcU or Cargoes; Offences Op Inst Sinppiiii; ; Ships' Registers ; respec- tive duties rights, aiul re-iponsihility of Owners and Masters of vesst'U ; special du- ties of Ma«iters, on leaving port, during the voyage, coming into port, and on arri- val in port ; re^i»cctivc duties of IVIasteris, Mariner^, and Ai)prentices ; Articles, Master's Authority, discharge of Seamen; Payment, loss, and forfeiture of wages; Hospital Duty ; regulations relating to the Plantation Trade ; Trade with the United States; Imports, Exports, Bonds and Cer- tificates ; Master's duty on arrival at the Plantations ; Rules relating to Seizures there. — Laws of Newfoundland, general regulations concerning the Trade and Fishery; Lnports, Exports, regulations concerning Rooms, Stages, &c., concerning the Police, Ma>ters and Servants, and Courts of Newfoundland. XV This work was approved, as was also an abridgiiuMit which the Compiler was advised to make of it, containing the essence and spirit of the hirge work ahove-inentioned. This abridgment he is now encouraged to lay before the public, by the wishes of the principal mercantile houses in St. .lohi.N, and in the district of ('onception-Uay, whose liberal encouragement and friendship he takes this opportunity publicly to acknow- ledge with heart-felt gratitude. \ IIARHOUK nUACP, District of Comrpfiun-Udj/, NcKfoundliind, Dlc. 'i7, 180H. I i \ 1 SUMMARY ur riiB taUju of Commfrcf nnn ji)a\jigat(on. PART I. I.AWH OV <>NTRAtm. CHAP. I. Of Contracts in General. § I. J\. Contract or Aj^reoment is n trans- action ill which each party comes iiiuler uii obligation to the other, and each, reciprocally, acquires a ri|i;ht to uliat is promised by the other. Contracts are either uprcss, where tiic terms of the agreement are openly uttered and avowed, at the time of nuiking the agree- ment ; or implied, or such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. A Promise is in the nature of a verbal co- venant. If therefore it be to do any explicit act, it is an express contructj as much as any covenant; and the breach of it is an equal injury. But in the following cascs^ no verbal D ( lA MMM\|IY or TIIK l.KVfi Of 'l I proniior wliiill lie Ki'Miciciit (o ground iiii iiction ii|Hiii, lint lit tlio It'ikit MoiMi* iKilr iir iiuMiioriiii- diiiii ol' it mIiuII III* iiu(i«' III \vrilill^:, iiiid vifj^iird by (li«* |iiirfv to l)i> < linr^ril tlicri'witli \r/. ( 1.) Wlirn* uii cxt'ciitor or a(liiiiiii proiiiiHo, tlioii^li in writinp^, mIi.iII bo void: (.'{.) \\ here tiii)^ a^;roniuMit in made upon conaidrriilion (if niurriu^;<* : (4.) W here uii) (diitract or muU> in made of laiidM, tcnr- uwMitH, or licrcditamrnt!!, or uixy intrrrHt there- in : (5 ) W here there in anv agreement that ii not to he performed within the ^^ear. Hot all eontraetH and u^reeiiientii wliieh, thoii^;h not in writing, are in their own nature free iVoni all dan|ji;er of introducing fraud or perjury, are out of the purview of this Htatute. F'arole evidence of u parole ronimtinictition be- tween the parties to a written agreement, is not t (it* IsM'iitv oiii*. no piTNoii 4IUI liiiid liiiiHi'ir, r\('i<|)( il be ior (iMiiinoii iicn'HHurirH Hiiitahlr to (lirir qua- litii'H. OtlitTwim', if an a^rrrnicnl >\i(li an infant hr williont sctnlilanrc oC liciicfit to liini, it will in all caHC!! In* void, lint » conlraci niadi* t)v an inl'ant, !>> tilt* athicrand contrnt of iiii friiMnN, lias liccn ticridrd to In; |;ood. If an infunt liiinl Iiioh' IT hv lnnifl in d jn'iidltif for the imvnicnt ot'rven Konnion ni'n'HMarir«t, lu* inav aid rwards avoid iIim bond. Hiit if, al'lcr foil ap>, in; ratilirx aiiv contract made while indrr ap>, hv. is bound . C-^. ) 'VUvy nnini hv good. Every contract or au;rcctn<'nt (Mi^lit to liuvi: a (////>/ pro ({iio. Tlic word aa^vccment is not nalislicd unless tin; coH^iflei'dtion brtwcrn both the paitirs ap- |n*ars. This considtTadon may Ix^ cither a g:ood, or a valuable (uie. A ):,(joU consjdcra- ti(Mi is sncli us tiiat of blood, or of natu- ral love and allection. A rnhinblc considera- tion is such as money, marriage, work done, and the like. Contracts made upon u good cuiiHideratioii only, arc frequently set aside, u2 k 30 SUMMARY OF TUB LAWS OF nltcn tliry tend in their runncqucnccs to de- fraud crcditoiH or otIuM' third persons of their jiis^ rip,lit. Hut a contract for any valuable consideration can never be impeached at law. (3.) They must be lawful. All contracts against a positive law, morality, public deco- rum^ or that are entered into with a view to evade the law, are void; and neither party can recover from tlie other money paid upon such a contract, if it was known by brth par- tics to be illegal when made. (4.) They must be possible. Therefore a promise to be non-suited, wher there is no action, or to spare a piece of ground, when there is none suck., is void. (5.) They must be certain. Therefore a promise to deliver goods, or a promise to pay money, in a short time, is void for uncertainty as to time. I I § 3. A Deed is a writing sealed and deliver- ed by the parties. It is the most solemn and authentic act that a man can possibly perform with relation to the disposal of his property. In order to be valid, a deed must be written or printed, read, signed, sealed, and delivered by the parties, aad attested by witnesses. An obligation or Bond, is a deed whereby the obliger obliges himself, his heirs^ e^ecu- A; COMMERCE AND NAVIGATION. 21 torfl, and administrators, to pay a rrrtaiii mini of money to anotlior at a day appointed. Tlicic h generally a eondition added, that if the ohiiger does sonic particular act, the ohliga- tion shall he void, or else remai:i u\ full force. If the condition he not performed, the hond hecomcs forfeited, or absolute at law. But the party can recover no more than his princi- pal, interest and expences, if the bond was for payment of money ; or the damages sus- tained upon non-performance of covenants, and the like. * In treaties for an agreement, a wilful and industrious concealment of a material fact by one of the parties in order to profit by the ig- norance of the other, or any kind of compul- sion by violence, threats and the like, whether by one of the parties or by a third person, will avoid a bond or deed. But the violence which may give room for the reccission of a contract, ought to be an unjust violence : legal means, such as the imprisonment of a debtor, can never pass for a violence of this sort. If a bond be of twenty years standing, and no de- mand be proved thereon, or good cause of so long forbearance shewn to the court, upon pleading that it was paid on the day, it shall be intended paid. ^1. 1 •! I'S^ •/'. u I; m '■ i hi 22 S'.'MMAIIY OF TIIF LAWS OF CHAP. 11. Of Contracts of Sale and Exchange, ^ 1. Sale or Exchange is a tranflmutation of property from one man to another, in con- sideration of some price or recompence in va- lue. No contract for the sale of goods to the value of ten pounds or more, shall he valid, unless the buyer actually receives part of the goods sold by way of earnest on his part, or unless he gives part of the price to the seller, by way of earnest to bind the bargain ; or unless some note in writing be made and signed oy the party who is to be charged with the con- tract, or his agent. And no contract for the sale of goods, under the value of ten pounds, shall be valid, unless the goods are to be deli- vered within one year, or unless the contract be made 'n writing, and signed by the party who u to be charged therewith. As soon as the bargain is struck, the pro- perty of the goods is fully transferred to the buyer, and that of the price to the seller. If the seller warrants the goods to be sound, (the warranty being upon the sale, and not after it) he shall make compensation to the buyer, if they are not so. But no general warranty will extend to those defects that are obvious \ » 11 COMMERCP. AND NAVICATION, 2:3 to one's senses. If no express njjjreenient is made for Hie priee, (lie law eonelndes that tlie piirties intentionally agreed that the real value of the i^oods should he paid. " If he does not pa^ you, I \v"ll," is a collateral undertak- ing!^, void unless in >vritin<; ; hut if one sa^s, " Let him have the goods, I will he your paymaster," he shall he intended to he the real huyer. All sales in fairs and markets on market- days are hinding not only hetween the parties, hut also on all those who have any right or property in the goods. But goods heing sto- len, and sold out of market overt, the property is not altered, and the owner may take them wherever he finds them. If a man huys his own goods in a fair or market, he shall not he hound to tender the price, unless the property lias heen previously altered by a former sale. But if the original vender who sold without having a property in the goods, comes again into the possession of them, the original owner may then take them. And if a p«..*son sells goods as his own, and they prove not to he his property, the huyer may have an action, and shall recover the value. II § 2. To make the transfer of property in lands and tenements by sale, valid, it must be ^t" 24 SUMMARY OF THE LAWS OP . 1 'ill s , •■ by a written (l(M>d iiulcnted, iiiulfr seal, and enrolled within six moiitliH after the date of the deed, in one of the Kinj^^'.s courts of Record in tile county where the lands lie ; and there must he good consideration given. With respect to the sale of Ships, it is a rule that no sale of a vessel, or any part thereof, shall vest the property in the buyer, if the seller has neither property in them, nor authority to dispose of them. A part-owner cannot dispose of the share of another. If a ship be sold, " with the tackle, apparel, furni- ture, and other instruments thereto belong- ing," the ship's boat is not conveyed by these words, but must be expressly mentioned. When a ship is in the country of its owner, and a delivery of actual possession is possible, such delivery is necessary to convey the pro- perty to the buyer, in case of the sale of the whole ship. For if th** buyer suffer the seller to remain in possession, and act as owner, and the seller in the mean time becomes bankrupt, the property will be considered as remaining in him, lo be disposed of for the benefit of his creditors. This rule also extends to mort- gages of ships. Till the mortgagee takes pos- session, the mortgager is owner to all the world, and he is to reap the profits, and also to answer all such repairs or '^ther cxpences as I \.^^. BET" COMMEHCB and NAVrC.ATION, 25 arc not a charp; upon the sliip it«-flf, in specie. But aftrr the nu)rtu:afr('e has tHkcn possessiun, he then heconu'N entitled to the hrnefits, and liahle to the hurthens, as if he were real owner of it. In ease of a sale, or ajijrcement for sale, of a fart only, it is suflieient if the seller, having delivered the muniments of his title, cease from the time to act as part-owner. When a siiip is ahroad, a perfect transfer of the property may be made by assig-nment of the grand bill of sale, and delivery of that and the other documents relating to the ship, ivhieh will enable the buyer to take actual possession, as soon as circumstances will per- mit. But the buyer or mortgagee should not delay to take posscs-sion of the ship, upon ts return to the country of its owner. Whenever any alteration of property in a ship takes place, in whole or in part, between any of his majesty's subjects, no transfer of this kind shall be valid, unless made by bill of sale, or instrument in writing, containing the certificate of registry in words at length. When the alteration takes place in the port to which the ship belongs, such sale shall be ac- knowledged by indorsement on the register before two witnesses, together with the names, residence, and occupation of the purchasers. And they or their agents shall deliver a copy 1 \ i v\ I 'I «■ 96 SUMMARY OP TIIR l.WVH OF 1 f '\\ il! of n\U'\\ iiulorsctnnit to (he prriton niitliori/ed to niuke r(*i:;istry, nvIio shall iiidorso an <>iitry thrrcof on (lie altlduvit or oa(li upon >vlii('h the orif;inal re|;>;iH(er was ob(aine(l. Rut in any case where part of the property of any dhip is transferred, if the owners, whose |)ro- pcrty therein remains unaltered, wish to have a certifieate of regi«(ry dc novo, inst«*ad of the indorsement on the old re^^ister, it may be done, provided all the laws in force concerning registry be complied with. When an alteration takes plarc during the absence of the ship from the port to which she belongs, the transfer shall be made by a bill of sale, containing in words at length a reci- tal of the certificate of registry, and a copy thereof shall be delivered, and an entry in- dorsed as in the preceding case. And within ten days after the return of the ship to the port to which slic belongs, the indorsement shall be made on the register. If the owner, at the time of such transfer, resides in foreign parts, such indorsement may be made within six months after such transfer; in which case, within ten days after the arrival of the owner, or his agent, in this kingdom, (if the ship be in any port thereof; and if not, within ten days after such ship's arrival) the indorsement shall be madcj and the other rc- Wi inp the icli she y a bill a rcci- a copy dry in- wilhiii to the rsement owner, foreign within which of the (if the if not, 'al ) the ther rc- ■' COMMRnCF, AND NAVI(;ATI0N. 27 p^nliidon above mentioned shull be complied with. I |)on every transfer of property to another port, the ship shiill be re^intered dc uuvOj and the former certificate cancelled. No transfer of any share of a Hritish ship, Rritish owned, may be made to a foreigner, without the consent in writing of the owners of three-fourths in value at least, tirst had and indorsed on the certificate of registry before two witnesses. No sale of any ship, or part thereof, is valid, until the requisites of the .statutes are fully complied with by the parties of the con- tract; and if between the execution of the bill of sale, and such complete compliance, the interest of a third person takes eflect, as in the case of the bankruptcy of the seller, the transfer will be wholly void, even though the price has been paid. It will be prudent to recite in a second, and in every subsequent bill of sale, the in- dorsements made in pursuance of every pre- vious transfer. li ( fl 1^ It 28 SUMMARY OF TMK LAWS OF I I \ ( IIAIV III Of (Jonlrnct$ of llnJlmrnti, ^ 1. nailincnt is a (l4'li\(*ry of fi^ooih in tniHt, upon a contract tliut tlir trust nIiuII he fuitlifully executed on the part of th(> 1)aih'e, and that tlic ^oods Mhall he re-delivered an noon as the time or use for whicli tliey were baih'd, shall have elapsed, or he performed. A Bailee may he liahle to ati action for mishchavini; in the trust reposed in him, either through ordinary, |<;rosfl, or slight neglect. OrdindVij neglect is the want of that care which every man of common prudence, and capable of governing a family, takes of his own concerns. Cross neglect is the omission of that care which every man of common sense, how inattentive soever, takes of his own property ; or in other words, a violation of good faith. Sliiyfit neglect is the omission of that diligence which every circumspect and thoughtful person uses, in securing his own goods. I § 2. There are six sorts of bailments : (I.) Deposit, or a bare bailment to keep for the use of the bailor^ without rccompence. t COMMKIICB AND NAVIGATION. 99 Here (lie builcc ii rlinr^rablr only for i^rott (*i.) I.cmUnt^ for use, or ii bailment of a th'iiifi; for a ccrtuiii timr, to he umcJ hy (lie borrower for ii certain time wilboiit paying for it : bere (lie bailee in respoiiHibie lor slifi;ht nejifleft. (.'?.) lAttiu}:^ tn hire, or first, a vaH occusioncd by any of tliosr raiiMi'ii Nvliii'li, citlirr accordiiip; to tlic fj^ciicrul riiloN of law, or tlio partirular coiitrart of tlir particN, ailord an cxciihc for the iion-perform- aiK'o of the contract. To make the carrier answerable, (1.) The ^oodd imiHt be lo-st >vhile in \i'm posseHsion^ or sole cure. (2.) lie is liable only ho far as he is paid. (.3.) If u box be delivered /;enerally to a carrier, and he accepts it, he is answerable. Uiit if he asks, or accepts it conditionally, he is bound no further than he undertakes : but it is his business to make a special accept- ance. (4.) A delivery to the carrier's servant, is a delivery to himself, and shall charge him : but they must be such goods as it is his cnstoni to carry, (5.) Where goods arc lost which have been put on board a vessel, the action may be brought against the master, or against the II .til 1 t n NCMMARY OP TIIR I.AWN Of nwnfr: if tlirrc in innrr Ihiiii on<», it mint be n^uinit nil (lu* par(-o>vn«*r«. ((), ) A«t (lir currier in bound to di'livcr tbf fi^ood*! to lli<> ^olllli^;ll^^, or aciid notirc to biiii, urcordiiifi^ to tin* dirtrrtioii. br coiitiiiiiffi liublfl till \\\'\% iM done. Ah tbr bailrr i^ nn^wrrnblc to tbi* builcr, be iiball of coiirHr buvc a ^riirral action nfj^ainnt a Htruii^cr, as if be >vcrc tlic real owner of tbe ^oodii. ^ .1. Wben money is lent on a contract, to receive not only (lie principal, but also » com- pensation for tbe use, tbis in called interest, wbicli is in no case to exceed five inr cent. for one year, Ollierwisc sncb contract nball be void, and tbe lenders sball forfeit treble tbe amount of tbe principal. And tbe bor- rower may be a witness after be bus paid tbe money. I i . ii. II iMt be fCT the COMMItncK AND NAVlOATtUN. CHAP IV. 0/ C0ntrartiiiii mnn of nioiiry 11 iiiiidiiilly 4i('((iiin'(l uiul Ioh(. DclitH mfc dividni into (I.) DfbtN of rtcord, or luiii* of money wliicb apprur («> bu due by the cviduuco uf a court of ilrcord. (5J. ) DclitH by spvcialtt/, or sprciul ror- tractM, whereby ii NUin of money bec'ome<4, or is aeknowledp'd to bu due^ by duud^ or iu- •trument uiuler neul. (.1.) Debts by simple contract, v^bere the contract upon which the obligation uriscii, it aseertained by mere moral evidence, or by noteM unhealed. This olasx comprehendH a vaiit variety of oblii^atious, the most important and general of which are debts by bilU uf ex- change, and promiiiMory notes. § 2. A Rill of Exchange may be defined to be " a written order or request," and a Pro- niiiiHory Note, " a written promise for the pay- ment of money, absoliitelv, and at all eveitls." The pernon who makes the bill is call^'d the Draii'cr ; the person to whom it is addressed, \ 3i SUMMARY OF TUP. LAWS OF 1 1 ■. ■ I, the Drmcec ; and the person in vvliose favour it is made, the Pa:rc. The Pu)'ee may, by writing his name upon the back of it, or by verbally authorizing another person to do it for him, assign over his w' ole property in it to another person, and he io another, and so on. And every person thus passing a bill, and writ- ing his name on the back of it, is called an Jndorscr : the person to whom it is thus as- signed over, is called an Indorsee, and any one who happens for the time to be in possession of the bill, is called the Holder of it. Promissory notes, or notes of hand, may be assigned over and indorsed in like manner as bills of ex- change ; and when indorsed, they are exactly similar to bills of exchange. A^y order or promise which, from the time of making it, cannot be performed without the payment of money is a bill or note. But in order to ^e good, a bill or note must, first, be for th-: payment of money only : secondly, it must carry with it a personal and certain credit given to the drawer or maker : thirdly, it must be payable absolutely and at all everts. An indorsement written on a blank note or cherk, in the form of a bill or note, will bind the indorser for the sum and time of payment whicb the person to whom he entrusts the note or check so indorsed, shall insert in it. \ i ill t COMMERCE AND NAVICATION. 35 Any person capable of bindin^^ himself by a contract, may draw, indorse, or accept a bill of exchange or promissory note, and sliall be considered as a merchant for that purpose. If a bill or note be made or indorsed to a woman wlicn single, and she aficrwards marry, the right to indorse it over belongs ^o hjr hus- band; in cases of bankruptcy, to the assignees; and in case of the death of the person who has the ''ight to transfer a bill or note, to his executors and administrators. In order to obtain payment, the holder of the bill is, as soon as it comes to his hands, within hours of business, according to the known custom of the place, to go to the drawee, and offer his bill for acceptance, which, so as to charge the drawer witli costs, must be in writing under, or on the back of the bill : it may also be by collateral writing. But any words which shew the party's agreement to Ihebill, 'vi'! amount to an acceptance, as to the principal. An agreement to accept on certain conditions, is discharged if the conditions are not complied with : otherwise it is not, if they are. Acceptance of a bill dru»vn upon two partners, by one of them, will bind both, if it concerns the } ^int trade. Acceptance by a servant for his master is good, if the servant expresses such acceptance to be for his maS" c 2 ■1 A !ri 1 36 SUMMARY OP THE LAWS OF a^ i •I M { r, itv : ofhcrwisc he is liable himself. And as soon as the bill is accepted, the acceptor bc- coiiies liable to pay it. Kut a picseiitment for acceptance is not necessary^ except npon bills payable ^vithin a limited time after sight. No delay warranted by the common course of business, or occasioned by keeping the bill in circulation at a distance from the place where it is payable, is improper : but a delay by locking it up for any length of timc^ is. If the Drawee delays or refuses to accept the billj or has become insol^'ent^ or bus ab- scondedj the holder must protest it fj " •'- acceptance/' which protest must be inade in writing, under a copy of such bill, by some notary public, or where there is none, by a substantial inhabitant, in the presence of two witnesses. To such of the parties as reside in the place where the presentment was made^ notice must be given at the farthest by the ex- piration of the day following the failure of the attempt to procure an acceptance ; to those who reside elsewhere, by the next post, or where there is no post, by the ordinary mode of con- veyance, by the first regular ship bound for the place to which it is to be sent : and it is no objection, that, if sent by a ship bound else- where, it would by accident have arrived soon- er^ though the holder wrote letters by that ."1- COMMERCF AND NAVIOATION. 37 ship to the plucc io which the notice was to be sent. It is advisable for each party, iinine- diately upon the receipt of notice, to give a fresh one to such of those persons who are liable over to him, against whom he must prove notice. The Indorsee of a bill of ex- change may bring an action against the drawer and indorser, on its being returned for non' acceptance, without waiting till the time it would become due. And in the case of a bill protested for non-acceptance, it is the usage of the country in Jscwfoundland, that the defend- ant give security for the payment. The time when a presentment for payment must be made, depends upon the time when the bill or note is payable. When payable within a limited time after a certain events or at sight, it is not in fact payable until two days^ if the third is a Sunday, or great holi- day^ and if not^ until three days after the ex- piration of that time. These are called days of grace. Upon the last day of grace, and within a reasonable time before the expiration, of that daj', a bill or note must be presented, for payment. Upon a bill payable within a^ limited time after sight, the time must be computed from its presentment for acceptance : but the day of sight is not to be reckoned one of the number mentioned in the bill. The r L A M .38 SUMMARY OF THE LAWS OF I ! bankruptcy, or known insolvency of the drawee or mcker, is no excuse for a neglect to make a presentment, or to u^ive notice. Upon a non-acceptance, or non-payment, the holder of a bill or note may f>uc ill the persons liable to him on account of such non-ac- ceptance or non-payment, cither at the same time or successively. All the antecedent parties arc liable to the holder on account of non-accep- tance or non-payment. But though he may recover judgments in all the actions, he can . > once recover the sum payable by the bill or note, and the costs. An action may be brought upon a non-acceptance before the ex- piration of the time limited for payment. In an action upon a bill or note^ the plain- tiff is in general entitled to recover the money payable thereby, with interest from the time when the bill or note would have been regu- larly payable, down to the time when he will be entitled to final judgment, and all incidental expences occasioned by non-acceptance or non- payment. Upon a foreign bill, the re-exchange forms a part of the expence of the return; and let the bill be returned through ever so many hands, the drawer is liable for the re- exchange upon each return, even though the dishonour of the bill should be expressly or- dered by the country on which it is drawn. r COMMEHCK AND NAVIGATION. 39 If any accident Imppcns by tlie neglip^cncc of tli: holder of a bill of exclianp^c, in preju- dice of the drawer, he lias lost his remedy against him. When a bill is defaced, the drawer and all the other parties arc discharg- ed ; and the holder of a bill, by mutilating it, makes it his own. Forginis; bills of exchange, or notes for money, indorsements, or the number or prin- cipal sum of any accountable receipt, is felony without benefit of clergy. Any forgery com- mitted on bills of exchange said to be drawn in countries not belonging to his Majesty, in any foreign language, with an intent tu defraud any foreign prince, state or country, or any company of persons, is felony. And whatever vi'xW make a man accessary before the fact in felony, will make him a principal in forgery. The innocent holder of a forged bill of ex- change, for which he has given valuable con- sideration, shall recover against the acceptor who accepted it, not knowing of the forgery. Stealing bills of exchange, notes, &c. is felony in the same degree as if the offender had robbed the owner of so much money. If a bill of exchange, indorsed in blank, be stolen and negociated, an innocent Indorsee for valuable consideration, shall recover upon it against the drawer. y i I ■i ?F ^ Wfi 40 SUMMARY OF THr, LAWS OP 1 If the holder of a bill, by any accidenf, lose.% it, he must cause iiiforniation to be made by a notary public before witnesses, that the bill is lost or mislaid, requiring that payment be not made of the same to any person without his privity. But a bill which has been lost and advertized in the newspapers, is nevertheless recuvcruble by a person who has bond fide discounted it, though from the person who came improperly by it. » M • Pi ■^'1 § .*?. The Laws of Bankruptcy are calcu- lated for the benefit of the trades, and found- ed on principles of humanity, as well as of justice. It may be sufficient here to observe^ that by the appointment of the asignees, the property of every part of the bankrupt's es- tate is as fully vested in them, as it was in the bankrupt himself; and they may pursue any legal method of recovering it by their own authority : but, they cannot compound any debts owing to the bankrupt, nor refer any matters to arbitration, without the consent of the major part of the creditors in value. They must keep books of account of all sums and effects received, which every creditor who has proved his debt, may inspect at seasonable times. They are not answerable for losses oc- casioned by their own nfCfssrtn/ acts : but;, if an .! ^i \ rt^ » : COMMRRCC AND NAVIGATION. 41 i assignee trusts a person witli the payment of nioncv, who Tails, and the money i» lont, such 8ssigt:ec shall he answcrahle over to the credi- tor*, unless he was anthori/cd hy them to ap- point such agent. The bankrupt is to deliver up to the assignees on oath, to he administered by a magistrate, all his books of accounts, papers, and writings then in his possession ; and also to discover those which are in the possession of others, to make a full disco- very of all his effects and property, and to attend the assignees whenever called upon, by notice in writing, in order to assist them in making out the account of his estate. If he has made an ingenuous discovery, and has acted in all points to the satisfaction of his creditois, they, or fouf parts in five of them, in number and value, may grant him a certi- ficate of the same, under their hands and seals, by virtue of which he becomes entitled to a certain allowance out of his efl'ects, according to the proportion of Iiis debts, that his effects "will pay : and is moreover discharged for ever from all debts owing by him at the time he became a bankrupt. But a bankrupt cannot claim such certificate, allowance, nor discharge, if he has given with any of his children above £^100. for a marriage portion, unless he had at that time sufficient left to pay his debts; I \ 'I 4i il I « * ■ r il 43 SUMMARY OF TUR LAWS OP nor if he Unn lost nt niiy one time j£7}, or in the whole £\0(), within a twelvemonth, hy any manner of^umin^, or watering whatever ; nor, if he neglectn to di<4C'over uny lictitioui debt that may be ulFered to be proved against the estate. Where a bond conditioned for the repayment of a sum of money, by u principal and a surety, has not been forfeited till after the bankruptcy of tiie surety, the debt cannot be proved under his commission, and he may be sued upon it notwithstanding his certificate: as for example, if A. at the instance of 1). accepts a bill payable to his order, not having any eifects of B. in his hands, and B. becomes a bankrupt before the bill becomes due, and A. pays it when due to an indorsee. But if A. draws a bill of exchange on his correspondent abroad, which is afterwards protested for non- acceptance, and he fails before the return of the bill, the debt being contracted when the bill was drawn, may be proved, and is dis- charged by the certificate. Securities payable at a future day, for goods delivered to such as become bankrupts before the time of pay- ment, may also be proved, and paid in pro- portion with the other debts, deducting in- terest from the time of payment, till the time they would have become due. The diifcrcnce w COMMRRCR AND NAVIGATION. 43 brtwrrn the price of |2;oo(l>i contracted for, and the actual produce from a re-sale thereof, ill conHe(|uence of (lie baiikriipt'.s having de- clined to fulfil Imh eii^ageineitt, may be proved under the comniiHHion. A. bad purchased of 1). a quantity of ntarcli whicb lay at a certain place, at ,-£6 per cwt. by bill at two months, fourteen days after delivery, the weight was to be ascertained afterwards. H. ordered bis ^varehouse-keeper to weigh and deliver all his starch to A, who in consequence thereof, ob- tains the delivery of a part, and before the whole is weighed and delivered, becomes bank- rupt. H. refused to deliver tbe rest: the assig- nees of A. brought an action against him, and the court held that B. may refuse to deliver tbe residue wbich is unweigbed ; tbat the de- livery of part is not a construci've delivery of the whole, where any thing remains to be done, as weighing, to ascertain the price. While any thing remains to be done to the commodity, the complete right of property does not attach. Otherwise it is when tbe payment of tbe price is the only act necessary to be done to entitle the party to tbe delivery of the goods : the weighing and delivery of a part is, in this case, a virtual delivery of the whole, although the price is not paid. K. B. 1805. T. 45, G. 3. M'l n lU 7i 41 SUMMARY OF TIIR I.AW^ Of It All ^nodfl ill the ponacMHioii of a bankrupt, by uliich he ^uiiiH a general credit, are liable to hiM rreditorN, that in to lay, all niich floods Mhieh the bankrupt liaN in his oxen ri,u;ht only: for ihoiip^h in poxseHHion, if empowered to dispose of p)odii in trust, they ure not liable to the bankruptcy. Until an act of bankruptcy, the right of disposing of bis goods remain* by law with the trader, unlesH he exercise it by way of a voluntary and fraudulent prefer- ence of a particular creditor, in contemplation of bankruptcy, in which case, all payments and cojiveyances so made, arc null and void : Lord EUcnboroufi^h, 1804. And from the time that the first act of bankruptcy was committed, all transactions of the bankrupt arc null and void^ either with regard to the alienation of his property, or the receipt of his debts from such as are jirii\y to his bankruptcy. '^i.\ i 11 'jK OOMMIRCB AND N AVIC ATIO!<. 45 CHAP V Vf Marine Contratlt, Marine Contracts arc of tliinp; in the nature of a niort^a^e of a nhip, when the owner takes up money to enable him to carry on his voyage, and pledget the ki'il or bottom <»f the ship as a security for the repayment. If the sbip is loit^ even though the cargo should be saved, the lender lof»ci also his whole money; but if she returns in safety, then he shall receive back, his principal, and also the premium or interest agreed upon, however it may ex«eed the legal rate of in- terest. And the ship and tackle, if brought home, are answerable, as well as the person of the borrower, for the money lent. Re.spojidcntia is when the loan is not upon the vessel, but upon the goods laden on board of her. In this case, the borrower personally, and not the ship, is bound to answer the con- tract : and the lender must be paid his princi- pal and interest, though the ship perish, pro- vided the goods are safe. V' {it 7/ r 46 SVMMAHY op TIIR f.AWtt Of kl i The riiki whicli (lie Iciidrr tiiidrrtukc* (o run, arc, for (lir mo^t pnrt, aiu'cilird in the rondititin of (hi* hiind, vix. firi*. rnrniira, nirn of \^nr, or uny ulhrr ('Uiiiial(ir<« (h»( vhall iin- avoidtilily hiip|)(Mi: mich ii('('idon(<« ii« orcnnion a total \on%, and did not nrinr tVoiii (In* dcfVcd of (h«* (hin^ on which llir Iokii wuh inudr, or from (he iniarondiirt of(h<' borrower, or of (he ina<«(or. 'rhr(iiii(' whrn (hr rink bc^iiiH dcpcndii upon (hr iiiidiro of (he ('oii(riU'(. In vma of th(* vo)up;e not (akin^; phire, (he ohlifi^er Nhall receive unljr bin prinCip. ! with uituul intereit. ^ 2. A policy of Marine Insurann' in a con- tract by which the iiiNiirer iinder(ukc!i, on the payment of a prcininin or mim ecpiivalent ( the hazard run, t(» indeiniiify the iiuiired, • 'iit those pcriU to which the nliipN or i^oods insured are exposed in the course of the voyage. Hut all insurances, interest, orno interest, or with- out any fiir(her proof of iiUerest than the policy itself, or by way of fj;amin)i; or waiter- ing, or without benefit of .salva_u;e to the in- surer, arc totally null and void by law. Insur- ances made upon privateers fitted out by hit Majesty's subjects, solely to cruise against his enemies, or upon goods or cfTccts from any ports in Europe or America, belonging to Spain or Portugal : or on any foreign property w \ ■^■•^ f COMMRR(R AND N AVKi.iTION. 47 iiiiil fornj^n iliipi, urc rxrcplod. No iv-rt*ii»ir- anvt' limy hv iiiudr, uiiIcm^ tin* iiuiiror be iii«ot* vfiit or die ; in iM(li«*r of wliicli cum** aiirli iiiMiircr. Iiii cxecutori or n««i)^ii« may iiinkn rc-unmiriiiKT (o (lie amount of tlir mim intNiirod, and it iiiiMt lie expreincd in the policy to be a re-n*iiiranre : and thi« proliihitioii extend*) to every caae of a re-aamiranec in bin Mii jetty 'f doniiniona. Another kind of illefi^al inmiranco ii called (lonhh insurnnce, where the saniA perton u to receive double NntiKfuciion for 'he tame loan, by reason of bin liuvin|]; made two inauruncei upon the aamc thitifi^. In auch a case, the inaiired may upon the firat action recover the whole sum insured from one aet of the undcr-writera ; and tl) sc shall stand in his place, for a contribution to be paid to them by the other set of inaurera. For it ia a fixed rule, that " u peraon inaured more than oncCj shall receive only one satisfaction. \ i i I warn wm 48 SUMMARY OF THE LAWS OF CHAP. VI. OJ Policies of Marine Insurance. l( '.I ilJj I' § 1. Policy is an instrument signed by the insurci' only, containing the terms of the agreement between the insurer and the insured. When the property insured is valued in the policy, the policy is called valued : otherwise, it is called open. A policy must riccessarily have the following qualities: (1.) It must, be duly stamped. C^.) It must specify the names of the persons insured, whether principal ''wncrs, consignors, &c. of the property so io be insured. (3.) The names of the under- writers, and the sums insured. (4.) The nama of the sliip; unless it is " upon any ship or ships." (6.) The nature of the property insured, whether ships, good?, &c. (6.) The place where the ship takes in her cargo, those at which she may touch and stay during her voya£.2, and that to which she is hound. (7.) The time wh-^n the risque sh.all begin and end. (8.) The various perils against which the insurance is made. (9. ) the premium ; and lastly, the exact date of the execution of the policy. COMMERCE AND NAVIGATION. 49 The ' § 2. No corporation, or persons acting in any society or partnership, except the Royal Ex- change AHHuranco Oflicr, ami the London As- surance Office, may underwrite any p(»licy of insurance on sliips, goods, or merchandize, at sea, or going to sea ; on pain of duch contracts being void, aikd all sums underwritten therein, being forfeited. But any person, or number of persons, may underwrite policies of insur- ance, provided it be done, not jointli/y or in a private firm, or partnership, but severally, in the nature of a private contract by each in- dividual concerned in the insurance, signing the policy: each individual being liable only for the sum he has undertaken, and there being no joint responsibility. § 3. The most freciuent objects of marine insurance arc ships, ainl vessels; goods, and merchandize ; freight, aid bottomry bonds. On a policy to insure 8, ship and furniture, this includes the provisions for the crew : but when the ship alone is ii.su red, this docs not extend to extraordinary wa«;cs paid to the seamen ; or the provisions consumed, even in consequence of the ship having been unex- pecteaiy detained in any port by -ome accident, a storm^ or the like. In an insurance on a Greenland ship, " on the ship, tackle, and fur- 'i I i s l\ a 50 SUMMARY OP TUB LAWS OP nitiirc/' this docs not extend to lines and tackle used in the Rshery, unless they are expressly mentioned. The wages of seamen ran in no case be in- sured. Seamen may^ indeed, themselves, in- sure such goods as they purchase with the wages they receive abroad ; but as for those wages, or any things or goods, which they are to receive in lieu of wages, at the end of the voyage, they cannot insure them. The cap- tain may also insure goods which he has on hoard, or his share in the ship, if he is a part- owner : upon this principle also, the governor of a fort, in a foreign settlement, may, in time of war, insure the fort against capture by an enemy. The captain of a ship, who has, in time of war, taken an enemy's ship, may in- sure his prize, even before condemnation. With respect to insurances upon goods, it may in general be laid down as a rule, that no insurance can be made on any species of goods and merchandize, intended to be imported or exported, contrary to the laws of this king- dom ; or those of its depend ances, or the law of nations. Such insurances are void, even where the insurer is apprised of the nature of the trade, and subject both parties to a penalty of .1^500. over and above other penalties. Either of the parties concerned in such insurance, who ;f gaged in the coasting trade, or io short voy- ages, are insured for a limited period of time : and in such case, the risk begins and ends with the term, wherever the ship may then happen to be : and though during that term she re« ceives her death's wound, yet, if sh£ survives the term, the insurer is not liable. In general, the risk on the rigging, tackle^ furniture^ and provisions of the ship insured, continues no longer than they are attached to, or remain on board the ship. But, where it is necessary to pul these articles on shore, during 111 rri5^' T" COMMERCE AND NATIGATION. 55 t repair, anr (if II aliip in diatrrna dor^ tor tlii* prrNrrviidoii of (Ik^ »Iii|» iiikI tMir^ro, volnntariht uihI (liiihrratili/, by jrUiaoii or otlirrv^iac, niiil wliiitrvrr (liiiiui^i* litippnia in coiiHtMiiK'ncc of it, ■ voiiii(l('(l, III! ( litir^CH iiuiirrril in roiiNcqiKMirc ol* an rxfniordiiiiirv (|uariiii(inr, <&«-. nil tlirot* cliiir^;!'* niiiv Ix* iiroiiy;lif iiidi ii ^i;«Mi<'nil ii\ri'iif;;(% and niUMt he irinilMiiMrd liv tUo undrrvvritrn in pnipoi'lion fo tlic '^ ini inHnrrd. 'I'lu'y iiri' ultio iiiililir ((» piiy to tlio inniirrd (lie expcnccH of aalvdnf, «>r an ullosvnncc made for Htivini^ cillier vliip, or pxidn, (ir holli, I'lom uiiy of tlic dnn- p;crN iiiMurcd a^tiinHt, in vunvn of wreck and re* t'upturr. In ciinv* of wri'ck, (lie hulva^c iH iio( fixed; Imi( in caMe of diMa^^reenlell(, i( ia (o hn netded hy (lire(Miri^;lil)oiiriiip; }u4(ireN, and paid hy (lie innHter (o (he perHoiiH concerned in (Iia prciervation of (he Hliipti or carj^o, vvidiin for- (y dnys af(er (he service performed. The tial- va|;;e (u he allowed in caNeM of rc-cap(iirc i» fixed hy studUe, (o one eig(h, if hy % kiiiji^'s ship; one sixth if hy a privateer or other ves- sel ; and if hy ho(h, it is left (o (he discretion uf (he court of admiralty. 5. All odicr perils, losses or niiHfor(nnes, (hat shall conie to the hurt or damage of (he said ^oods, &c. and ship, or any par( (hereof. But i( is f^encrally provided at the hodom of (he policy: 1. That corn, fish, sail, flour, and seed, are warranted free from all avtraf2;e. 2. That sugar, tuhacco, hemp, flax, hides, and skins, are warranted free from average, under '41 > i -„ ■■»-*-. ^* mmm i:.i ■A i . (i2 SUMMARY OP THE LAWS Of five pounds " per cent:" and 3. that all otlifr goods, and also the ship and freight are war- ranted free from average, under three pounds per rent, unlets, in any of these three cases, the averages he general, or the ship be «tiiunded. These words a:e an exception, not n condition. ■ X i , t '!^ I' Ml hh I 2. The losses happening in consequence of the perils^ ^j. thus insured against, may be either partial or total. A partial lo3S means a damag*^ which the ship or goods, may have received in the course of the voyage, so that the whole or the greater part of it, has notwithstanding arrived in port. The insurer is liable to all losses arising from the ship being strsLnded^ and in all case where there is a general average. But all other par> tial losses under the respective rates abovemen* tioned, are excluded. A total loss is not only when the property in* sured is irrecoverably gone, but also when it is in ^uch a condition, in consequence ot some of the perils insured against, as to be of little or no value to the assured, or that the voyage is intirely lost. In these cases ^.ne insured may abfl7idon, and call upon the underwriters for the whole amount of his insurance. A ship not heard of within a reasonable time, is pre- lumed to have foundered at sea. In cases of »:" ^ [\ COMMEUCE AND NAVIGATION. 63 capture by enemies, or even of arrent, detention, or embargo by a prince not an enemy, tlio assured may abandon as soon as he hears of it, and while the capture, or total losb occasioned thereby continues. In many cases where the salvage is very high, as one half, for example; the expences very great, the object of the voy- age defeated, the assured may abandon; but he must give notice of h to the underwriters within a reasonable time, as soon as he hears of the loss; otherwise he cannot recover after- wards as for a total loss. It is to be observed that by the exception in the policy there cannot be a total loss of corn, fish, salt^ fruit, flour, or seed, but by the absolute destruction of such articles. So long as the thing exists, however damaged, it cannot be said to be lost. After abandonment, the insurer stands ex- actly in the place of thr* assured, and shall bave all the advantages of the salvage. If after the loss is paid, compensation be made to the owner, this shall go to the insurer. If the ihip, after abandoment, arrive safe, the in- surer shall have all the profit of the voyage ; aad the assured is entitled to nothing except for so much as he was insured: but if after payment for a total loss, it afterwards turns out to be only a partial loss, the insurer shaU ~\i '•)■■ 1*1 ,lil- If . I r'll 64 SUMMARY OP THE LAWS OP not recover back the money so paid to tlivill be void. In case of shipwreck, or other misfortune, the effects that arc saved continue, till aban« donment, the property of the owner, whose right to abandon cannot be prejudiced by any act of the captain, until he has been informed of what has happened. It is the peculiar duty of the captain, who has an implied authority^ not only from the insurod, but also from all others interested in the ship and cargo, to do whatever he thinks most conducive to tlie gene- ral interest of all concerned ; and they arc all bound by his acts; the insured, if he neglects to abandon when he has it in his power so to do; and the insurers, if, after notice of aban- donment, they suffer the captain to continue in the management. The sailors likewise are bound to save and preserve the goods to the best of their power ; and while they are so employed, they are entitled to wages, so far at least as what is saved w ill allow : but if •t. '' 'i ' ^ t I COMMBRCR AND NAVIGATION. 65 they re fuse to assist in this. th cy shall have neither wag(;s nor reward , When the loss is udm itted to be total, and the policy it a valued one, the assured sliall receive the whole sum insured, subject to such deductions as may have been agreed by the policy to be made in case of loss. And a proof that the goods valued were on board is sufti- cient. But upon an open policy, he must also prove the value of them, which value, not ex- ceeding the sum insured, is the sum which the insurers are bound to pay. In the case of a partial loss, the like inquiry is to be made into the amount of the loss, whether the policy be valued or open. A. partial loss upon cither ship or goods, is that proportion of the pi line cost, which is equal to the diminution in value, occasioned by the damages. An iiisurcr is never to be involved in the rise or fal of the market ; and no spe- culation of the assured can increase or diminish the amount of the loss. When the quantity of damage sustained, and the amount which the underwriter is liable to pay, are settled, it is usual f trthe underwriterto endorse on the policy : " Adjusted this loss at — per cent." And after an adjustment has been signed by the underwriter, the assured, in case of refusal of pa>meiii, has no occasion to go into a proof of his loss, or any of the cir- £ ■ i: I .1 kZ.:i- no SUMMARY OF TIIR LAWS OF r \ 1' ):! if, •if cumstanccs rcKpcctiiig it ; unless fraud were used in obtuiiiiu|^ (he iidjustment, or there had been some misconception of the law or fact upon which it was made. CHAP. VIII. Of the variout Ch'cumstanccf and Acts tchich mnjf vacate u Polktfi A policy of marine insurance is made void, 1. By frauds or the least shadow of it; whe- ther it be the act of the party or of his agent. It is suflicient that the contract be founded on deception, or that the conditions of it be not strictly complied with, to make it void. Both parties should know exactly and disclose to each other, every material circumstance re- lating to their agreement : and any false alle- gation, any undue concealment, (even though nut the efiect of intention, but of negligence or mistake only) of such circumstances as may naturally be supposed likely to influence the determination of either party; or a misrepre- sentation, will, in this case, operate as frauds, and vacate the policy. 2. By an implied war- ranty every ship insured must be " tight, staunch, strong and sea worthy," at least at the time of sailing: she must be furnished ,» i A I ' COMMERCR AND NAVIGATION, 67 with every thing necessary for the purpose of safe navigation : she must have a captain of competent skill, a suflicient crew, and a pilot on board, wherever it is customary to employ one. These are implied conditions without which the policy cannot stand. The policy will also be vacated, if the condition of the ship be altered ; or the ship itself changed, without the consent of the underwriters ; or if the property insured be removed to another ship, during the course of the voyage, with- out such consent, or without unavoidable neces- sity. But the ship may not only be changed from necessity, but the proceeds of goods saved from shipwreck may be invested in new goods, and the risk «vill continue on these in a new ship: and in thi& ca^e, the insurers shall pay every cxpence whatever, which is the ne- cessary consequence of changing the ship, so that the assured mav at the conclusion of the voyage, be exactly in the same situation as if no such change had taken place A ship insured must be navigated not only according to the law of nations, but also ac- cording to the particular treaties between the country to which she belongs, and other coun- tries. But a policy underwritten by an insurer, with full knowledge that it is meant t > pro- tect a smuggling trade with a foreign country, E 2 !vli 1' 'i i m 1. To join convoy at the usual place of ren* dezvous. 2. To avoid an enemy, or a storm, or having received material damage in her voyage, which cannot be repaired at sea, to refit at the nearest place. ^^ ! 'i ! I I i! hi 70 •IVMMARY OP THE LAWS OP S. Wlwii the mantcr in furcfd by Ihf crow io go out of the roiirfir, it is nrithcr deviation nor barratry. And in all caiei where an in- Hured ifhip quitM the course deirribcd in the po- licy from necemity, iihe must puriun the new voya^^c of necessity in the direct course, and in the shortest time; otherwise the policy will be discharged. 4. A warranty must be most strictltf and //- tcrallij performed. To constitute a warranty it is nccesiary that the condition or contin- gency that such a thing shall he done, or shall happen, be inserted in the policy, or written on the margin, or at the foot of it. But if a po- licy refers to certain printed proposals, these will be considered as part of the policy. And unless a warranty be literally performed, the policy will be void, ipso facto. In a warranty '* lost or not lost, warranted well this ninth day of December, 178-1', " it was held that it was sufficiently complied with, if the ship were well at any time that day ; though the policy was underwritten between the hours of one and three in the afternoon of that day; it was proved that the ship was well at six o'clock in the mornings and was lost at eight o'clock in the same morning. When the warranty is neutral property, it is sufficient if it was so when the risk commenced : but, if such a war- < 4 CUMMRRCR AND NAVIOATION. n as in in is so r- ranfy is false, the policy is void, and tho as- sured alialt not recover, even though (he loss should not happen in consequence of the pro- perty not heiiig iieutrAl. On a warranty " to sail on or hi fore a cer- tain day." If a ship once breaks (e;round, and is faJrly under sail on the day, with intent to proceed on her voyage, the warranty is com- plied with, though she should be obliged to put back instantly, by a storm, an embargo, or an enemy, before she gets out of the harbour. Rut if a tihip warranted " to sail on a certain day," docs not sail on that day, though she should be delayed for the best and wisest rea- sons, or if warranted " to sail after u certain day," she sails before that day, the policy is void. " Warranted to depart with convoy" means, ]. that the ship will leave the port and sail with convoy, without any default in the master. 2. That she shall depart with convoy from the place where convoy is usiialhj had : and from the port where she is, to such usual place of ren- dezvous, she is protected by the policy. 3. That she shall keep with convoy during the whole voyage. But if, without any the least default or neglect of the master, the ship, by stress of weather, loses convoy and is taken, the policy is safe. Nor can this species of war- ^1 ft\ { f,ru 72 ',) , s NUMMARY OP TIIF, l.KWS Op ranfy, in jiii_y roMr, be ronntriied in npponitinn lo the g-oneml wsAjf^t^ of trade, or tim ro^ula- t trdt id(* bi Rut if overnincnt. iliip, Beparatcd from the convoy, nejjflectn to ii«e every eiideavoiirn to join it a^^ain an soon ai ihe ii able, tlic policy \^ill be void. Killings instru'tions from the commander of the convoy, must be olitained io fulfil tlie war- ranty of Hailiiijr %vi(|i convoy. But if the mas- ter, by tcmpeMtiious weufher, or other uni^void- able circuniHtaiiccs, \* absolutely prevented from obtaining them, after having honestly done every thing in hiii pov^er for that purpose, it u a sailing Avith convoy within the terms of the warranty^ provided he takes the earlieit op- portunity to ok> n them. The convoy meant by this warranty is a na- val force under the command of a person ap- pointed by government for the protection of merchant-ships and others, during (he whole voyp e, or such part of it as is known to re- quire such protection. Sailing with any other force, than the convoy regularly appointed, warrant itifify 'ty- > ^: . for the hin* of u nhip; or the rurriuf^c of ^oodst hy non. Shipii arc freighted cither hy the ton, or by the ^rcut : and v^ith renpcct to time, at so iniich /u r month ; or at a certain Hum for tiie >vlioU> vo}ap;e. And thii may be done liy virtue of two dintinrt specien of contract: the fir^t of which, in the contract hy which an entire ship, or at leant the princi- pal part of it, i% let for a determined voyap:e to one or more places : this is usually done by a written instrument, signed and sealed, and called a chnrter-ixtrti/, and which is executed bctweeti the owners and merchant, if the ship is let at the place of the owners' residence ; or, otherwise, between the master, in behalf of him- self and owners, or himself and the merchant; or between them all. The common law always construes charter-parties, as near as may be, according to the intention of the parties. If the master of a ship enters into a charter-party *' for himself and owners," he may release the freighters, without advising with the owners. But if the owners let out to freight such a i I ( i 74 • VMMAnY OP Tim f,AW4 Of I' •hip " wlirri'(»f A. II ii ino«lrr." and hr only CoveiuiitH ni tilt! bottom, and •iilMcribr* hit nam«, hi« ri>lcu*r will not liiiul or aiFcrt thn owiieri of thn ahip, r\cii thoti^^li ht* arulii nncl drlivrrs the deed : their rulruar oo thi* othrr hand Hhall inrliidc the iiiaatcr. Thr iiirrrhant who hai 10 hired a ahip, may ladt* it rithrr with hiii own f^ooda, or if hv. haa not aiifticiriit, may take in fi^ooda of othrr peraona ; or hn may wholly iiiidurlet i\\e. ihip to another. The charter-party uaiially rxprcaaea the burthen of (he ship, and like every other deed, takea iti t'lFect and operation from the diiy on Mhich it ii neaU'd and (IvUnrtd, and not from ita date, if different from that of the delivery. Aa by a short delay the leaaon or object of a voyngie may be loat ; if cither party is not ready by the time appointed for the loadinp; of the ship, the other may seek another ship or cargo, and bring; an action for the damages he has sustain- ed. Qui in charter-parties there is com- monly an allowance promised to the captain, in rase he should be detained, by default of the freighter, which is to be paid daily as it be- eomex due; and at the expiration of the time limited, the master, having duly made his pro- tests, is at liberty to proceed. In a clause of demurrage it is better to mention working or rtmning days expressly. The payment of de- i »■ I' COMMKRCB AND NAVIOATIONt 75 lip, ind mumper iliptilatrd in hv made wfiitf a iliip it vraitiii^ fdf CQuvofj, cea»e* as looii iia tlir con- voy ii rcudy to depart ; dniiiirrafj^r whilr wiiit- iiiflif for a carffo, vvunv% y^Uvn the iilii|. in fully laden, and (he n(M'('<()iary (IniruucrN ohtiiined, altluiiigli tlir idiip nmy in rither iu<««* liapprn to he detiiiiu'd l>y iidvcr«(* windu ; und if nhv han once net Nuil und drpiirttd, hut In iinrrwardt driven bark into port, the eluini of deiniirnif^c in not (lierehv revived. A chnrtrr-purty in tlift evidence of the contract for the conveviutcc of the ^<»odii. \\ hen ^uo(U are put l \ il '{ \ it' SUMMARY OP TIIR LAWS OP u i: P '4'1 I }\ I' the yoy&f^c, and will continue during the whole course (»f the vo^'age, and during al'i unavoid- able delays not occasioned by capture, or by such circumstances as give rise to general ave- rage. In all mercantile contracts a month is to be understood of acalendnr, not a lunar month. When a ship is iVeighted for so many tons or thereabouts, this is commonly understood to be within five tons. In case of a jettison, the ship afterwards reaching the place of her destination, the value of the goods thrown overboard is to be an- swered to the merchant by way of general ave- rage, and the value of the freight thereof, al- lowed to the owner. If the master be com- pelled, for victuals or repairs, to sell part of the cargo, the owners must pay to the mer- chant the price which the goods would have fetched at the place of destination, and shall be paid the full freight, as if they had been con- veyed thither. If in time of war, a neutral vessel carrying goods belonging to the subjects of one of the belligerent powers, be taken by those of the uther, in which case the goods are lawful prize, but the ship is to be restored, the captor pays the whole freight; unless the goods are contraband according to the law of nations, or the ship be employed in bringing the produce of the colony of a belligerent power to the mo- if 'if* COMMERCE AND NAVJOATION, 81 tlicr-country, or in tlie coasting trade in t)\ti lamc country, or in carrying the goods, even of ncutralM, directly from the mother-country to its colonv, or from one Iiostile nation to the colony of another hostile nation in alliance with it, if those trades were not, in time of peace, open to the neutral nation, whose ship is so employed. But if a ship be employed in carrying the goods of an enemy fiom a port of one nation hostile to the captors, to a port of another nation equally hostile, freight shall be allowed to the owners of such ship, if neutral. If goods have been so damaged during the course of the voyage, as to be of no value to the merchant, or to fall short, in value, of the amount of the freight, the whole freight shall still be paid ; if such deterioration proceeded merely from an intrinsic pruiciple of decay na- turally inherent in the commodity it!<»elf, and if the goods were brought in specie to the place of destination; if they were not, the merchant may alxmdon all, and then he shall he excused freight. But if it proceeded from the fault of the master or mariners, the merchant is entitled to a compensation, and of course he is not liable for the freight, except by way of deduction from the amount of the compensa- tion. In a total loss literally so called no i:i \\ III \ 4 SUMMARY OF THR LAWS OF I \ »fj, ; « % ■I » 1 I f// freight is due: in case of a Ions, total in its iiatiirr, with salvage, the incnhant rna^ either take the part saved, or abandon. A part only of the stipulated sum for freight may be claimed: 1. When the ship has per- formed the whole voyage, but as brought a part only of the merchant's goods in safety to the place of destination. In the case of a general ship, or of a ship chartered for freight to be paid according to the quantity of the goods, freight is due for so much as shall be delivered. Otherwise, the determination must depend upon the nature of the contract. 2. When the ship has by reason of any disaster not performed the whole voyage, but the mas- ter has delivered the goods to the merchant, at a place short of the port of destination, freight shall be paid according to the propor- tion of the voyage performed. If a freighted ship becomes accidentally disabled on its voy- age without the fault of the master, the master has his option of two things; either to refit it, if it can be done within convenient time, or to hire another ship, to carry the goods to the port of delivery. If the merchant dis- agrees to this, and will not let him do so, the master will be entitled to the whole freight of the lull voyage. Where the whole is an tOMMF.nCR AND NAVIC.ATION. 83 entire voyai^o, lis from A. with u carj;(» to IV and buck ugain to A. with another rarp) ; the ship arrive*! in safety at H. but is b>>t in lier return to A. no freight is due, tbonp;li (lie contract be at no much per month, lliit, if the outward and honwnvard vo>au;es are di-*- tinct, a |)ro|)orti(»nal)b; freight will be due for the time employed in the outward voyage. This is to be determined by the express terms of tlu; charier-party, which sliould be framed in such n manner as to express the real meaning of the contracting parties without ambiguity. The general rule in the construction oi this, as well as odier mercantile inslruments, is, thai the construction should be liberal, (tliou^li not inconsistent with their plain and obvious meaning,) agreeable to the real intention of the parties; and conformable to the usage of trade in general ; and of the particular trade to which the contract relates. In bills of hiding, the master undertakes to deliver the goods upon the payment of freight, with primage and average accustomed. Pri- mase is a small payment to the master for his care ar I trouble, which he is to receive to his own use, unless he has (>t her wise agreed with the owners. Average, denotes here, several petty charges, which arc to be borne partly r 2 'A k ' -1 *#' 4.1 84 XIJMMAIIY OF TIIK LAWS OP by (lie tiliip, uimI partly !>)' (Ik* curgo ; micli aviii|2^, bcaronu igc &i V ri- inap;r und iivcrii^o (Icpciul ^(irely upon UHttge ; tuul are ofl'Mi c<>iniuii(c(i for a nprcitic num; or u certain pui ccn(uge on \\ic freight. r' f*' • f *i ' » '^ a PART II. I.AWH OK NAVir.ATION. CHAP. F. General Rules for the Gnvrniment and Protection of the Naval Trade. ^ I. All persons employed in or about the ciistomM, are, at their adiiiisHion, to be sworn before two justices, for tlie fiiithful exe- cution of tlicir oflice, and that tliey will not take, or receive, any reward or gratuity, di- rectly or indirectly, for any things belonginpj to their office, other tlian such salaries aiul fees allowed bylaw; which oath is to be certified to the next sessions, and kept among the re- cords. Customers, collectors, or comptrollers, concealing customs duly entered and paid, shall forfeit treble value of the nicrchandi/c so customed, and shall also make fine and ransom to the king. Officers of the revenue making collusive seizures, agreeing not to seize any ships or goods, taking any bribe, or con- niving at any false entry, shall forfeit .if'iOO, and be incapable of serving his iNIajesty ; and . J I m V m % 80 KiMMxiiY or Till', i.wvs or the prrnnn onVrinof muli hribf, >\lM'Mirr rf- rcivrd or not, kIiuII forfeit £.)i)H MiiHtcrN of vcmmi'In jir«* to hiin^; to tit tlio iMiiiil phuTK, and to ri iding; him, makes the oHVuder a felon without hencflt of clerpiy. Persons opposing, or ai^saulting any such ofliccr on his duty, shall he |)unislicd by transportation for 7 years; or hard labour on the river Thames, not exceeding 3 years : and they shall not be bailed in less than £^100, and two sureties in i£IOO each. In case any ship, &c. liable to seizure or examination by law> I COMMfRCR ANn NAVIGATION, 87 ahnll not hriii^ (o, nn liriiip; rr(|iiirt'(l no to do, or on Ix'inp^ rlrmril hv any ciittrr, or otlorr vca»cl hrlon^;iii^; to the tiavr, niHtoiin, or rx- cinr, liiiviiig^ tlio proper |HMi(iaiit and riiiipi lioisttMl, and Mi^niil iiiiidt* by iirinp; u ^;tin, 1110 roiMinniidcr may «iioot into tlicin ; and if any prrre a juntiee, lie shall be admitted to bait. CommiNsioned of!i- rrri of the navy and army, may. as well ai the oflircrs of tiie customH and revenue, »e\'/.n any p;oodM, ships, &c'. nubjeet to torl'eiture, by any aet in forcc^ for any otlcnee a^ainnt the revenue. Siirh seizure ^hall be depoHited in the cuHtody of the proper ollicer oi* the eiis- tom^, at the nearest cuHtoni-house ; or of the proper ofticer ofexciite, aecording- to the nature of the oflcnee. The ccrtifieatc of the court, upon the record, that th«re was a pi'obable muse ^ seizui •, will discharge the persons who made the sri/urc from all damages and costs of suit though a verdict in given fur the claimer. f: ' '»' \.i j vi $ 2. The principal causes of forfeiture of sbips ar.'d cargoes, are the *olIowin/i: viz. 1. Goods uncustomed, or prohibited, being unshipped with intrntion to be lainied, or being dischargrd out uf u ship into another^ upon a IMAGE EVALUATION TEST TARGET (MT-3) /. ^/ ^ .^. :^ y. 1.0 I.I UIM 12.5 Ui U2 |2.2 2.0 1.25 i 1.4 1 I III 1.6 V] 0%. V /A Photographic SdeiK^es CorpordiiGii 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^:^ ^ 88 SUMMARY OF THE LAWS OF !i'i sale, are forfeited with the ships, vessels, c ar- riapjes, buats, &c, Per.soiT* coiieerned, whe- ther priiieipal offenders or aiders, or receivers, forfeit treble the value of such goods ; half io him who shall seize or sue for the same. If goods are brought to a mercliant to a port, and there part of the cargo be sold, but not put on land, they must still pay the customs. • 2. All ships or vessels belonging to any of his Majesty's subjects, and armed for resistance, (that iS) having on board more than two car- riage-guns of the calibre not exceeding four pounds; and small arms not exceeding two musquets for every ten men,) which shall be found within certain limits of the British do- minions in Europe, shall be forfeited ; toge- ther with all their guns, tackle, &c. and cargo, if any. But this shall not extend, 1. To any ship or vessel on a voyage from any part of America, or the East or West Indies, Africa, or the Mediterranean ; 2. nor to any ship, &c. in the service of the customs ; 3. nor to any vessel duly licensed by the Admiralty, on ac- count of her built ; or such arms as the licence shall specify, which licence is io be produced to the collector of any port at which she shall arrive : 4. nor to any vessel having on board any arms or ammunition which have been re- gularly entered and cleared at any custom- COMMERCE AND NAVIGATION, 89 (^ house in any of his Majesty's dominions, and are regularly stowed in the hold ; or put on board for the deicnce of such vessels by licence from the Admiralty, on account of such arms or ammunition 4. A British subject cannot, without the king's licence trade with the enemy, c^ pain of forfeiting the goods. And the neutial bottom gives, in no case, any sort of protection to a cargo otherwise liable to confiscation. A neu- tral vessel was laden with goods purchased in an enemy's country, on account of British merchants, and bound to a British port : the cargo was condemned, and the master was allowed his freight and expences. A British ship, ostensibly transferred to a Dane, was taken trading with the enemy, and condemned with her cargo (in 1799.) Every ship, &c. fitted out with a design to trade with, supply, or correspond with any pirate, and all goods put on board the same for that purpose, shall be forfeited. 5. If any goods or merchandize shall be im- ported, or exported ; or carried coastwise in any vessel not navigated according to law, viz. by a master ; and in time of peace, three fourths, at least ; and in time of war, one fourth^ at least, of the mariners ; being natu- ral born, or naturalized subjects of his Ma- A f i i'> ^) M tf^ 90 SUMMARY OF THE LAWS OF •Ml ^ E li J, .1 jcsty, at all timet; sudden deaths, and hazard, and casualty of war and seas excepted ; in case of any ship or vessel which, hy law, is re- quired to he registered as a British ship or vessel ; such ship or vessel, with all her guns, furniture, &r. ; and all the goods on hoard the same, shall he forfeited. 6. Any ship or vessel required hy law to be registered, which shall depart from the port to proceed to sea, for any purpose what- ever, without having obtained a certificate of registry, shall be subject to forfeiture, with all her guns, furniture, &c. This article shall be explained more fully in the following chap- ter. § 3. If any owner, or master of any ship, &c. or any mariner belonging to the same, shall wilfully cast away, or otherwise destroy such ship, &c.; or in any manner counsel, di- rect or procure the same to be done, and the same be accordingly done, with intent thereby, wilfully and maliciously to prejudice any un- derwriter, or any merchant that shall load goods thereon, or any owner of such ship, he shall suffer as a felon without benefit of clergy. The same punishment is inflicted on those who shall plunder or destroy goods, of ships in distress, wrecked, or stranded^ or cast on \i, COMMKRCE ANT) NAVIGATION. 91 Kliore; or shall beat or woiitul persons endea- TOiirini^ to save their lives frorii such ships; or shall put out any false lights, with intent to bring any vessel into danger; or who shall make or assist in making any hole in any part of a ship in distress, steal any pump from tlie same, or wilfully do any thing tending to the immediate destruction of such ship or vessel: — and also on those who shall steal any goods of the value of 40s. in any ship, barge, or other vessel, or craft, upon any navigable river, or in any port of entry and discharge, or any creek belonging thereto, from or oft' any wharf or key adjacent to such river or port. If there shall be cast out of any vessel being ■within any haven, road, channel, or navigable river, any ballast or rubbish, but only on the land "icherc the tide never comes, the master or person acting as such shall be adjudged the offender, and forfeit not exceeding £o, nor less than 50s. half to the person who shall sue. Where any vessel has been sunk, stranded, or run ashore in any harbour, channel, or na- vigable river, or been brought in and permitted to remain there in a shattered condition, and there is no person to take care of the same; or else the owner or master begins to take down or carry away any of the rigging or tackle; any one justice shall on information thereof, sum- H' 1 ' X J ^■i 93 5lJMMAaY OF THE LAWS OF HV I! ) ' •> mnn tlic owner or person havinp; the command of her, cr isfltie his warrant np;uinKt him; and, if such person dors not within five da^s j^ive 8atiHfactor)r security to clear the harhour of •uch vessel or wreck und every pait thereof, and to pay all necessary cha'^^cs, then the jus- lice, (having immediately on receiving the in- formation, and on convictitm^ issued his war- rant for seizing and removing such vessel, and also the rigging and tackle thereof;) shall cause the hulk and tackle to he sold, and with the produce, shall pay the charges of clearing the place where the vessel shall lie, &c. Where a ship or its cargo is injured by ano- ther ship, by mere misfortune and without fault in the perjions belonging to either ship, the owners of the ship or cargo injured must bear their own loss. Such a misfortune is consi- dered as a peril of the sea: otherwise, an ac- tion will lie against the master of either ship to ^hom negligence or misconduct is imputable^ for the loss he has occasioned. If a vessel is injured by striking against the anchor of ano- ther, which anchor lay under water, and with- out a buoy, the owners thereof are responsible for the injury : for every anchor ought to have a buoy fastened to it. ■I COMMEnCR AND NAVIC \TIOM. 93 CHAP 11. Of Shi/tf' Rcgiiten. ^ 1. All ships niul vessels liaving a deck or being of tlic burthen of fifteen ton«, or up- wards, belonging to any of his Majesty's sub- jects in any part of his dominions, must be re- gistered, and furnished with a certificate of such registry from the collector and comptrol- ler of the customs of the port to which she be- longs, if in Great Britain, Ireland, or the Isle of Man; or from the governor, commander in chief, or principal officers of the customs, if in Guernsey, Jersey, or the plantations. This is not to extend to render a register necessary for any vessel not exceeding thirty tons burthen, and not having a whole or fixed deck, and being employed solely in the Newfoundland fishery, or on the banks or shores of Quebec, Nova Scotia, or New Brunswick, adjacent to the gulph of St. Lawrence, and to the north of cape Canso, or in the islands within the same, or in trading coastwise within the said limits. Vessels built in the plantations on account of owners residing in his Majesty's European dominions, and which ought to be register- ed, are to be registered there, by the gover- -( r If -9W KP sa SUMMARY or TIIR LAWS OP nor and other!* duly ciutliori/cd, the hiishand or priiic'ipui agents of such vessels taking the oaths re(|uircd: such certificates shall he of full force until such time as the vessels shall arrive at some port in his Majesty's European domi- nions^ "where they must he registered dc novo, upon the oaths of the respective ownersj as in the case of ships huili at home. .1' t § 2. Previous to registry being made, 1. Oath must be made and subscribed by tliu owners, of the name and description of the yessel, the name of the master, and of every part-owner, with other particulars tending to prove them to be subjects of his Majesty, and that no foreigner, directly or indirectly, has any interest in the ship. 2. A certificate under the hand of the builder must be produced, of the denomination, time and place of building, tonnage, &c. of such ship. 3. A survey and admeasurement must be made by one or more persons appointed by those authorized to make registry, according to the modes prescribed by the statutes: And lastly, a bond must be given, in a penalty varying in proportion to the bur- tiien of the ship, as a security that the certifi- cate shall be used solely for the service of the ship for which it is granted ; and, in case of the loss, capture or destruction of the ship, or H- ic of or COMMRRCR A?%urriiiit ohtttiiird by ihe iiiiiioritv, \%-lio, nt all rvcntM, (Mi^li(ivx|)r(*<«\\o f'lri^lit tlii* nliip, in order not (o he liablr to coritiibutu to n lost. Thin power oi' tlu> niajorit) mar hv. cxorcincd in like niiiuncr hy the one part oiil)', in cuic of eqiiulity in tlir piirtncrHhip. \% to the rrpuirM of a iihip, und other nerci- karieit tor the eniplovnieut of it, one part-owner may, in g;eneriil, hv ordering tlieno thiof^i, ren- Hrr hit conipanions liable to he aued for iUfi priee of them. Hut lie rannot charge tiic others with any part of ihe preiniinn, by order- ing an inHuranee of the ship without authority from the rest, uuleiis they aftcrwardn consent to the insurance. And if the pernon who ^ivei credit for the repairs, &c , of the Hhip, doen not at the time know that there are other part- owners, he may sue him alone, from whom ht; received the orders. The interests of part-owners in a ship, and in the profits and loss oC an adventure undertaken by their mutual consent, is not aifected by the bankruptcy of one of them taking place after the commencement of the voyage, although he has not paid his full share of the out-fit. In such a case, the other part-owners who, in that character, paid the expcnce of the uut-fit, o 2 ■•) I r ;! ». ' N 'I 100 SUMMARY OF THE LAWS OF \l or made themselves responsible for if, haxe a ri^ht to deduct liiii share of the out-fit, from the portion of the profits to be paid to hii assignees. As to the interest of purt-owiiers with regard to strangers, the several part-owners of a ship make, in law, but otic owner; und in case of any injury done to their ship by the wrong or negligence of a stranger, they ought regularly to Join in one action at law for the recovery of damages. In the case of the death of any part-owner after an injury received, the right of action survives in general to the surviving part-owners, for the benefit of his personal representatives according to the value of his share. In the case of an action for the freight of goods conveyed in a general ship, all the part-owners ought to Join. On the other hand, if an action is to be brought against the part- owners, upon any contract relating to the ship, it ought regularly to be brought against all jointly. As by their appointment of the master to a place of trust and confidence, the owner* hold him forth to the public as a person worthy of trust and confidence; and as he appears to all the world as their confidential servant or agent, in matters relating to the usual employment of the ship. a!ii well as in matters relating to the i u \ COMMKiU 5 AM) NAVI(;ATI0N. 101 means of employing; ilie ilup, it is a rule of law that the owners are boihid to the performance of every lawful contract made by him relative to the usual employment of the ship; and are liable for all supplier, reasonably fit and proper for the occaHi:>n, furnii»bed by the master's order, as well as for any money advanced to him for the purchase of Hiem which at the time was actually wanting for that purpose. They are liable for expences incurred by the master for the use of the ship; for provisions bought by him, even if he had received money to pay for them ; for repairs done to the ship, or money borrowed for the service of the ship. The master's authority is to provide w(rc^«srtms; but if a person trusts him for a thing not neces- sary, he trusts him for that which it is not within the scope of his authority to provide ; and consequently has no right to call upon h s principal for payment. The owners arc also liable for all losses and damages that may happen to the goods delivered to the master to be conveyed in their ship, through the default of the master or mariners, or by any accident whatsoever^ those mentioned in the bills of lading excepted. And if no bill of lading with such exceptions^ be signed^ ihey are bound as fully as other carriers, according to the rules laid down in the 3rd Chapter of the first Part w H I ' r !■ ic h K I If I 102 bUMMARY OF THE LAWS OF ,"f' \ of this Summary, §. 2. art 6. Tliey urr liable for any Iosh or damage liappeniiig tlironp^li the negligence, wilfulness or ignorance of the master or mariners; for goodh robbed, let the force be ever so resistible. But they are not liable for goods not entered, nor for any loss or damage to goods put on board, by means of any fire happening to or on board of their ship; nor for any loss by robbery or embezzlement of any gold, f'lver, watches, jewels, or precious stones put on board their ship, unless they were particularly informed by the shipper, at the time of shipping, of the true nature and value of such goods. But if they are duly informed of these circumstances, they are liable for such goods, even where the ship was let to another person for a voyage, at a certain sum, if such owners had covenanted for the condition of the ship, and the behaviour of the master. The other has, in this case, " the use of the ship, but no ownership." And in case of any loss or damage by embezzlement, secreting or making away by the master or mariners, of any gold^ silver, or any goods or merchandize put on board ; or for any act, matter or thing, damage or forfeitures done, occasioned, or incurred by the master or mariners, without the privity of the owners, the owners shall not be liable fur- ther than the value of the ship with all her ap- } If, COMMF.nCR AND NAVIOATlON. 10.3 purlcnanccs, and the full aniouni of the frci^lit due for that voyage. It is to he observed that in favour of rommcrce, tlic law will not compel the merchant to seek after the owners and sue them, although it gives him the power to do so; but leaves him a two-fold remedy against the owners or against the master. §. 2. As to the duties of masters of vessels on leaviufr port, they must procure and keep on board all the papers and documents required for the manifestation and protection of tlic ship and cargo by the law of the countries from and to which the ship is bound, by the laws of na- tions in general^ and treaties between particular states. They must be careful not to take on board any contraband goods : if they suffer any wool, woolfells, mortlings, shortlings, yarn made of wool, wool-flocks, fuller's earth, ful- ling clay, or tobacco pipe clay, to be put on board their ship, to be carried to parts beyond the seas, they are, besides other penalties and forfeitures, liable to three months' imprison- ment for the first offence, and six for the second: and this extends also to the exportation of rams, sheep, or lambs alive, except wether-sheep for the use of the ship only, by licence of the port- officer of the customs. Tallow, tools or uten- sils, or machines^ &c. used in the cotton, linen. I J 1 \ i \ « If I ail :y,„, 104 SUMMARY OF THE LAWS OF :^^ %'\\k or woollen nianiifacturr!), cannot be ex- ported under severe penalties : nor can tliey admit on boards in a voyage to partH be^'ond the seas, more than one person, whether adult or child, for every two tons of the vacant part of the ship, including the crew, under the penalty of JSbO for every person exceeding such proportion. If the ship is bound to North- America, she must be stored with at least twelve weeks' provisions, and good water, sufficient to afibrd an allowance per day, dur- ing the voyage, of not less than half a pound of meat; one pound and a half of bread, biscuit, or oatmeal ; half a pint of molasses, and one gallon of water to each person on board, whe- ther adult or child. But these regulations do not extend to passengers going to, or coming from Newfoundland, Labrador or the Banks, to be employed in the trade and fishery of those places, or who have been so employed. No goods may be laden on board, outwards, to any place whatever, without entering at the custom-house the name of the ship and other particulars; nor, if for exportation to parts beyond the seas, until a cocquet be delivered to the comptrolling searchers of the customs; and before he sails, the master must also pro- duce to the custom-house an account under his baud, of the names of every merchant who has COMMERCE AND NAVIGATION. 105 put pfoodn on board, with the markfl, numbers, &c. of all such goods. Having obtained the necessary clearances, and permission to sail, from the custom-house, he must commence his voyuge without delay, as soon as the wca ther is favourable, but on no account during tempestuous weather, and carefully comply with all waranties, such as in time of war to sailing with convoy, obtaining sailing instruc- tions. Sailing without convoy, or wilfully separating from it without order or leave from the commander of such convoy, makes the mas- ter liable to a penalty of from j^50 to jf 1500. Nor can any ship be cleared outwards from any part of the United Kingdom, to foreign parts, before the master has given bond in the penalty of the value of his ship or vessel, to comply with the directions of the Act ; nor until it shall appear that the ship is provided with the necessary flags, vanes, &c. But no British ship or vessel not belonging to the Navy, Reve- nue, Customs or Excise, shall carry or hoist any such pendant as belongs only to ships or vessels in the said service, on pain of the mas- ter forfeiting 5^500. Having commenced the voyage, the master must proceed to the place of destination with- out delay or deviation. If he finds himself in danger of being boarded by an fuemy^ when if 1 ^* ' '{f \ t \ ? \ i (1 f» \ \ ¥ i\ . \ . n 1 1 -1 ' n \ i y 106 Sl/MM\IIY OP TIIR LAWS OF I! under convov, lie Hliall miikc sipinU to the rest of the fleet, by firing of ji^iiiih or otlier\vi§e : and if boarded, he shall dcHtroy all instructions re- lating to the convoy, under the penalty of .^2(K). If the Hhip be driven into a port out of the course of the voyage by tempest, or the master sail thither to avoid encmieH or pirates, or for a supply of water or provisions, when war- ranted to do so by common and established usage, he muot wait no longer than necessity .requires, but sail again without delay ; and for that purpose, supply his ship with the re- 'quisitc necessaries or repairs, as expeditiously as he can. In cases where stormy weather ren- ders it necessary for the preservation of the ship, to make the sacrifice, when she is in dan- ger of perishing from the violent agitation of the wind, or from the quantity of water that may have forced a way into it, or is on a rock or a shallow upon which she may have been driven ; or when a pirate or enemy is ready to overtake her, the master may, upon as much deliberation and consultation with his officers, as the occasion will admit of, throw overboard us much of the cargo, as he shall see to be necessary for the common good and safety. And the captain, as soon as possible after his arrival at any port, must make his protests^ draw up an account of the jettison^ and verify COMMERCE AND NAVIGATION. lor est the snme by thr oath of hiinsolfaiKl of some of the rrcw. If by reusoii of the daiii:i|t;c done to the sliip in the course of tlie voyage, or through want of ncccHsary muteriaU, Hhc cannot be re- paired atallj or not without great loss of time, the master is at liberty to procure another lihip to transport the cargo to tlie place of destina- tion. But if his own ship can be repaired, he is not bound to send the cargo by another, but may detain it till the repairs are made, and eyeu hypothecate it for the expense of ihem ; but if of a perishable nature, he ought either to tranship or sell ^i, as will be most beneficial to the merchant. And in any case of extremity, (but not for his own debt,) he may pawn hii ship, or lading, or sell as much of his cargo as will answer his occasions. But he cannot, without a special procuration from the owners, sell the ship, nor the ship's cordage ; nor the ship's provisions, except with the consent of his officers, to ships at sea in distress, if he hai enough left for his own voyage. If on the high seas, the ship be in imminent danger of sinking, and another ship apparently of suffi- cient ability be passing by, he may remove the cargo into such ship ; nor shall he be an- swerable though such ship perish with the cargo, and his own happen to outlive the storm. ^' ' a ) \ t."' " er*,^ 1 I 1. 108 ^irMMARY OF TUP. T.AWS OF ^ S. \n in Uir (liitirKofthr mnntrr, on romin|3f near or into port, hr> miint produce \un manifcNf, and delivrr one copy thereof when within four lea^iieN of the coast, and another within the limith f the portii, on demand, to the officeri of the cnstomn. If ho hreakit hulk hcfore ar- rival at the proper place of discharge, tind leave given by the proper oflicer of the customs to unhide, he shall forfeit j£^200, except in cane of unavoidahle necessity, of which he must |rive notice, and make proof upon oath at the first port whore he Hhall arrive. And he is lia- ble to the like forfeiture, if any marks or seals made by the custom-house ofiicers on certain packages, be altered, defaced or broken by him, or with his privity or consent. He must also bring to at the usual places, and receive and land the proper officers of the revenue, under the penalty of ^100, except in cases of unavoidable necessity. And when the ship is arrived at the place of her destination, the masler is first to see that the ship be well moored and anchored, taking care not to fasten to the King's moorings, nor so moor as to be liable to injure the King's ships. Within twenty-four hours after his arrival, he must, under the penalty of .s^lOO, and before break- ing bulk, report, and answer upon oath such lawful questions as shall be ministered by the GOMMKRCB AND NAVIGATION. 109 ofncor of (lie niHtomi, niwl make a just and true oiitry upon outli, of tlio burden, c(»ntcnts, and ladinfi^ of the Nliip, &c. und whoever inakei the report, whether inanter or mate, in for that purpose considered a^ master and liable to tho Maine penalties, for not making a Just report. And the words, to the heat of his knowledge, means that knowledge which from hissituation« and undertaking to swear to the truth of if, it might reasonably be expected he onfi,ht to liave. He must, under the like penalty, even in bal- last, if called upon by the proper oflicer, make report, and answer questions as aforesaid. And at) the time of reporting, he must also deliver his manifest. If either the report or the mani- fest, shall not agree with the cargo, the master •hall forfeit j^a^OO, except in some cases where there i« no fraud nor collusion. And no ship shell be permitted to break bulk, or make entry in any port of his Majesty's dominions, until all the letters and packets (except letters of masters and owners of ships, or of any part of the cargo, and delivered to the master for carriage without reward; ) shall be delivered to the proper post-otHce ; on pain of masters and mariners refusing or neglecting to deliver such letters, forfeiting £2,0 for every such neglect. If part of the cargo only is to be landed at the port, this shall be certified on the back '■) i1 11 si* 110 9UMMAHY OP TUB f.AWlf OF )■' of (lie iiiaiiir(>Kt by the collector and comp- trollrr. Gnodii brought from beyond the urnii, inuit be landed iit lawful liours, viz. between iiin- ri'tinjB^ and aun-iettinp^ from (he tut of March to (he 3()ih of September, and between seven in the niornin}^ and four in the afternoon at other times; and upon the lawful places, on pain of forfeiture of such ^oods, or their value, and j£[Qi) by the muster; and in the presence of the proper oflieer, except precious atones, jewels, bullion, and fresh fiHh BritiMli tukcn^ imported in British-built ships, &c. Having complied with the foregoing regula- tions, the muster must without delay, or at the appointed time fixed by the charter-party, deliver the cargo to the merchant or his con- signees, upon production of the bills of lading, and payment of the freight and other charges due in respect of it, viz. in ordinary cases, pri- mage and the usual petty average. And in cuse of any loss during the voyage, he must also, having regularly made his protests, adjust the average, if not settled before, and see it paid before the cargo is lauded. In the case of a general ship, the master take* security from the merchants before he delivers the goods, for payment of their shares of this contribution, when the average ahull be adjusted. COM.MF.ncK AND N AVICATIOV. Ill ^ 4. Ai to (lie iiinitrr'ii rrined^ for liii wag;(>«» lie niii only niir (he owiim pc*r»oiitilly in a C!our( of Coiiiiiioii Law: bii( n<« Ik* p;riirrnlly rcrrivcM (lu* t'n'ifi;li( und ouriuiif;^«t of (lie *\vp, and iiiiiy pay liiiiisoif oii( of (lie inoiiry in hit hand, he Iuih no( ut'(cii oicaHion for lurh a renuMly. I( in iio( lax^fiil (o arrcHt or impriion the master, pilot, or marinorn of a ship in an aciioii of debt, when they arc ready to lail, except it he for debts eontracted for the voy- age. But the ereditor may Hci/.c and !«ell any thiiip^ he (iiuIm in the nhip, belonging to hit debtor. ,1 CIIAP. IV. Of Mattcity Mariner*^ and ApprrntUct. § 1. No Hcainan or mariner is to be carried to sea, unless there is an agreement in writing, and signed by the parties, and which in case of dispute, is to be produced by the master, or owner of the ship ; and no mariner can recover any wages or reward not specitied in the articles : and these regulations respecting leamen, extend to every otticer of the ship, except the master ; nor do they render a verbal agreement for wages absolutely void, but im- pose a penalty on the master if there is no ,S ; 112 inMMARY or THF. I.AWft Of nvrtttfn tfl;rrrmfnt Miutf*r* kiio\%iiif(ljr riitcr- ttining^ or rntrriiiK; on Ixurd any •raitiait nho ha« (IrarrtiMl rroiti llir royal iiuvv, CorlViti j£'A) if of privatcora, or tnitliof^ vc^M'ta ; and jCf'iO, if of any Haliinf[^ >hi|» or toat. And tiiUHtoni of Hritiitli nirrcliant uliipa, kno\«inii;ly liirin^; liny inurinrr nlio Iiuk dc^tcrtcd from any ■ ucli otlitrr ahip or vcwhcIh, forft'i(« j^KM), one third to the proNmitor, to hv levied iiy diHtrrif, or v\nv. throe montha' iinpriaoiinieut. itiit this ahull not extend to caiea where the niiirinrr prodiieea u certificate of di»ehur|i;e from hii luat maater, a(t?rHted hy one or more witneanra. Every maater mtiat keep a viustir-rotl of hit rrrw, a duplicate of which he ia to f^ive, he* fore Ilia departure, to the collector of the hoapital money at the port to which he beloii^a, and unothcr ut hia return, under the penalty of £'20. V ^. ^2. Aa to the maater'H authority for p;o- \erninent of hia crew, hy the common law, it ia their duty to obey hia ctuiimtinda in all law- ful muttera relating to the nuvi^atioii of the •hip, and the preservation of g^ood order. In case of diaobedience or disorderly conduct, he may lawfully correct them in a aeasonablc manner, hia authority, in this respect, being analogous to that of a parent over his child, or I COMMKRCI AMD NAVIcUTION. ill ul » mmttT ovfr hU opprrnlm*. «r «clioUr Rut lif oiifi;lit to he vrry iriirffiil iii tlir «'X«»r» ivt of It; niul ill VAwn rrqiiirinu; \\%% iiiiincdialii iiiterpcxiitiiiu, lie alioiild tiik« tlio tttlviip of thoiV iit'xt hflow liiiii ill iiiitlioritv ' for ht* inity on hi« rotiirii hv cuWeu to mii lucoiiiit, for the UHf lit* liti* iiiiidc of thnt pomT In cuici of niiirdfr or uny fi^rrat < rinic, iu> oii|j;ht to •mirtr the porvoii of the iriiniiinl, and ciitiac him to \h' bfiui^ht before the proper tnbiiiiul of hi!4 eoiiiitry .fimticeN of (be peiiee niuy receive iiifoniiatioiDi of ffbiiiiew eoniiiiiUed upon the !d a^ii^uinst pirateit or eiirmiei, bv figbt, and broii<:!;ht to her designed port, a certain sum raised upon tbf; owners of th(> ship and ^oods, ho defended, is to be dis- tributed amon|u^ the muster, oiTicers, and ma- riners of sucii ship, havini^ special regard to the widows and children of such as have been slain, and such as have been wounded. Whea any person employed on board any ship or ves« •I t| 4 /^ ••MMti nt . T^-xr^ JmHSSm 114 SUMMARY OP THE LAWS OP 9fl, ihall, in doin^ liin duty on shore or on board, be hurt oi maimed, he is to be properly relieved, until sufticicntly recovered to be sent to the place to which the ship belongs, ^. 3. Astc the discharging seamen, neglect ofdrity, habitual drunkenness, disobedience of orders, will justify a master in discharging a seaman during the voyage. But on discharge ing a seaman, the master must, under the penalty of ^20, within three days next after application made to him by the raar'ner, give him a certificate of discharge attested by one or more witnesses. 4nd if any maste shall force any man on shore, being abroad, or will- fully leave him in his Majesty's plantations, or elsewhere, or refuse to bring home again all such of the men he carried out with him, as are in a condition to return, when he shall be ready to proceed on his homeward-bound voy- age, he shall on conviction suffer three months' imprisonment. §. 4. The payment of wages is generally dependent upon the payment of freight : and if the ship has earne<^ its freight, the seamen who have served on board the ship, have in like manner earned their wages. And if a 8hi^> sails to several places, wages are payable to u> .■: li COMMEBCB AND NAVIGATION. 115 the time of tlie delivery of the lait car^o. If by the terms of charier-party, freight is not to be paid for the outward-bound cargo, unless the ship brings back her homeward-bound cargo in safety, such a special agreement Hhall not affect the seamen, unless they also make a similar agreement. If after the hiring of sea- men, the owners of the ship give up the in- tended voyage, they shall pay the seamen for the time during which they have been employed on board ; and also make good any special da- mage which they may sustain in breaking off the contract. The same rule of a proportion of the wages, holds in case of a prohibition of trade to the place to which the ship is bound, before the voyage begins. A seaman is entitled to his whole wages, even when unable to do his duty, if his inability proceeds from any hurt received in the performance of his duty, or from natural sickness happening to him in the course of the voyage. And if a master dtHcharges a seaman during a voyage, the seaman shall have his full wages up to the prospero'is determination of the voyage, de- ducting, if the case requires it, such sum as he niav in the mean time have earned in another vessel. In the ordinary case of an embargo, a seaman hired by the month, and remaining with the vessel, has a right to his wages during H 2 H "i 'I -*-;;c:.=** the embargo ; if the ship performs her vo}agf, and has earned Iier freiglit, and those engaged for tlie voyage, shall he paid ueeording to their agreement. If a siiip is seized for deht, or otlierwitic forfeited withont any fault of the mariners, they shall receive their wages. If by any disaster Inppening in the course of the voyage, sucli as the loss or capture of the ship, the owners lose their freight, the seamen also lose their wages. And if a ship sail to one place in order to take in a cargo there, to be conveyed to another place, and having re- ceived the cargo, is taken before its arrival at the port of delivery, nothing is due for navi- gating the ship io the first place, because no freight is thereby gained. Wages may not only be lost, but also foi'~ fiited. Wages are the father of damage; and as the mastjr is answerable for any loss or da- mage w'nich may happen to the cargo froai his own negligence or embezzlement of his mariners, so he may reimburse himself out of the wages of those mariners, by whose fault it happened. He may also, in case of illegal importation of candles, soap or starch, by his mariners, with- out his privity, stop their wages until the in- formation is tried, and keep in his hands so much of the wages of the mariners guilty of, or privy to the ofience, as shall answer to the penalty inflicted on himself. So in the case of U,t> ■n COMMimCK AND NAVIGATIOX. 117 tlic illegal importiition, by thr innfe or srimrn, of !«pirits, 8e all their wages due to them, together with such goods as they may have in the ship, and be kept to hard labour not exceeding six months. Wages are also entirely forfeited by refusing or neglecting to proceed on the voyage after articles signed, or by desertion from the ship at any time bcfor» the completion of the voy.ige and delivery of the cargo, or before the expiration of their time of service. A seaman who absents him- self from the ship without leave, forfeits to the use of Greenwich-hospital two days' pay for each day's absence: and if he leaves the ship before he shall have a dischai^'c in writing from the master, he forfeits one month's pay to the said hospital. But a seaman who enters, or is impressed into the royal navy, is entitled to a proportion of his wages up to the time of such entering or impressing, if the ship arrives safe : nor if he belonged to a privateer, shall he lose his share of a prize taken whije he was iu the privateer. . \ S '. (i 'l! i f 118 SUMMARY OP THE LAWS Of }\ No master or owner shall pay or cause to be advanced to any seaman any money or cflccttt on account of wages, exceeding- one half of the wages then due, until such ship shall re- turn to that part of his Majesty's dominions, to which they belong, and from whence they were fitted out, on pain of forfeiting double t\\c mo- ney so advanced, to any person who shall first inform of the ^ame. The rest must, if de- manded, be paid within thirty days after the ship has been entered at the custom-house, ex- cept there is a covenant to the contrary, or at the time of the seamen shall be discharged, "which ever shall first happen, under the penalty of 20 shillings over and above the wages to the seaman, whose wages shall remain unpaid. Mates and mariners may sue in the admiralty for their wages jointly and the ship itself is answerable. All sums of money which may be due to a mariner who died on board during the voyage, must, within three months after the ship's arri- val in Great Britain, be paid to the receiver of the hospital-money, to the use of the heirs, executors, or administrators of the said mari- ner; otherwise, the master shall forfeit £bOy and double the amount of il'.e wages, &c. so due. 'i commbucb and navigation. 119 § 5. A duty of six-pcncc per month for tlio support of the Greeuwic-h-hoHpituI, is to be puid by every master, Hcaniun and mariner, and other person employed in any merchant ship, or other private sliip or vessel belonging to any of his Majesty's subjects, except apprentices under eighteen years of age : the master is to deduct it out of their wages, shares or profits, and to pay the same to the oftlcer appointed for that purpose, under the penalty of j^20; and, this is to be done only at the port to which the ves- sel belongs, and before she is cleared inwards. The master is also to deduct out of the seamen's wages the penalties belonging to Greenwich- hospital, to enter them in a book, and to pay them to the receiver of the hospital-money, within three months, on pain of forfeiting treble the amount. \r •I § 6. Apprentices bound out, or assigned over to the sea-service, arc till the age of eighteen years, exempt from the payment cf the hospi- tal-duty, and for the space of three years from the date of their indentares, from serving in his Majesty's navy; also, apprentices who have voluntarily bound themselves to the sea-service, not having before used the sea, are exempted from being impressed for thre^ years, but, not if they are eighteen years of age, and have 4^ T^T^m^- I i ^ r f. 120 SUMMARY OF THE LAWS OF li been in any sna-ierviro, before tboy bound themselves apprentices. Musters on clearing out of any port, must pivc an account in wri- ting to the collector, of the number and names of the apprentices they have on board, and the same is to inserted in the cocquet, without fee, and a register kept in every port. Two justices may determine diflcrences between masters and apprentices. $ 7. Britisb governors, ministers and consuls in foreign parts, or where none such arc resi- dent, two or more British merchants, are re- quired to provide for seafaring men and boys, subjects of Great Britain, who by shipwreck, capture, or other unavoidable accident, shall be in foreign parts, and subsist them at six- pence fer day each, and to send them home as soon as conveniently may be, in the first of his Majesty's ships that arrives at or near that place: or in case no such ship shall be found, then to put them on board the first merchant ship bound for Great Britain, of which the master is bound to receive not exceeding ./V^/zr persons for every hundred ton? of his ship's burthen, and be shall be allowed six-pence a day for each of them, by the commissioners of the Navy. .aw^tS -r^B»— COMMBnCP. AND N AVIC AXIOM. 121 i CHAP. V. General Regulations reliitinif to (lit Plantation 'Vi ade. ^ 1. All the laws which havo hitherto heni the suhjcct of the second Part of this Siini- inarv are applicable to the colonies and planta- tions, in all cases where there is no exception expressly made by art of parliament. The plantation trade is subject to the same rules with respect to customs, visitations, searches, and forfeitures, to the entering, lading-, and dis- charging of cargoes as they are in England • the olFicers of the customs have the same pow- ers for visiting and searching of ships, for seiz- ing, ".ecuring, or bringing on shore any goiuls prohibited to be imported into, or exported out of, any of the plantations, or for which any duties are payable ; and also to enter houses or warehouses, to search for and seize any such goods; they have the same privileges and pro- tection, and are liable to the s;ime penalties and forfeitures, as the officers of the customs in England. The regulations respecting the hospital and forfeitures mentioned in the prece- ding Chapter extend to the British colonies and plantations in America; and the same is to be 1 k \n SUMMARY OF TIIK LAWS Of paid, under the like peimltien to tlic ufliccr dul/ authorized to receive the lauic. 4 2. No alien, or person not born within the King'* ullegiunce, or naiturulixed, or niiide a free deni/en, may net as a merchant or factor in any of the British pluntiitionN: hut, alieni re»idin^ in any place whicii shall be in his Ma- jesty's po8HeHHion by surrender or otherwise, and havin|>^ taken the oath of fidelity or allegiance to his Majesty, may act as merchnnts or factors in such placcfl, so long ns the same shall remain under the protection of the British Crown. Also foreigners resident in England or Wales, may freely trade into and from Greenland, Newfoundland, and any other of the British plantations, in British vessels. No goods or merchandizes whatever may be imported into, or exported out of any of the British colonies or plantations, in any ship or bottom but what shall be British-built, owned and navigated according to law : and the mas- ter shall, before loading or unloading at the plantations, make oath before the governor, or collector of the plantation where he arrives, of the name and burthen of the ship, &c. If the certificate of registry happens to be lost or mis- laid while in the plantations, the governor, and collector of the customs may, on the master mak- -.Jlic:»i^._ 2r>»i.<-. COMMRRCP. AND NAVIGATION, ll*? in^ oath uiid Kiviii)]; Nrnirity, ^i\e liiiii a certi- ficate, b)' virtue of vviiicli «tiicli iiliip nIiqII have liberty to trade for that voyage only, after >vbicb a new rep;il, lliut hII )i^oo(1n pri)liibit('(l io he vx\}orU't\ to any (orci^ii p.irt Nliall, in rune :on(l<«, 1)(> hy tlir said Nliip brought to hhuw part of tliu United Kinp;(loin, Ihv. dttnf!;cr of the nva ex- cepted. Till? Hainc lioiid in to he ^iven, for nil nliipi coming from any otlirr place to the plaii- tationn. to the governor, before any nueh fj^oodii arc loaded (»n hoard such Khipn; and if they roinc from the United Kingdom, a certifieate must be produced of huiIi bond having;; been ^iven. All diich bondn (except bond;) given for nhipn which lade snf2,ars) are to be with condition that within eighteen montbn from the date, the danger of the iteas excepted, a cer- tificate shall be produced from the collector and comptroller of the port where the goodi are delivered, that tluy have been there duly landed and discharged ; otherwine such bonds, or copies thereof attested by the governor or commander in chief, to whom such bonds were given, shall be in ftirce and allowed of in any court of the United Kingdom. W here there is reason to suspect that the certificate of bond having been given at home, or of plantation- goods having been discharged according to the terms of such bonds is false ; then in the first case, the governor or oilicers of the cus- toms may require a new bund, and iu the second H I? If 130 •VMMARY OP Till LAWI OP cair, the ftrtirif}' i^iTen in vho maJo tlio no'i/Airv. All ships and goods leizcd and condemned in the plantations, in pursuance ofany law relating to the plantation- trade, shall be sold by puulic auction, by the collector and comptroller, and shall be applied, rosocutor. If the produce is not sufficient to defray the charges of condemnatioii and sale, or if a verdict be given for the claiment, the cliarges lupy be paid out ofany branch of the customs arising in any British American colony. No claim shall be admitted to any ship, or goods heized and prosecuted there, unless suHicient security be given. Thu judge's certificate that there was a probable cause of seizure, will ii: hII cases, discharge the seizcrs from all actions, costs and damages. h u •ff i mm COMMERCE AND NAVIGATION. 139 ) CHAP. VI. 0/ tk^ Lawi rtlating to the Nettfoundland Tradg and Fiiherj/, §1. Alibis Majesty's subjects, residing in any of his dominions, are entitled to use and enjoy the free trade and fishery, to and at Newfoundland, and the seas and islands adja- cent, and to do every thing which .iiay be use- ful jr advantageous to tlieir fishing trade, without any disturbance or hindrance from any person whatever. But the privilege of landing and drying fish on the shores of New- foundland, is limited to such of his !Vfajesty's subjects as come from his Europtan dominions only. No alien not residing in England, may bait or fish there. The people of the American States mav fish on the banks of Newfoundland^, and on such parts of the coast as British sea- men shall use, but they may lot dri/ or ctire the same on that Island. They may also fish in the gulph of Saini Lawren e, on the coasts, bays and creeks of all other of his Majesty's dominions : they may dry and cure fish in any of the unsettleu bays, harbours and creeks of Nova Scotia, Magdalen Islands, and Labra- i i f 130 SUMMARY OP THE LAWS OF dor, 80 long as ihc same shall remain unset* tied. Persons at Newfoundland, trading with foreigners, shall forfeit treble the value of the articles so sold, or bartered, or shall be treated as deserters. The customs are under the direc- tion of the commissioners of the customs. ^ 2. Provisions and nil necessaries for the fishery, being the product and manufacture of the British Euvopean dominions, may be im- ported into Newfoundland from any part there- of. Also craft and clothing, being of that description, may be shipped from V "•* y or Jersey to Newfoundland, for the use of the fishery; the master producing a certificate from the principal ofllcers of the customs in the port where he shall have fitted out, to that efi'ect. Salt from any part of Europe, also wines from the Madeiras, and Azores^ or western Islands, being the growth of the said islands respectively, may be imported in British vessels navigated according to law. Rum or other spirits, imported from any British colon^ or plantation on the continent of America, pav> one shilling duty per gallon. No women may be allowed to laud in any part of the island, unless security be given for their good behavi- our, and that they shall not become chargeable. And every master bringing passengers to be COMMRRCR AND NAVIGATION. 151 employed in the fishery, is to give each of them, before he suffers them to land, a certi- ficate, printed blanks of wiiich are furnished gratis at the custom-house. British ships found standing into> or coming out from Saint Pierre, or Miguelon, or hovering, or at an^ chor within two leagues of the coast thereof^ or discovered to have shipped any goods there, or to have been there for that purpose, are forfeited : and commanders of men of war nay stop and detain vessels suspected to be going to or coming from the said islands. Vessels fitted and cleared out as ^«^tng ships according to the laws made and in force, and being actually employed in the fishery, or boats or other craft employed in carrying on coast- wise, to be landed and put on board any ships, fish^ oil, salt provisions, or other necessaries for the use of the fishery, are not liable to any restraint as to days or hours of working, nor to make any entry, except a report to be made by the master on his first arrival there, and also at his clearing out from thence. But if the ship has on board at her last clearing out, any goods, except fish, or oil made of fish, she shall be liable to the same securities, restric- tions, and regulations in all respects as if this act had not been made. § 3. No master may carry any fishermen, H 2 :i ,;;crs, -Nvitliout permission from the governor. British seamen, or fishermen employed it*, the fishery, who shall desert or agree to desert from New- foundland to go to a foreign state, shall be committed, and on conviction imprisoned, not **\cccding three months, or else sent back to the >untry to which they belong, if they came from his Majesty's European dominions: and, if not, they shall be imprisoned not cxceedinjHf twelve months. t i h ■■ ' . § 4. Persons who since 1G85 have taken or detained any stage, cook room, beech or other places for taking bait or fishing, or for the drying, curing, or husbanding of fish, are to relinquish the same to the public use of the fishing ships arriving there: and no fisherman or inhabitant, or any other person, may take up or possess any such stages, &c. before the arrival of the fishing ships from British Europe, nor until they are provided with stages, &c. By- boat keepers are not to meddle with any house, stage, &c. belonging to fishing ships. Every master of a by-boat shall carry at least two fresh men ; and every master of a fishing ship vhsll carry at least one fresh man in every fiv« --mam fOMMRnCE AND NAVIGATION. 1.33 ry- oi* their sliip's comptiny ; aiul llwy arc ited to tbe master, except the passage money ; and such deserter may be apprehended by warrant, and imprisoned until trial ; and on conviction, he shall be publicly whipped, and sent back to tbe country to which be belongs. ' Servants in the fishery, are to be paid no more than half tbe wages which may be due to them at the time of such payment, and the rest must be paid immediately at the expiration of the covenanted time of service in good bills of exchange, except only the passage money. All fish and oil is liable to the payment of u COMMFRCr, AND NAVIGATION. 137 wn)2;r!(, which uught tu he puid hefurc all other dchti. ^ ^ 7, The courts of justice estahlished iu Newfoundltuul, arc (I.) The supreme court, having criiuinul and civil jurisdictiouH, of all crinicH and conipiaints arising in Ncwiuund- land, and on the inlands and seas to which ves- lels repair from that island, for carrying on the fishery, and on the hanks, (^i. ) The surrogate courts, which have a civil jurisdic- tion only, to the same extent as the gupremo court. In any cause exceeding 40s, if the defendant requires it, a jury may he summoned in cither court; and for want of a suflicient numhcr of jurors, the governor may appoint two accessors to the chief justice, and each surrogate may likewise appoint two persons to he his accessors. Upon any judgment given in a surrogate court for any sum exceeding £iO, an appeal lies to the supreme court; and upon any judgment in the supreme court, for any sum exceeding j^lOO, the party cast may appeal to his Majes- ty in council, notice and security heing given in hoth cases, to the respective judges, with- in two days after such judgment has been given. 138 SUMMARY OP TIIR I.AWf Of I ll Wliriicvcr any prrton, in conicqunnre of debts contrurlc'i! within the iiUnd of New- foundland, or on the hankii, or the ialnndu and leufi adjacent, happens to be inflolvent, the court shall immediately take order for discovering, collecting, and selling the eflfects and debts of such person, and distributing the produce among his creditors; and in such case, the ser- vants' wages shall first be paid 20 shillings in the pound, for the then current season; in the next place all creditors for supplies furnished in thcilicn current season, shall be paid 20 shil- lings in the pound: and, uU other creditors shall be paid rateably as fur as the fifccts will go. [f such insolvent person has made a true disclosure of all his elFects whatsoever, and has conformed himself to the order and direction of the court, it shall, with the consent of one half in number and value of his creditors, be certified by the said court, and such certificate shall, when pleaded, be a bar to all suits for debts contracted in Newfoundland, prior to the failure. The chief justice may settle forms of process in the diflfercnt courts of Newfoundland, and appoint the fees to be taken therein, and the sheriff's fees. He or any person appointed by him, may grant letters of administration, and » >. 11 COMMBRCB AND NAVICATIOM. 1.39 nd the probate of MrilU, without which uiithority, the eflectt of decetiied perioiii ihall nut be ad- miiiiMtercd. No other roitrt ■hall hold plea of any «uit or complaint of a civil natiin . 3. The court of Vice-Adniirnlty, may hold plea of maritime cauioa, and cuusen of the re- venue; but, it may not take copiizanrc of the wages of «eamen and tishermen. I'pon any judf^ment given in thin court, appeal may be made to the proper Admiralty court in Kn^land: and, in cases of pri/e vesHels, in time of war. the appeal licA to certain comminMioneni of ap- peal in England :* but in both caHr». innnediate notice of hucIi intention must be u^iveii to the court, and security entered into, to the natinfac- tion of the judj^e, to prosecute the ap|)eal. 4. The court of McsNions may hear and deter- mine all disputes concerning the wages of sea- men and (isliermen, ail oHenceH committed by the employers of such servants against any act relating to Newfoundland, and all penalties imposed by the said acts may be recovered be- fore that court, if not above £\0. All hncs levied before any court, and fees received in the surrogate courts, are to be accounted fur in the supreme court. i' 110 •VMMARY OF Tllf I.AWM Of \f any action «liull lie hnitiglit u^aiiiit any person (or itny (liin^ dour in piirmunrr of this trt, and u vi^rdii t nIiuII pu^n Tor tiir ddVndiint, lir ahull rrrovcr trrblr contn. And no auit or conipliiint "dull he comnifncrd on nny ratinr of action, at tli« distance of niorr than nix )cari from the time whvu luch cauie o( action aruie. I'i. riNii. i Heney and Iladdon, Printeri, 18, TitbcrMclc Walk, Finibury. t : 1 •y it t, »r