^^' % T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF 0. K-HdaiHs THE LAW OF SHIPPING. TREATISE ON THE LAAV OF SHIPPING. BY HENRY FLANDERS, AUTHOR OF "A TREATISE ON MARITIME LAW." rif I LADE LP III A: T. & J. W. JOHNSON, LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, NO. 197 CIIE.STNUT 8TUEKT. 1853. . I** Entered, according to Act of Congress, in the year 1853, BY HENRY FLANDEKS, In the Clerk's Office of the District Court of the United States for the Eastern District of Pennsylvania. T C. SHERMAN, PRIMER, 19 St. James Street Ci IL h is !5Dliinn IS INSCRIBED TO PJCHARD COXE M'MURTRIE, ESQ., OF THE PHILADELPHIA BAR, AS A TOKEN OF THE HIGH RESPECT WHICH IS ENTERTAINED FOR HIS LEARNING AND VIRTUES, BY HIS miEND, THE AUTHOR. 756524 PKEFACE. Having endeavored, in a previous volume, to col- lect and embody the doctrines of the maritime law, upon several of the topics belonging to that branch of our jurisprudence, the author has thought that the performance of the same task with respect to the subjects contained in the present volume, would not be unacceptable to the Profession. In the plan of the work, the author has aimed more at practical convenience than scientific ar- rangement. He cannot forbear to observe in this place, that the Federal Courts, in the exercise of their enlarged Admiralty jurisdiction, have reflected honor upon the moral and intellectual elevation of the American Judiciary. And in collecting together the principles which they have recognised or established upon the various questions that have been presented for their adjudication, the author trusts that he has done the Profession " some service." PniLADELruiA, 18G3. CONTENTS. PART I. Table of Cases, 21-30 CHAPTER I. Of the Persons Employed iu the Navigation of Mer- chant bhips, .-.....• oo— 1 1 CHAPTER 11. Of Statutory Provisions with respect to Seamen, . 42-84 1. Of the Shipping Articles. 2. Of the Seaworthiness of the Vessel. 8. Of the Supplies Required to be put on Board. 4. Of the Medicine Chest. CHAPTER III. Of the Master's Authority over the .'Mariners, . . 85-lOG CHAPTER IV. Of OfTenccs committed at Sea, ..... 107-128 2 XVlll CONTENTS. CHAPTER V. Of the Discharge of Scaiuon, 1-20-159 1. Of the Causes that Justify the Master in Dis- charging a Seaman. 2. Of the Mate, and the Master's Authority to Discharge or Disrate. 3. Of the Laws for the Relief of Seamen. CHAPTER VI. Of the Master's Authority as to the Employment of the Ship, 160-178 CHAPTER VII. Of the jMaster's Authority with Respect to the Vessel, 179-188 1. Of the Master's Relation to the Owners. 2. Of his Duties in Time of War. CHAPTER VIII. Of the Master's Duty upon an Interruption of the Voy- age, 189-195 CHAPTER IX. Of the Carriage of Goods, 196-231 CHAPTER X. Of the Commencement and Prosecution of the Voyage, 232-270 CHAPTER XL Of the Delivery of the Goods at the Port of Destination, 271-287 CONTEXTS. XIX CHAPTER XII. Of the Ship-owner's Responsibility, .... 2SS-313 CHAPTER XIII. Of the Seiiuian's Remedy for his Wages, . . , 314-352 PART II. CHAPTER I. Of Part-Owners, 355-390 CHAPTER II. Of the Liability of Mortgagees of Ships, . . . 391-399 CHAPTER III. Of Pilots, 400-422 CHAPTER IV. Of the Conveyance of Passengers, .... 423-448 CHAJ'TKU V. Of the Conveyance of Goods in a General Ship, . . 449-471 XX CONTENTS. CHAPTER VI. Of the Earning :nul Payment of Freight, . . . 472-518 CHAPTER VII. Of Stoppage in Transitu, 519-543 . TABLE OF CASES. A. Aberfoyle, The, 283, 425, 473, 475 Achsah, The, 425, 446 Ada, The, .... • 49 Addison v. Overend, , 384 Adonis, The, 185, 186 Agincourt, The, 88, 89 , 98 Agricola, The, . 410, 414 Akerman v. Humphrey, . . 541 Alexander, The, , 186 Aline, 'I'he, , 425 Alien V. Mercicr, 528, 529 Allen V. Williams, 4G4, 465 American Ins. Co. v. Cente ;r, 247 256 V. Cori< jr, . 267 V. Ogde 'n, . 204 Amiable Nancy, The, , 176 Amies v. Stevens, . 307 Amroyd v. Union Ins. Co. , 251 Anders v. Merediili, . 389 Andrew v. INIoorhousc, 426, 491 Angerona, The, , 510 Ann D. Richardson, The, . 251 252 Anne, The, . 407, 418 Annen v. Woodman, . . 199 Ann (Jrcen, The, . 489 490 Anionia Johaima, The, , 282 Apollo, The. 359, 3G1, SC 2,370 382 Apollon, The, . , 178 Appleby V. Dods, , 55 Arngo V. Cnrrol, . 181 Arnold v. (Jiimp, . 375 Arthur v. Burton, , 180 Anh V. rutniim, . . 520 522 Aepinwall v. IJarilelt, 328 Adton V. Heaven, 428 yXtkinson v. Mnling, . . 398 Aikyns v. Burrows, 3:., 114, iir., 14 8, 1.50 345 Ailnnlif, The, . 220 Alln«, The, 227 Aiwood V. The Reliance ' 'ronsp Co , , , 304 Aurora, The, . 179 360 Austin V. Craven, , , 540 V. Thr- .Vlnnchcsier ,&.c., R.Co., . 437 ,439 Aymer v. Asior, , 2G4 B. Backhouse v. Sneed, . Badlam v. Tucker, . Bailie v. Modigliani, . Bains v. The Schooner & Catherine, Baker v. Corey, . Balderston v. Mauro, . Bangs V. Little, . Barber v. Brace, Barker v. Blakes, Barker v. Cheriot, . . V. Havens, V. Hodgson, . Barn v. Morris, . Barque Talent. The, . Fiarrett v. Goddard, . Barrow v. Coles, Barton v. Wolliford, . Bas v. Steele, Baiavia, The, Bates V. Todd, . Batson v. Donavan, . Baxter v. Leland, Baylis v. Fettyplacc, . V. Usher, . Beal v. Thompson, Beaver, The, Bell V. Humphries, v. Read, Benares, The, . Bennett v. iJutton, V. Moiia, Benton v. Whitney, . Betsey Caines, 'J'hc, . Betts V. (iibbons. Biddlfcombc v. Bond, Bigelow V. Hcaton, Birckbeck v. 'I'ucker, Bishop V. reniliiiid, . V. Ware, i^lnck V. The Louisiana, inaireau. The, . iJlako. The, Bluri( hard v. [3uckram, V. Isaacs, . Bland, ex parte, Bloxom V. Hubbard, . 307 162 247 ) ames 503, 43 2, 43 214, 474 5, 61 519 86 209, 214, 216 223 516 504 443 384 72 540 467 296 229 414 454 1, 437 216 484 304 485 424 378 291 321 432 422 106 284 532 519 502 397 203 273 143 234, 235 143 517 432 372 384 198, XXll T A 1! L E F C A S E S. Bodcnham v. Ronnoii, 43(; Hold IhuTl.MisjIi, ■! Iio, 17:!. 3J1 Holin V. Ihitlniijzlo, . .'i34 ]?oli(m V. Amer. li>s. Co., -J TJ, 00 J .4 JO Boiiil V. iirig Cora, . v.'3j. 23(i V. Erost, . , 454 BorU V. Norion, . 242, 483 Boston ami Carjro, The, 234, 235 Hoililingk V. liiglis. . 533 Rouclier v. Lawson, . , 161 IJowflier V. \Viilstrom, 175 Buwcii V. yiuddard, . 172 Bowman v. 'I't-all, . 304, 312 Boycc V. Anderson, , , 428 V. Baylifle, , 424 V. Douglass, , 424 V. Welch, 309, 313 Boyle V. M'Lauglilin, . 232 Bradlnirst v. Col. Ins. Co. . 246 Bradi^ireet v. B.ildsvin, 484 Branett v. iiowlby, . , 466 Bray v. Ship Atlanta, 331 Brig George, The, 75, 77, 79, 82, 84, 154 Bronde v. Haven, 327, 328 Brooke V. Pickwick, . 432, 434 Brooks V. Bondsey, . 391, 394 V. Dorr, . 328 Brouncker v. 8coit, . 503 Brown v. Delano, 468 V. Hnni. . 517 V. The Independen ce, . 99 V. Jones, . 46, 48, 50 V. Lull, . . 54, 328 V. Ralston, . 27 7, 442. 498 V. Shaw, . Bryant v. Com. Ins. Co., Buck V. Hatfield, V. Lane, . Buckley v. Eurniss, . BufTington v. Curtis, . Buller V. Eisher, Bunney v. Foyntz, Burgen v. Sharpe, Burk V. Royal Ex. Co., Burke v. Clark, . V. Treviti, Burkink v. Purin, Bussey v. Donaldson, Buller V. .McLellan, . 231 254 221 144 532 464 308 532 238 203 374 178 499 409 87, 101, 157 255, 521 170, Cambridge, The, ... 48 Camden &. Ainboy R. & T. Co. V. Baldauf, 440 V. Burke, . 435 ,436 Campbell v. Steele, . , 356 V. Steine, . , 378 V. Thompson, . , 267 Caneran v. [Nleaburn, . , 258 Card V. Hope, 362 365 Carey v. The Betty, . 344 Carlisle v. Steamer Budora J 372 (.""nrlton v. Davis, . . 95, Carr v. The Lancashire, <.^c., Co., Cuiruihers v. Sydcbotham, Casco, 'J'lie Brig, 1G6, 292, 293, Case V. W'oolley, Cnsilley v. Young, Cassius, The Schooner, 277, 348, Catharine, The Ship, . Cathariiia Elizabeth, The, Cato, The, Cazcv. Halt. Ins. Co., . 247, Certain logs ol niahogany, 281,484, Chamberlain v. Chandler, 178, 423, 425, Charnbcrlin v. Milbank, . Chaniplin v. Builer, . . 391, Chandler v. Belden, . v. Spragiic, . 460, 4C2, Chapman V. Durant, Chase v. lOagle Ins. Co., . V. West more, . Chcever v. Smith, Chesley v. Thompson, Cheviott V. Brooks, . Chiekering v. Eowler Chipjieiidale R. Co., . Christiana, The, Christie v. Griggs, V. Lewis, Chusan, The Barque, Citizens' Bank and Nantucket Steam Co.. . . . 428, City ol' London, The, . New York V. Miln, Clark V. Barnwell, 215, 217, 232,263, V. Mass. E. and M. Ins. Co., . . . 249, Clarkson v. Edcs, Clay V. Harrison, . 274, V. The Lancashire .* 409, V. W man, 502, 251, 515, Clemson v. Davidson, Cliflbrd V. Hunter, Cock V. Taylor, . Cod wise V. Hacker, . Coffin V. Storor, Cole V. tJoodwin, Coles V. Mar. Ins. Co., Collins V. I'nion Trans. Co., Colson V. Bondsey, . . 391, Colt V. M'Mechen, . . 307, Columbian Ins. Co. v. Catlett, . Commercen, The, 227, 228, 229, Com. V. Shultz, . Connor v. Levering. Conrad v Atlantic Ins. Co Constitution, The, Converse v. Symes, . . 384, Conyers v. Eiiiiis, . . 519, Cook V. Gourdiu, Cooke V. Com. Ins. Co., 171, 194, Cooley V. Board of Wardens, 402, Coope V. Eyre, .... 105 439 409 29(; 322 245 502 337 187 236 478 501 430 453 394 .501 542 372 242 501 375 389 193 275 439 422 428 281 375 429 333 445 471 250 502 525 436 281 155 507 237 518 442 234 507 394 309 247 491 431 272 542 416 3.S5 520 201 272 405 389 TABLE OF CASES. XXIU Cope V. Cordova, . . • 275 V. Dodd. . . 443, 444, 491 Copeland v. N. E. Mar. Ins. Co 154, 155, 265 Copenhagen, The, . . . 488 Cordray v. Mordecai, - • 391 Coriolaiui?. The, . 91,93,135 Cotel V. Hilliard, ... 57 Countess ot Harcourt, The, . 48 Cox V. Harden, .... 46G V. Reid 372 Craven v. Ryder. . . • 221 Crawshav v. Hornfrav, . . 501 Creole, The, . 408, 417, 435, 445 Crosby v. Filch, 218, 234, 296, 302, 304 Crousillal v. Ball, . . .171 Crusader, The, . . . 42, 51 Cumberland, The, . . • ^^^ Cumming v. Brown, . . . 513 Curling v. Long, . . • 482 Cushman v. Ryan, ... 98 Cutler V. Thurlo, . • 391,394 v. Winsor, . . • 318 Cynthia, The, . . • .473 D. Dale V. Hall, . . . 107, 263 Dame v. Hadlock, . . . 394 David V. Eloi 374 David Pratt. The, . . 316, 547 Davidson v. Gwyne, . . . 2(il Davies v. Johnston, . . • 362 Davis v. Child \^0 v. Garrett, . . 218, 234 v. James, .... 462 Dawes v. Peck, . . . 451,462 Dawn, The, . . 131,132,133 Day V. Noble, .... 272 Dean v. Angus, . . • .173 Dcdcrer v. The Del. Ins. Co., 109, 110 Del. Col. V. Arnold, . . • 176 De Lovio V. Boit, . . 338, 339 Dc Moiicr v. The South Carolina, 336 Denison v. .Seymour, . . • 165 Dcpcysier v. Col. Ins. Co., 265, 310 DcrMohr 489 Dctouchcs V. Peck, . . . 492 De Vau.\ v. Salvador, . . 270 Dc Villers v. Schooner John Bell, . . . 311,499,500 Diana, The 490 Dick v. R.ed 303 Die Fir Powers V. Daveiii)ort, . . 303 Pray v. Siinson. . . 80, 81, 82, 154 Prondcrirnst v. Compton, . . 428 Prince (Jcorfic, The. ... 55 Privateer iJevcngr, The, . 177, 183 Propeller Gcncscc Chief, The, 317, 335, 408, 425 Pope .XXVIU TABLE OF CASKS. Proprietors of Trent and Mersey Nav. Co. V. Wood, . . 2CC> Prosper, 'I'lie, .| ■ • • 489 froiecior, The, . . -109, 410, 421 Purviance v. Angus, . . . 35 Putnam v. 'I'illoison, . . . i'>0 V. Wood, . . . 198 R. Racehorse, The, . Ramsay v. Allegre, . R;ipid, The, Raihlinrne v. Neal, . Read v. Com. Ina. Co., Rebecca, The. KiG, 1G7, Reed v. Canfield, 75 V. Chapman, V. Dick. . 198, Reeside, The. 208, 209, 214, Reeve v. Davis, . Retina v. M'Gregor, . Reid V. While, . Relfv. The Maria, . Rex V. Hastings, Reynard v. Brecitnell, Reynolds v. Toppan, Rice V. Shute, . Rich V. Coe, v. Lambert, Richards v. Gilbert, . Richardson, Ann D., Th Richardson v. Maine Ins, Richmond. The, Richmond Turnpike Co. derbelt, . Ring v. Franklin, 391, Ripley v. Scaife, Rising Sun, The, Ritchie v. Atkinson, . V. Bousfield, . Roath V. Thompson, . Roberts v. Holt, . Robertson v. Bethune, V. Clark, . V. Smith, . Robinson v. Baker, . V. Cushing, V. Jones, V. Marine Ins. Rogers v. Thomas, Rohl V. Parr. Rosalie and Betty, The, Ross V. Johnson, V. Ship Active, . Rowley v. Bigelow, . Royal Sa.xon, The, Ruggles v. Buc'knor, . Runguisl V. Diichell, . Rutherford v. M'Gowcn Rymer v. Sowercropp, Ryberg v. Snell, 485, 304, 206, 266, , 84, 158, . 84, 219, 235, 215, 295, 372, 161, 215, e, Co., 223, 151, Van- 393, 394, 199, 486 474 229 312 303 341 159 154 244 297 317 123 387 143 124 60 1C9 384 318 217 201 479 227 1.52 175 396 497 227 512 422 378 503 494 258 385 499 384 270 515 521 310 1% 281 267 453, .524, 535 315 501 303 201 525 519 o.. 519, 265, S. Sahira, The, Salters v. Gccan Ins. Co. 319 ."■ialtus V. Everett, Sampson v. Smith, Santisfiima Trinidad, The, Sarah ("hristina, The, Saratoga, The, . Saville v. Champion, . Sawyer v. Joslin, Scaife v. Tobin, . Scheiflelin v. Ilarvev, 35, '183, 246, 2.56, 266 v. N. Y. Ex. Ins. Co., 190 Schelter V. York, Schormcrhorn v. Soines, Scholfield v. Bell, . 246 ,256, 257 499 94 , 96 e,. , 223 226, 227 132, 133 281 519, 528, 531 500 482, 357, 358, 89 372 523 485 372 258 381 185 Scott v. Libby. Scoitin v. Stanley, Scull v. Biddlc, . Seabrtwk v. Rose, Sea Renter, The, Searle v. Scovill, 190, 246, 247, 256, 267, 4% Sells v. Hoare, . . . .304 Senat v. Porter 284 Seneca. The, . . . .369 Seton v. Low, .... 223 Shatzell v. Hart, . . .502 Shaw v. The York, &c., Co., . 439 Shepherd v. De Benarles, . . 504 Sheppard v. Taylor, . . 322, 323 Sherwood v. MTniosh, . . 151 Shipton v. Thornton. 191, 245, 246, 496 Shirley v. Steamer Bribe, Shore v. Bcniall, Shnliz V. Ohio Ins. Co Siff ken v. May, . Silva V. Low, Siordett v. Brodie, V. Hall, . Sisters, The, Skidmore v. Derdoiiy, Skolfiuld V. Potter, Skrine v. Sloop Hope, Slowcum V. Mayberry, Slubcy V. Heywood, Smith 523, V. Home, . V. Martin, V. Scolt, . V. Shepherd, V. Treat, . .Snee v. Prescott, Snell V. Rich. . Snowden v. PhcnnixIns Soldergreen v. Flight, Solon, The Sloop, Souter V. Baymore, 219, 234,235, 303,485 Southcote's Case, . . . 437 SpaflTord v. Dodge, . . .497 356 203 247 527 198 . 427 . 310 . 365 . 223 323, 324, 347 . 371 . 178 . 532 . 436 190,258, 259 . 308 . 297 93, 143, 144 . 462, 520 . 409 Co., 234, 235 . 282 266,335,341 TABLE OF CASES. XXIX Spartan, The Brig, 321,322,323,324,473,505 Speering v. De Grave, . . 389 Spence v. White, . . .503 Spurr V. Pearson, . . . 344 Sproatv. Donnell, . . .348 Siaadl V. Emliden, The, . . 226 St. Arriaiul v. Lizardi, . . 431 Stanton v. Eager, 450, 463, 464, 524, 542 Star, The 400 State Rights, The, . . .175 Steamboat Orleans v. Phccnix, 321,322,359 Stephenson v. Hart, . . . 463 Stewart v. Hall, . . . 372, 388 V. Tenn. M. &. F. Ins. Co., St. Jago de Cuba, The, St. Jean Babtista, Stockton, The, . Stockton V. Frey, Stokes V. Saltonstall, St. Oloff', .... Stone V. Gent, . V. Godet, V. Ketland, • 35, Stoveld V. Hughes, Strachan v. The &. Co., . Strelly v. Winson, Strong V. Nalally, . 274, 239 339 . 176 . 174 . 428 428, 435 . 338 180 344 182 540 343, 175, Stubbs V. Lund, Trustees of Kno.\ . .531 . 389 279, 280 519, 533, 534 Tabcrv. U. S., . Toggard v. Loring, . . 161, Tafeiit, The Barque, . 'J'anner v. Scovcll, . . 532, Tate V. .Aleek, .... Thames, The Theresa Barrila, The, Thomas JeHcrson, The, . Thomas v. Lane, . 102, 157, Thompson v. IJiisfli, . . 149, V. Hoskins, V. Fitid'r. V. Oakland, The Ship, 46, r,i V. Philadelphia, The, 57, 'I homsoii V. Davenport, V. Mtitnilion, Thorn v. IlickK, Thortidikc v. Iloardinaii, V. Do Wolf. Thome v. While, fH, 90, 98, 143, ThiirHion v. Col. Ins. Co., Tiiion, 'I'he, Todd V. Ritchie, 'I'otie V. rJoodrirh, Towie V. Ketlcll, 'J'ransil, The, 45 348 72 .533 ■28 1 174 282 315 347 1.57 384 373 , 53 314 373 348 391 212 357 347 no 3(;o 1(19 517 409 Trask v. Duval, . . . 502, 507 Treadwell v. Union Ins. Co., 246,251,257 Tribune, The Schooner, Triumpli, Tiie, . Tucker v. Buffington, 391, V. Humphrey, Turner v. Burrows, . Turner's Case, . Twee Jud'rowen, The, Two Friends, The, . , , 164 • • 315 392, 395. 396 540 377, 378 88 , 228 , 424 S6, 87, '. 112, . 66, U. United States v. Alden, V. .Ahnida, V. Amedy, V. Ashton, V. Barker, . V. Casscdy. . V. Coflin, . 140, V. Duval, V. Forbes, 119, 126, V. Freeman, 87 V. Furlong, . V. Haines, . V. Hamilton, V. Ik'innier, V. Holmes, . V. Hunt, . 86, V. Johns, V. Kelly, . 124, V. Klintock, . V. Lawrence, V. Lynch, V. Matthews, V. Morrison, V. Netclicr, . V. Palmer, . V. Peterson, 94 V. Ruggles, 92, 96, V. Savage, . V. Sharp, V. Smith, 88, 98, 116, 125, V. Stevens, . V. Taylor, 100, 103, V. Thompson, V. Tully, . V. Wicklium, V. Wilder, . V. Winn, United Ins. Co. v. Scdtl, 267,272, Urquhart v. Barnard, V. Vnllejo V. Cowper, Vandivrr v. 'I'ilgliman, Van Syrkel v. i')wing, Van Zellcr v. .Saiider«, 115, , %, 141, 103 118 113 122 126 128 142 144 412 , 98 115 125 104 121 115 100 112 125 115 121 412 128 127 MO 116 116 331 121 137 126 104 157 122 117 '.II 343 )03 :',H9 303 no 323 204 503 XXX TAHLE OF CASES. Vcncock V. MTnll, . , . 55 Vcriinril v. Hudson, . 208, 209, 210 Von 110 V Jewell, , :>i'.) Vibilia. The. . , , 144 Vigilantiii, The, . , ■M] Violett V. Siettiiiiiis, . 280, 482 Volunteer, The Schooner, U6 , '280 484 501 Vrow Judith, The, . 18-> Anna Catharina, The, . 4;)0 w. Walcott V. Eacle Ins. Co., . 41)2 Waldo, The, KIS. 171, l!)9,20fi,208, 20'.) Walker v. Cassawny, . 456, 49!) V. Mail land, . . . 203 Walley v. .Moiiigonierv, . . 4(i() 169, 212, 471 519, 538, 542 . 504 163, 1G9, 170 . 277 . 454 . 360 56, 59, 72, 74 Merchants' Louis. %, 310 Walter v. Brewer V. Ross, . Ward V. Felt on, V. Green, . Wardell v. Mourillyan, Warden v. Greer, Warrior, The, Washington, The, Waters v. Ins. Co., Watson V. Duykinck, . 443, 473, 491 Weal V. King 386 Webh V. Fierce, . . 348, 352 Weed V.Saratoga &S.R.R. Co., 434 Weir V. Aberdeen, . , . 199 Welch V. Hicks, . . . 514 Wendover v. Hodgeboom, . 391 Wentworih v. Ouihwaite, . 526 Weston V. .Minot, 220, 272, 498, 512 V. Penniman, . . 396 Whiiall V. Brig M'Henry, . . 200 White V. Baring, . . .322 V. Kearney, . . . 275 V. Wilks, . . . 540 Whitehead v. Anderson, . . 537 Whitenian v. The Neptune, . 317 Whitesides v. Russell, . 245, 457 Whitney v. Eager, . . . 347 Firemen's Ins. Co., . 258 Wickham v. Blight, . . . 55 Wiggiii V. Aniorv, . . .110 Wilcox V. rarinelee, . 303,311,456 \Viilit>lniiiia Fleonora, The, . 48(! Willard v. Dorr, . . 55, 193 William, The, . . . 297,419 William Harris, The, 84, 92, 345, 346 William Henry, The Brig, . 198 Williams V. Bo.x of Bullion, . 236 V. Grant, 293, 295, 296, 297, 303 V. Nichols, . 194, 213, 272 Willings V. Blight, . 246, 362, 368 Willouglibv V. 15ackhoiise, . 304 Wills V. The St. Nav. Co., . 439 Wilnisliurst v. Bowker, . . 4f)7 Winihrop v. The Union Ins. Co., 234 Wilson V. Belvidere, The, . 157 Wilson V. Brown, . . . 275 V. rinirchnian, . 285, 463 V. Mary, The, 90,92, 93, 135 Wolf V. Summers, . . 283,444 Wolfe V. Myers, . . . 454 V. Oder, The,. . . 51 Wood V. Nirnrod, The, 46, 150, 151, 152, 153 V. Roach, .... 542 Woodrop Sims, Tlie, . . 174 Wright V. Wilcox, . . .175 Wyatt V. IVlarcjuis of Hertford, The, 375 Wysham v. Bosser, . . . 329 Yates V. Brown, V. Duff, . V. Railston, Young, Ex parte, V. Fewson, York V. Greenough, . 4C9 . 427 . 181 358, 380 428, 431 . 499 Zachrisson v. Ahman, . 456, 466 Zephyr, The, . . . .267 Ziele V. Ex'rs of Campbell, . 385 PART I. THE LAW OF SHIPPING. CHAPTER I. OF THE PERSONS ExMPLOYED IN THE NAVIGATION OF MERCHANT SHIPS. 1. The maritime law, with providence and fore- cast, has assigned the powers, defined the rights, and prescribed the duties of that Large and meritorious class of the citizens of every maritime state, who are employed in the navigation of its merchant vessels. The refinements of modern civilization have miti- gated or abrogated many of its rules, reducing in many instances the power of the master on the one hand, and conferring on the other, additional and superior privileges upon the mariner. The edifice has been enlarged and improved, but the original foundation remains. Higher praise could not be be- stowed upon the practical skill of comparatively rude architects, than is indirectly expressed in this signi- ficant fact. 2. In the appointment of the master, the law puts no restraint upon the shipowners, great and exten- sive and important as are his powers and duties.' ' The reader will find a very interesting treatise, in the "Sea Laws," p. 442, upon owners, masters, and mariners. It is pro- 2 34 THE LAW OF siiirriNG. By holding them responsible for his conduct, the law insures care and circumspection in his selection. The master of a vessel is bound to his owners, and he and the3' to every one who may be afiected by his fesscdly taken from Molloy's work (Z>e Jure Maritim')), and tho niaritiinc codes. In the third article it is said: "The persons ordinary for sailing in ships, have divers denominations; the first, which is the master, is known to us and most nations, both now and of old, and especially by the lloman laws, is termed navicula- rius or maghter, or exercito navis, in English rendered master j in the Teutonic, skipper; by the Grecians, navarchus or nau- clerus ; by the Italians, j)a(i'ono. But this is only to those vessels that are ships of burden and carriage : for in ships of war the principal officer is commonly called commander or captain. The next in order of office to the master, is he who directs the ship in the course of her voyage ; by the French called pi7o Thome v. White, 1 Peters' Adm. R. 175. » The Agincourt, 1 Hagg. Ad. R, 290. In the case of Fuller V. Colby, 3 Wood. & M. 6, Judge Woodbury said :— " This Court •will always be quite as anxious to redress any wrongs inflicted on the less intelligent seaman as on his more educated oflSccr, — the law demanding a strict adherence to duty from both, jrrojjcr lan- guage no less than proper acts, are the only means of protecting the rights of both, and rendering their situations respectable, and securing the interests and welfare of all concerned in the voyage." And he held, that a captain may strike a seaman for disrespectful words, upon a principle common alike to this relation and that of parent and child. See also 4 Wash. C. C. R. 340 ; Ware's R. 224; U. S. V. Smith, 3 Wash. C. C. R. 525 ; U. S. v. Freeman, 4 Mason, 511 ; Thome v. White, 1 Peters' Adm. R. 171. Judge Woodbury was under the impression, that the language of Judge Story, in the case of Cushman v. Ryan, 1 Story's Rep. 100, was intended to deny that the master may strike a seaman for disre- spectful words. There is nothing, however, in his opinion in that case, that will justify that construction. The syllabus of the re- porter, however, states, that "no words of provocation will justify an assault, although they may constitute a ground for the reduc- tion of damages." It is true, in common cases between indivi- duals, that words never justify blows ; but (it was said in the case of Fuller v. Colby), between oSicers and seamen, all blows are OF THE master's AUTHORITY, ETC. 99 72. Ordinarily, the right of inflicting punishment on shipboard is confined to the master. A distribu- tion and extension of power, would be the parent of confusion rather than of order, and, by breaking in upon the unity of authority, would tend rather to the relaxing than the sustaining of good discipline.' The infliction of punishment by the subordinate ofiicers of the ship, when the master is on board and at hand, can be justified only by the immediate exigencies of the sea service, or as a necessary means to suppress mutinous, illegal, or flagrant mis- behavior on the part of the seamen, or to compel obedience to orders or other duties, which require prompt and instant action and interference on the part of the officers, and admit of no delay. 73. If the circumstances are not urgent and im- perative, it is the duty of the mate and other officers to consult the master as to the infliction of punish- ment ; for he, being in command of the ship, is alone proper for disobedience and insolence, wbicli are justifiable by a parent to a cbild. I am unable to find anything in the case of ('ashman v. llyan, that runs counter to this doctrine, unless, indeed, it be, that Judge Story thinks there is more analogy be- tween the relation of master and seaman, and master and appren- tice, than between the relation of parent and child. Brown v. The Independence, Crabbc's 11. 54. In this case it was held, that where a seaman, shipped for a voyage, is so severely chastised, with an improper weapon, bccau.sc of his insolence, as to be neces- sarily left behind at a foreign port, he is entitled to his wages to the time of the vessel's arrival at the last port of delivery; but not to the benefit of the Act of 28th of Feb., 1S03. Sec Forbes V. Parsons, Id. 28o, a,s to what will entitle a seaman to recover damages for an assault and battery from the officers of a ship. ' ElwcU V. Martin, Ware's Rep. Gl. 3 100 THE LAW OF snippiNa. ordinarily intrustetl with the regulation of the ship's discipline; and no other person has any right to inflict punishment without his express or implied sanction thereof. Cases may, and do arise, where instant ohedience to the orders of the mate is neces- sary ; such as orders to take in sail in a sudden scpiall, or to cut away the rigging or spars, or to go aloft on a sudden and emergent duty, when the mate may instantly enforce ohedience by the application of positive force, and, indeed, of all the force re- quired to produce prompt obedience. But, then, every such case is justified only from necessity, and the force so used is not so much a punishment as it is a means of compelling the performance of a press- ing duty, admitting of no delay.' This is the only exception known to the general rule, that the master has the sole authority, when on board, to inflict, or cause to be inflicted, punishment on any of the crew. Hence, if he is present, when any punishment is in- flicted by a subordinate officer, and can prevent it, and does not, he is personally responsible for the act, and, by his acquiescence, adopts it, as done by his authority.^ 74. When the master is not on board, the next highest officer on board succeeds to his rights and authority pro tempore, so far as they are necessary for the due performance of the ship's duties.^ While the inferior officers, as well as the common seamen, are 1 U. S. V. Hunt, 2 Story's R. 125, 126 ; U. S. v. Taylor, 2 Sura. R. 588. " Ibid. 3 U. S. V. Taylor, 2 Sum. R. 588. OF THE master's AUTHORITY, ETC. 101 bound to obey the orders of the master, it must be understood that they are not bound to obey all his orders indiscriminately, whether lawful or unlawful. Hence if the mate, in obedience to the orders of the master, should inflict on a seaman, an unjust and cruel punishment, he will be held responsible as a joint trespasser with the master.' 75. It is the duty of the master to prevent, as far as he may, any undue exercise of authority by his subordinate officers, and any abuses, injuries, and trespasses by them. If he is present when any of the subordinate officers inflict chastisement upon the crew, he is bound in duty to interfere and restrain it, if it is improper in its nature or character, or un- justifiable under the circumstances. If he may interfere, and he does not, he must be deemed to assent and encourage it ; for no officer in his pre- sence has any right to inflict punishment without his assent or direction, unless upon an emergency, which admits of no delay. It is not sufficient for him to excuse himself from this interposition upon any notions of courtesy, or of upholding the autho- rity of the officers, or of supporting the harmony and discipline of the ship. The law has intrusted liiin with summary powers for the good, not of the officers alone, but of the crew also, and indeed for the general good of the maritime service in which he is engaged. Wliilc lie should uphold the just dis- cipline oi" the ship witli a steady confidence, he is to take care that the crew are not made the victims of ' Butler V. M'Clellan, Ware's R. 232. 102 THE LAW OF SHIPPING. the insolence, the pcassions, or the caprices of the officers nnder him.^ 70. While the law ui)holds the authority of the master to inllict punishment for a proper cause, and with proper dispositions, it frowns upon all punish- ment inflicted for inadequate cause, or with improper motives. By an Act of Congress, it is provided, " That if any master or other officer of an American ship or vessel on the high seas, or on any waters within the admiralty and maritime jurisdiction of the United States, shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison any one or more of the crew of such ship or vessel, or withhold from them suitable food and nourishment, or inflict upon them any cruel and unusual punishment, every such person so offend- ing shall, on conviction thereof, be punished by fine, not exceeding one thousand dollars, or by im- prisonment not exceeding five years, or by both, according to the nature and aggravation of the offence.^ 77. In the construction of this statute, it has been held, that the word " malice" means a wrongful act done intentionally, without just cause or excuse. The statute makes a distinction between the import of the words "malice, hatred, and revenge." Malice indicates the mildest form of wrongful intention; and hatred, or revenge, the more intense form, result- ing from bad passions, and gross malignity and de- 1 Thomas v. Lane, 2 Sum. R. 111. » Act of 1835, ch. 40, sec. 3. OF THE master's AUTHORITY, ETC. 103 pravity of heart. If the offence were not punish- able, unless there were bad passions in the case, then hatred or revenge would have been the only appro- priate words. As the language stands in the statute, the word "malice" has a substantial meaning and covers all cases of intentional wrong not included in the other words.' To incur the penalties of this act, there must exist not only malice, or hatred, or revenge, but there must be a want of justifiable cause for the beating. If the party inflict the injury, how- ever maliciously ; still, if he has a justifiable cause, the statute offence is not committed. Malice, hatred, or revenge, must concur with a want of justifiable cause to inflict the injury, to constitute the statute offence." 78. If the mode of punishment, or coercion, was unjustifiable, or, in other words, if there was no jus- tifiable cause for the punishment, then the jury must determine whether it was done by the party from "malice, hatred, or revenge." And in passing upon this question, they must look at all the facts of the case.^ The word " crew" employed in the Act, was intended to include the officers, as well as the com- mon seamen. It is used as equivalent to ship's com- pany.* Wliile the master may restrain the commis- sion of great crimes on the part of the crew, and is bound to do so, he has no judicial authority to punish the criminal. IILs authority and duty are limited to « U. S. V. Taylor, 2 Sum. R. 537. ' Il.id. ' U. S. V. Aldcn, 7 Law Kcp. 4G9. ♦ U. S. V. Winn, 3 Sum. 11. 200. 104 THE LAVr OF SHIPPING. securing his person and bringing him before a proper tribunal of his country for punishment. i 79. The duty of the seamen, after they have once entered fully on their service under their contract, is obedience, and that obedience is due, and may be enforced, as well in a river, at anchor, and be- fore a clearance is obtained, as upon the high seas, and after a regular clearance. If the rule of law were otherwise, all order would be frustrated, and the due navigation and safety of the vessel rendered impossible.^ • Abbott on Shipp., 239, and notes. 2 U. S. V. Staly, 1 Wood. & M. 338 ; U. S. v. Hamilton, 1 Ma- son, 443 ; U. S. V. Stevens, 4 Wash. C. C. R. 547. In the case of U. S. V. Staly, supra, which was an indictment for a revolt, it appeared in evidence that the defendant, and several others, shipped on a voyage to Apalachicola, or elsewhere, for a market, and were taken on board the barque the evening previous to the transaction complained of. The vessel lay at anchor in the stream, and in the morning on unfurling the sails, the mainsail was asserted by the men to be in such a dilapidated condition, and some of the rigging so much out of order, that they objected to going to sea in the vessel, as not seaworthy, and made offers to rescind their contract, and pay back the advance which they had received in money. The officers denied that she was unseaworthy, and under- took to enforce duties under the contract, which led to the collision and resistance complained of. Judge Woodbury charged the jury, that whether the vessel was seaworthy or not, was a fact to be set- tled by them. If she was not seaworthy, and the seamen, on going on board and examining her, objected to serving on that account, it must be considered a refusal to enter upon the discharge of their contract, and not a violation of duty after their service has com- menced under it. In such a case, the remedy against them, if any, is a civil one, for not beginning to serve under the articles, and not a criminal one, for breaches of duty, after having entered OF THE master's AUTHORITY, ETC. 105 80. When a seaman complains against the mas- ter for an assault, and it is proved that he has been guilty of misconduct which would justify some punishment, he cannot entitle himself to a decree but by showing that the punishment was excessive in degree, or unjustifiable in kind. The master has a right to correct the disobedience of a seaman by corporal punishment in cases where the necessities of the service call for it, and though it should be sparingly resorted to, a Court will not hold the mas- ter amenable if he does not pass the limit of a rea- sonable and moderate discretion. However the truth of the fact may have been, the onus is upon the libelhmt to prove that such limit has been passed.' 81. When a seaman brings a suit for damages against the master for illegal and unjustifiable punish- ment, he puts in issue his general conduct and cha- upon duty. If subsequent to the shipment and commencement of Bervicc, the vessel is believed not to be seaworthy, the seamen cannot refuse obedience, but may ask a survey if in port, and if not, but within siglit of land, request the master to return and have the survey. Should he then conduct unreasonably, or in any way treat them with unnecessary severity, their remedy is at law after their return, and not a resort to violence, unless in danger of the actual loss of life, and then at their peril as the result may turn out. Judge Woodbury also held, that if the vessel had not cleared, but was lying at anchor in n navigable stream, where the tide ebbs and flows, the seamen (ni board are bound to obedience; and that the Court probably had jurisdiction over a revolt there, and would exercise it, if no evidence was offered as to the limits of tho jurisdiction of a State ; and in the absence of such cvidi;nce, tho objection to the jurisdiction would be considered as waived. ' Carleton v. Davis, Davies K. -"21. Ware, .F. 106 THE LAW OF SIIirPING. racter during the voyage, or rather enables the master to put it in issue. But when the master means to rely on such matter in justification, or in mitigation of damages, he must set it out in his answer in a distinct allegation. The libellant has then notice of the defence, and may be prepared to meet it. But if the answer contains no such defen- sive allegation, the libellant has no reason to suppose that his general conduct for the voyage is intended to be called in question.^ ' Pottingill V. Dinsmore, Ibid. 208 ; Benton v. Whitney, Crabbc's 11. 417. 107 CHAPTER IV. OF OFFENCES COMMITTED AT SEA. 82. Haying treated, in the preceding chapter, of the master's authority over the seamen, as that authority has been recognised or defined by judicial tribunals, we now proceed to consider those parti- cular acts, the commission of which involves crime and consequent punishment. We shall not enter far into the province of criminal law, and specify all the offences which mayor are likely to be committed at sea. Our purpose will be accomplished by an ex- amination of those particular offences which are of so dangerous and aggravated a nature, that they have challenged the attention of Congress, and been made the subject of legislative enactments. We shall, how- ever, make an exception in the case of barratry, an offence belonging perhaps more properly to the law of marine insurance, but nevertheless of such frequent occurrence, that it deserves to be mentioned here with some particularity. 83. Barratry is an act committed by the master or mariners of a sliip for some unlawful or fraudulent purpose, contrary to tlieir duty to their owners, whereby the latter sustain an injury. It follows, therefore, from the very terms of the definition, tliat it cannot be committed l)y a master who is owner 108 THE LAW OF SHIPPING. for the voyage; because he cannot commit a fraud against himself But it may be committed against a person who is owner for the voyage, although he may not be the general owner of the ship.^ 84. A part-owner, it seems, being master, may ' Marcardier v. Chesapeake Ins. Co., 8 Crauch's R. 39 ; Abbott ou Shipping, p. 24'2. " The term harratn/," says Lord Tentcrden, " which is often used as well by foreign writers as those of our own nation, is generally understood in this as in most other coun- tries to denote a fraudulent act of the master or mariners com- mitted to the prejudice of the owners of the ship. In France it is often used in a more enlarged sense, and comprehends acts of mere ignorance or uuskilfulncss not accompanied with a fraudulent de- sign. To our definition of barratry, it is not essential that the act should be done by the master for his own benefit, or with the intent of injuring his owners. Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled, or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners, or if he disregard an iceberg, or attempt a breach of a blockade, or be concerned in smuggling, or connive at smuggling by his mariners, he is guilty of barratry. And when a master had general instructions to make the best pur- chases with despatch, it was considered that such instructions must mean legal purchases, and legal despatch, and that going into an enemy's settlement to trade, although his cargo would be more speedily and cheaply completed there (the ship being seized and confiscated on account of it), was barratry. Nor was it thought to make any difference that he intended thereby to promote his owner's interest. It is not for him to judge in cases not intrusted to his discretion, or to suppose that he is not breaking the trust repcscd in him, but acting meritoriously, when he endeavors to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been their own sense of public duty, but also from a consideration of the risk or loss likely to follow from the use of such means." OF OFFENCES COMMITTED AT SEA. 109 commit barratry against another, and the owners or master may commit the offence against the general freighter, or with consent of the freighters against the owners.^ It has been said, that the fraudulent act must tend to the benefit of the offending parties/ but this is not necessary to constitute the offence.^ True, if the act is for the interest of the master, or the mariners, it will evince a strong presumption of fraud, but if it is for an unlawful purpose, the offence is committed, no matter whether the party derives benefit or not." 85. If the question turn merely on the fraud, it will always be necessary to look at the motives and intention which iniiuenced the act. If the motive ' Ibid. « Kendrick v. Delaficld, 2 Caines' R. 71. 8 Dedercr v. The Del. Ins. Co., 2 Wash. C. C. R. 61, 66; Ab- bott on Shipping, p. 243. An error of judgment on the part of the captain in a matter where he is intrusted with discretion, does not of course fall within the meaning of barratry. In the case of Todd V. Ritchie, 1 Stark. R. 100, which was assumpsit on a policy of insurance, one count of the declaration alleged the loss to have arisen from the barratry of the master. It appeared, that after the vessel had loft Quebec with her homeward cargo on board, she sprung aleak, and the captain put into Gaspe, in the Gulf of St. Lawrence, and before any survey had taken place, he broke up her ceiling and end bows with crowbars, in consccjucnce of which the ship was much injured and weakened. This was done, it was suggested, in order to procure the condcmiiutinn of the vessel. Upon these facts Lord Kllenborough observed to the plaintiff's counsel : " In order to constitute barratry, which is a crime, the captain must be proved to have acted against his better ju Life of Sir W. Jones, p. 268. = Act of 30tli April, 1700. 3 Act of od 3Iarch, 1835, ch. 313, sect. 1. * U. S. V. Peterson, 1 W. & M. 305. In the case of U. S. v. Ahnida, Wharton's Criminal Law, 2d Ed. 818, Judge Kane said that, " the unlawful acts which now fall within the definition of a maritime revolt, are distributed by the language of this section (sect. 1, Act 1835), into four categories or classes. 1. Simple resistance to the exercise of the captain's authority. 2. The de- position of the captain from his command. 3. The transfer of the captain's power to a third person. 4. The usurpation of the cap- tain's power by the party accused. It is impossible to analyze the section as I have done, without remarking that the offences which it includes, however similar in character, differ widely in degree. The high act of unpremeditated resistance to the captain cannot be identified with his formal degradation from his command, still less with the usurpation of his station, without overlooking the OF OFFENCES COMMITTED AT SEA. 119 vessel has not cleared, but is lying at anchor in a navigable stream, where the tide ebbs and flows, the seamen on board are bound to obedience, and the Courts of the United States presumptively have jurisdiction over a revolt there, and will exercise it, if no evidence be offered as to the limits of the juris- diction of the State, and any exception on this ac- count is apparently waived.^ 97. If any seaman or other person commits man- slaughter upon the high seas; or confederates, or attempts, or endeavors, to compel any commander, master, officer, or mariner, to yield up, or run away with any ship or vessel, or with any goods, wares, or merchandise, or to turn pirate, or to go over to, or confederate with, pirates, or in anywise trade with any pirate, knowing him to be such, or furnish such i^irate with any ammunition, stores, or provi- sions of any kind, or fits out any vessel knowingly, gradations of crime, and confounding the accidental turbulence of a heated sailor with the deliberate and daring and triumphant con- spiracy of mutineers." In this case judgment was arrested, upon the ground that the indictment charged all the prisoners, simply and alike, with " making a revolt." "The party accused," said Judge Kane, ''is entitled to the most clear specification of his offence, that its character and circumstances reasonably admit of; and it cannot be said that he has had tliis, when a more direct de- scription is furnished in the very words of the Act under which he ia indicted." Sec also r. S. V. Forbes, Crabbc's 11. 558. A mere disobedience by one or two of the seamen, without combining with the others, or offensive or insolent language, is not a revolt. There mu.st bo either an actual or constructive 8u.spcnsion of the master's com- mand, to establish a revolt. « U. S. v. Staly, 1 W. <»c .M. .'5.38. 120 THE LATV OF SHIPPING. and ^v^th a design to trade with or supply, or corre- spond with, any pirate or robber, upon the seas ; or if any person or persons in any way consult, com- bine, confederate, or correspond with any pirate or robber upon the seas, knowing him to be guilty of any such piracy or roljbery ; or if any seaman con- fmes the master of any ship or other vessel, or en- deavors to make a revolt in such ship; such per- son or persons shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.' The offences of confining the master and endeavoring to commit a revolt, are now punished by fine not exceeding one thousand dollars, or by imprisonment not exceeding five years, or both, ac- cording to the nature and aggravation of the of- fence.^ 98. A confinement of the master, within the mean- ing of the statute, is not limited to mere personal restraint by seizing him and preventing the free movements of his body, nor to imprisonment in any specific place, as locking him in a state-room or cabin ; it is equally a confinement, within the statute, to prevent him from free movements about the ship by force, or intimidation, as by limiting him to walk- ing on a particular part of the deck by terror of bodily injury, or by present force; if he is sur- rounded, and prevented from moving where he pleases, according to his rights or duty as master, under threats of force, or if he is restrained from going to any part of the ship by an avowed determi- ' Act 1790, ch. 36, sec. 12. * Act of March 3, 1835, sec. 1. OF OFFENCES COMMITTED AT SEA. 121 nation of the crew, or of any part of tliem, to resist him, and to employ force adequate to prevent it, these fall within the meaning, of confinement.^ 99. If the person of the master is in fact seized, or if he is in fact held in personal restraint, whether for a long or short time is immaterial, it is a con- finement within the meaning of the statute ; and it subjects the party to punishment, unless he can es- tablish that it was done in justifiable self-defence, or for some other legal cause .^ If the master assault a seaman without cause, he may restrain the master with so much force, and so long as is necessary for this purpose. And if he is suddenly seized by the master, and without any intention of restraining him of his liberty, from the mere impulse of nature he takes hold of the master, to prevent any injury, for an instant only, and as soon as may be he with- draws the restraint, so that the act may be fairly deemed involuntary, it might not, perhaps, be deemed an offence within the Act, even though the seizing by the master was strictly justifiable; for the will must co-operate with the deed. But if the seizing by the master be justifiable, and he does not exceed the chastisement which he is by law entitled to in- flict, then the seaman cannot restrain him, but is bound to submit ; and if he does hold the master in ' U. 8. V. Ilomnicr, 4 Mason, lOG; U. 8. v. Suiitli, 3 Wash. C. C. R. 78. " U. S. V. Savage, 5 Mason, 400. A mere assault and battery cominittcd at soa liy a seaman upon bis commander, does not amount to a conGnement of the commander, nor fo an attempt to excite a revolt, witbiii the Act of Congress of Ainil .'i(>, 17IH), c. 9, s. 12; U. 8. V. Lawrence, 1 Crancb's C C 11. D4. 122 THE LAW OF siiirriNG. personal oonfmcment or restraint, it is an offence Avithin the statute.' 100. When the seamen combine and compel the master to return into port, upon the ground of the unseaworthiness of tlie vessel, it does not amount to an endeavor to commit a revolt, if they act hona fide and the ^•essel is actually unseaworthy, or if they act l)omifiile and upon reasonable grounds, and apparent unseaworthiness. Judge Story, in the case of U. S. V. Ashton,' added this qualification to the doctrine, namel}-, that in addition to honest motives, reason- able grounds, and apparent unseaworthiness, it must appear at the trial to be doubtful whether the vessel be unseaworthy or not. For if it should appear that the vessel actually was seaworthy, then the of- fence is committed, no matter how honest the motive or how apparently unseaworthy she might have been, when the seamen compelled the master to put into port. 101. "If the ship," he says, "was at the time clearly seaworthy and fit for the voyage, whether the seamen acted by fraud or mistake, or upon a fair but false judgment of the facts, it seems to me the offence was committed." Again he says : " Suppose the ship to be in that state in which the presump- tion of apparent unseaworthiness really arises, and the crew Ijrma fide act upon that presumption, and the Jury should be of opinion that they acted justi- fiably upon that presumption at the time ; and sup- ' U. S. V. Thompson, 1 Sum. 1G8, 172. « 2 Sum. 13. OF OFFENCES COMMITTED AT SEA. 123 pose upon the trial it should turn out that there is real doubt whether the ship be seaworthy or not ; or upon the evidence the case is nearly balanced in the conflict of credible as well as competent testimony, and the Jury should on the whole deem the prepon- derance of evidence just enough to turn the scale in favor of seaworthiness ; but not to place it entirely beyond doubt — I ask, whether, under such circum- stances, the crew ought to be convicted of the offence charged, having acted upon their best judgment fairly, and in a case where respectable, intelligent, and impartial witnesses should assert, that they should have done the same ; and when even the Jury themselves might adopt the same opinion, al- though there might be an error in the fact of sea- worthiness, as established at the trial — I have great dilTiculty in coming to the conclusion, that under such circumstances the crew were guilty of the of- fence charged."^ ' Lord Abingcr, in suramiug up to the Jury, in llegina v. M'Grogor, 1 Car. & K. 428, said, "By revolt, I understand some- thing like rebellion or resistance to lawful authority. Persons who rebel against and resi*t the constituted authorities, if they arc subjects, are said to be in a state of revolt; and if the crew of a ship combine together to resist the captain, especially if the object be to deprive him of his authority altogether, it will, in my opi- nion, amount to making a revolt. Revolt means something more than the disobedience of 011(1 man. You will say whether the con- duct of the crew, or some part of it, amounted, at any time, to a revolt, or, if not, whether these men l)y their conduct endeavored to stir up a revolt. I think it would be straining the evidence rather too far to say, that the conduct of -these men amounted to a revolt; and the charge of making a revolt, if my construction of the Act is correct, will fall tn the ground, and the (jucstion will be •upon the evidence, whether, by their conduct, they endeavored to 124 THE LAW OF SHIPPING. 102. The oflenoe of endeaYoring to commit a re- volt is a substantive oflence, and consists in the en- deavor of the crew of a vessel, or any one or more of tliom, to overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel, by assuming the government and navi- gation of her, or by transferring their obedience from the lawful commander to some other person.' When- ever b}' the overt acts of the crew, the authority of the master in the free navigation or management of the ship, or in the free exercise of his rights and duties on board, is entirely overthrown, and there is, intentionally caused by such acts, a suspension, ac- tual or constructive, of his power of command, it is a revolt of the crew. Direct, positive force upon the master is not essential ; positive constraint or im- prisonment of the master is not essential. A total refusal to perform any duty on board, until he has yielded to some illegal demand of the crew, when it has produced de facto a compliance, or a suspension of his power of command, is a revolt. And any act, or attempt, or combination to produce such a revolt, is an endeavor to make a revolt. These cases are not put as the only ones in which a revolt may exist. excite a revolt. The question of whether the ship was properly fitted up and found is not material, for it has been decided in a case in this Court, that, although there be real grievances to re- dress, yet it is not an answer to a charge of attempting to make a revolt." See Rex v. Hustings, 1 M. C. C. R. 82. His Lordship was also of opinion upon the construction of the Act of Parliament (11 & 12 Will. 3, c. 7, s. 0), that the resistance of one person to the authority of the captain would not be a revolt. ' 11 Wheat. R. 417, U. S. v. Kelly. OF OFFENCES COMMITTED AT SEA. 125 They are put merely as examples and illustrations of the doctrine/ 103. A mere act of disoloedience to a lawful com- mand of the officers, is not of itself an endeavor to create a revolt; but, to amount to the offence, it must be combined with an attempt to excite others of the crew to a general resistance or disobedience of orders, or a general neglect and refusal of duty.^ Perhaps, if the crew were to combine together to resist a single lawful order of the master, or to com- * U. S. V. Haines, 5 Mason, 27G, 277. This case has been thought to conflict with the doctrine laid down by the Supreme Court of the United States, in the case of U. S. v. Kelly, 11 Wheat. 417. But such was not the opinion of Judge Story. "It is supposed," he says, " that the case of U. S. v. Kelly, inculcates a different doctrine. If it does we are certainly bound by it. But I feel the utmost moral certainty that such was not the under- standing of the Court itself; and though there is some slight foun- dation in the language used in that opinion for the present argu- ment, a close examination of it will not justify the conclusion, that it is at variance with what we have now asserted as our own opi- nion. That case was brought before the Court for the mere pur- pose of ascertaining, whether, as the Act of Congress does not define the offence of endeavoring to make a revolt, it was compe- tent for a Court of law to give a judicial definition of the offence. There had been a doubt expressed elsewhere, whether it was not indispensable that Congress should have defined what a revolt was, before the Court could proceed to punish it ; and that doubt had been followed up by a decision, that such a definition by (Congress was indi.spon.sable, and that decision had led to an acquittal of the person cliargc-d with the offence. The point was brought to the Supreme Court for a final decision The Court look to the fact, wlictlier there is an overthrow of the master's authority, or a removal of him from his command, intended; aii Act U. S. 28tli Feb., 1803, ch. G2, bgc. 3. 9 loO THE L\^V OF siiirriNG. to the consul, vice-consul, commercial agent, or vice- commercial agent, the list of his ship's company, cert i Hod as aibresaicl, and to pay to such consul, vice-consul, commercial agent, or vice-commercial agent, for every seaman or mariner so discharged, beins: desisxnated on such list as a citizen of the United States, three months' pay, over and above the wages which may then be due to such mariner or seaman, two-thirds thereof to be paid by such consul or commercial agent to each seaman or mari- ner so discharged, upon his engagement on board of any vessel to return to the United States, and the other remaining third to be retained for the purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, who may be desirous of returning to the United States, and for the maintenance of American seamen who may be destitute, and may be in such foreign port ; and the several sums retained for such fund, shall be accounted for with the Treasury, every six months, by the persons receiving the same." 108. This statute applies only to the case of a voluntary sale of the vessel, and to a strictly volun- tary discharge of a mariner, and not to a sale or dis- charge, rendered unavoidable by an imperious and overruling necessity. A sale is, within the mercan-'' tile and reasonable sense of the word, necessary when the vessel cannot be repaired but at a great sacrifice of the interests of the owners. And when a voyage is broken up for such cause, the seamen are not properly discharged, but the whole enter- prise is brought to a premature conclusion by a for- OF THE DISCHARGE OF SEAMEN. 131 tuitous event, for which neither party is respon- sible/ 109. But if the damage is not of so grave a cha- racter but that the vessel may well be repaired within a reasonable time, and at a reasonable ex- pense, the case will not be withdrawn from the statute because the owner or master happens to meet with an opportunity of disposing of her on advan- tageous terms, and making a better speculation by the sale than by repairing and continuing the voy- age.^ In the case of capture, where the seamen • The Dawn, Ware's R. 485; S. C. Davies' R. 121. * The Juniata, Gilpin's R. 193 ; The Dawn, sujva. In the case of The Juniata, Judge Hopkinson observed, that " if the ne- cessity of a discharge can ever afford a legal reason for the sea- men not being paid, it must at all events be necessity of the most urgent kind; not such as will enable a merchant, desirous of changing his voyage, to get rid of his seamen without expense. He must have no option. Ilis vessel must be a wreck. If he can repair her, he must do so ; or if he does not choose, he must pro- vide for his seamen, who are thrown ashore destitute, by a contrary determination. If he is bound, as he undoubtedly is, when his vessel is damaged, to send on the cargo to its place of destination, so is he bound to provide, in the manner the law has pointed out, for the future welfare of his crew, with whom his contract has been suddenly broken. But docs the law admit even the ab- solute necessity of abandoning the voyage, to be a ground for dis- charging the seamen without any future provision? A previous section sccins to designate tlic only circumstances under which a captain is allowed to leave a seaman, without such provision, in a foreign country, and they arc when he dies, absconds, or is forci- bly impressed into other service. It does not include the aban- donment of the voyage, oven when caused liy necessity, because it was intended that a provision for sufh an event should always bo made. The owner is to calculate for it exactly as for the other 132 THE LAW OF SHIPPING. remain hy the vessel and await the resnlt of the prize proceedings, if she is released and able to proceed on the voyage, bnt the crew are discharged, they are •ntitlcd to the three months' pay provided by the statnte.' The Act applies as well to a voluntary e expenses of his voyage; it is as much a part of them as are the wa"es stated in the shipping articles. It is not to be regarded as a penalty for a default, but a contribution incident to navigation." In the case of Luscomb v. Osgood, 7 Law Rep. 132, a minor, vrithout the knowledge of his father, concealed himself on board a whaling vessel before she sailed from Salem, and was not disco- vered by the master until she had dismissed her pilot. When about a month out, the master stopped at Fayal, where there was an American consul, but said nothing to him about the boy. The boy performed the duty of a seaman during the whole voyage, and when eighteen months out, signed the shipping articles. It was held, that the father of the boy was entitled to wages from the time the ship sailed from Fayal. The master might have left him with the consul without paying three months' wages, as in case of a seaman discharged in a foreign port, and as required by the Act of 1803, supra. In such a case, it would have been the duty of the consul to provide for and send him to the United States. » The Saratoga, 2 Gallis. K. 1G4. " The question of eventual loss upon repairing and proceeding on the voyage, is, I apprehend," said Judge Ware, in the case of The Dawn, Ware's R., supra, " to be viewed in relation to the party who is ultimately to bear it. If the owner is highly insured, he may think it for his interest to abandon and sell the vessel and convert a partial into a total loss, when, if he were uninsured, he might find his interest would be best served by repairing her and proceeding on the voyage. In such a case it appears to me, that if the owner, or the master for him, chooses to sell as the easiest way of extricating him from the disaster by shifting the loss or a part of it upon the underwriters, it must be considered as a voluntary sale, and the seamen entitled to their two months' wages. These are calculations in which the interest the seamen have in prosecuting the voyage and earning their wages, are not taken into the account. The master looks solely to the interests of the owner." OF THE DISCHARGE OF SEAMEN. 133 sale of the vessel for some reason occurring after the voyage has begun, as to a case where the original object of the voyage was a sale of the vessel abroad. 110. It should be here observed, that although the Act of Congress declares that the three months' wages shall be paid by the master, and to the con- sul ; yet, if they are not so paid, and the master has returned, they may be recovered here from the owner, by a libel in the Admiralty, and the Court will order them to be distributed to the United States and the seamen, in the proportion directed by the statute. 111. It would certainly seem, that not only the terms of the law, but the objects to be attained by it, to wit, the return of American seamen to their country, and their maintenance when found desti- tute in a foreign port, all require that this money should be paid to the consul in the foreign port where the seaman is discharged, and that no other payment or oljligation to pay is recognised or created by the Act. But upon the ground that the wages would be entirely lost, and the law violated with im- punity, were such a construction of the Act to be adopted, the Courts have enforced tlie payment of the wages licre, when the master lias refused or omitted to i)ay them abroad.' ' Emorson v. TTowland, 1 Mason, 45; Orno v. Townsend, 4 Mason, 541 ; The Saratoga, 2 Gallis. 181 ; The Dawn, Ware's R. 485; but see contra Ogden v. Orr, 12 John's It. li;{ ; The .Juni- ata, Gilpin's II. 198, In this latter case, JuJgc llojikinson felt himself compelled, in deference to the opinion of Judge Story, in 134 THE LAW OF SIIIPriNG. 112. The Act of 1840/ without directly repealing any of the provisions of the Act of 1803, has very Onio V. Townscnd, supra, to secure a payment of the wages, but bis own opinion was, that the Act of Congress did not require or permit the payment to be made elsewhere than to the consul at the port of discharge. See also Knowlton v. Boss, 12 Law Hep. 13. It was observed by Judge Sprague, in this case, that the payment of two months' additional wages for discharge in a foreign port, under the Act of 1803, is enforced in Admiralty; ''but this," he proceeds to say, ' Tbid. United States v. lluggles, 5 Mason, 192 ; Phillips's case, 1 Moody, Crown Cas. 264, 273. " IJy 'maliciously,' in the intendment of tlie statute," said Judge Story, in T. S. v. llug- gles, xupni, " is not merely meant a wicked, malignant, and revengeful act, such as in cases of murder, constitutes malice, and 142 THE LAW OF SHIPPING. 121. The master lias a right, under the general maritime law, to discharge a seaman in a foreign port, lint it must be done for a sufficient cause. It must be some offence of a high and aggravated cha- racter, or long and habitual disregard of duty, or other continued misconduct, unrepented of and un- changed. But the laws of the United States, from motives of an enlarged policy, have circumscribed the authority of the master in cases of discharge within much more narrow bounds. His right, under these laws, can result only from what may be deemed a moral necessity, analogous to the cases put in the Act of 1803.^ Certainly, he would be justified in discharging a seaman, if his presence on board would jeopard the safety of the officers, or crew, or the due performance of the voyage, or the regular enforce- ment of the ship's discipline.^ And whenever the misconduct has been such as to render the dis- charge of the seaman imperatively necessary for the safety of the ship, and the due preservation of disci- which flows from a heart regardless of social duty, and fatally bent on mischief. But if the act be wantonly done, that is, with a wilful disregard of right or duty, it is, in the sense of the statute, malicious. It must be a wilful act, done contrary to a man's own convictions of duty. If, therefore, the defendant did the act from good motives, and under a mistaken sense of duty, and not from a spirit of hatred, or with an intention to oppress, then he ought to be acquitted, notwithstanding the want of justifiable cause. But if he did the act contrary to his own sense of duty, as a mere exercise of power, without any sense of its being right, then it was ' maliciously' done in the sense of the statute." » U. S. V. Coffin, 1 Sum. R. 394. Act of 1803, ch. G2, sees. 1,3. ' Ibid. OF THE DISCHARGE OF SEAMEN". 143 pline, the discharge operates a forfeiture of the wages. ^ 122. The cases stated in which a master is permitted to discharge a seaman, are, when he is incorrigibly disobedient, and will not submit to do his duty, or if he is mutinous and rebellious, and persists in such conduct, or is guilty of gross mis- conduct, or dishonesty, as embezzlement or theft, or if he is an habitual drunkard, and a stirrer up of quarrels and broils, to the destruction of the disci- pline of the crew ; or, by his own fault, renders him- self incapable of performing his duty.^ In short, > The Blake, 1 W. Rob. R. 75 j Smith v. Treat, Davies' R. 2GG. It was held in this latter case, that the arrest and imprison- ment of a seaman in a foreign port, and sending him home by the public authority as a prisoner charged with an indictable offence, does not necessarily constitute a bar to a claim for wages for the voyage. Such proceedings do not preclude the Court from inquir- ing into the merits of the case, and making such a decree as the justice of the case requires. The simple fact that a seaman is arrested and sent home as a prisoner, docs not prove him guilty of the offence with which he is charged. It may turn out upon in- vestigation that there was no offence committed, no imperative necessity for his arrest, either for the safety of the ship, or the preservation of discipline ; and consequently no forfeiture of wages. 2 Hutchinson v. Coombs, Ware's R. G5 ; Thorne v. White, 1 Peters' Ad. R. 175 ; Relf v. The Maria, Ibid. 186 ; Rlack v. The Louisiana, 2 Ibid. 2G2; Jjaws of Oleron, art. G-13 ; Cleirac, 51, 52 ; Con.sulat do la Mer, ch. 2G7 ; Laws of the Ilanse Towns, 29, 45; Laws of Wisbury, IS, edit, of Cleirac j Smith v. Treat, Davies R. 2GG. Judge Ware, in this case, delivered a very able and interesting opinion. "Generally speaking," he observed, "the causes which justify the master in discharging a seaman before the termination of the voyage, and especially in a foreign port, arc such as amount to a di.squaliiicatiou, and show him to be unfit for 144 THE LATV OF SHIPPING. when his conduct is of such a character as shows that he is an unsafe or unfit man to have on board, he may be discharged. Ordinaril}^, however, the hiw will not justify the master in dismissing a sea- man for a single oflence, unless it be of a high and aggravated character, implying a deep degree of moral turpitude, or a dangerous and ungovernable temper or disposition. It looks on occasional offences and outbreaks of passion, not so frequent as to be- come habits, with indulgence, and by maritime Courts it is administered with levity and a due regard to the character and habits of the subjects to whom it applies.' the service he has engaged for, or unfit to be trusted in the vessel. They are, mutinous and rebellious conduct, persevered in, gross dishonesty, or embezzlement, or theft, or habitual drunkenness, or ^vhcre the seaman is habitually a stirrer up of quarrels, to the destruction of the vessel and the discipline of the crew." See also Bee's R. 148, 184; The Lady Campbell, 2 Ilagg. Ad. R. 5; The Vibilia, Ibid. 228 ; Townsend v. Orne, 4 Mason, 541 ; The Ship Mentor, Ibid. 84 ; Buck v. Lane, 12 S. & R. 266 ; Atkyns V. Burrows, 1 Peters' Adm. 244 ; The Nimrod, Ware's R. 9. ' Smith v. Treat, supra. " In the American Courts, the right of the master to discharge a seaman for misbehavior, has been often recognised. But the right is (jualitied by many limitations. He has not a right to discharge him for trifling, or venial oflFences, or in the mere exercise of his own discretion. There must be mis- behavior of a gross and aggravated nature to justify a discharge; otherwise the master and owners will be liable in damages. Judge Peters has held, that if a seaman is incorrigibly mutinous and dis- obedient, persisting in his misconduct; if he is guilty of gross crimes and dishonesty ; if he is an habitual drunkard, and purloins the ship's stores; in these and the like cases, he may be discharged. But if his offence is but temporary and fugacious ; if he is repent- ant and willing to return to duty; then the master has no right to dismi.ss him." Story's Abbott, p. 263. OF THE DISCHARGE OF SEAMEN. 145 123. It is not the simple averment by the master that the seaman was a dangerous man, that will in- duce a Court of Admiralty to sanction his discharge. When he assigns this, in a Court of justice, as a rea- son for setting aside the obligation of a contract, it is the duty of the Court to look into the grounds of his apprehension. It is not the vain fear, liominis cujusdam meticidosi, that will justify the master in dissolving the contract. It must be such fear as may be supposed to affect the mind of a man of or- dinary firmness. 1 The law is accommodated to the character of the sailor, and ordinarily, even in ag- gravated cases, if he repents and returns to his duty, the master is bound to receive him on board again.^ "Even in cases of aggravated offences," says Mr. Curtis,^ " or of a continued course of conduct which would justify the discharge of a seaman, if he re- pents and offers amends, the principle which is always operative in his favor against all kinds of forfeiture, with very rare exceptions, intervenes to restore him to his rights, and he is ordinarily en- titled to be received again on board. To deprive a mariner of the benefit of this rule, it should appear that the misconduct amounts to a radical (Usqualiji- caiion, as dislionesty and haljitual drunkenness in a steward ; or that the party is really dangerous to the peace and safety of the ship." 124. It may be superfluous to add, that if the master improperly discharges a seaman, he and the » The Nimrorl, Ware's R. 9. " Ibid. ' McrcbiiDt Seamen, p. 150. 10 146 THE LAAV OF SHIPPING. owner become responsible for damages.^ The mea- sure of damages in such a case is actual compensa- tion ibr the injury, according to the circumstances. The amount of damages is neither to be determined by the amount of wages which would be due, com- puted to the successful termination of the voyage, nor computed to the time of his own return to his country, but should be an indemnity for the actual injury sustained by the breach of the contract.* Judge Ware subscribed to this doctrine, in the case of Hutchinson v. Coombs, and decreed wages for the 1 Johnson v. Dalton, 1 Cowen's R. 543 ; Atkyns v. Burrows, 1 Peters' Adm. R. 244 ; Halle v. Heightman, 2 East's R. 145 ; Hutchinson v. Coombs, Ware's R. 65. " Emerson v. Howland, 1 Mason's R. 45. The reader will find the authorities upon the point discussed in the test, collected in Flanders' Maritime Law, p. 377. It is there laid down, " that if a seaman is wrongfully discharged during a voyage, he is entitled to a compensation for the injury, according to the circumstances of his own particular case. This is ordinarily measured by the loss of time and the expenses of his return to the country where he was originally shipped. In some cases wages have been allowed up to the prosperous termination of the voyage, and in others up to the time of the seaman's return to the country Avhere he was originally shipped, without reference to the termination of the voyage. If the seaman has obtained employment in the mean time, his earnings are deducted, not from his wages, but from the expenses of his return. If, in addition to the wrongful discharge, the master detains the seaman's clothing, he may recover the value of it in the common libel for his wages." But see contra, Abbott on Shipp. 733 ; Tlie Elizabeth, 2 Dods. Adm. R. 403. " Nothing," said Lord Stowell in this case, " can be more generally or more peremptorily laid down, than that a master discharging a seaman wrongfully is answerable for the whole wages of the voyage of that ship." The rule of American Law is clearly the opposite of this, and stands upon grounds of substantial equity. OF THE MATE AND IXFERIOR OFFICERS. 147 whole voyage as the measure of damage in that case. He also held, that the intermediate earnings of the seaman were to be deducted, not from his wages, but from the expenses of his return. 125. It will be seen, by reference to the Act of 1803, that the consul's certificate that a seaman was discharged w^th his approbation, will be a sufficient defence to an action for the penalty of the master's bond to the government, but it is not a sufficient defence to an action by the seaman for damages. The Court will go behind the certificate and inquire into the cause of the discharge, and award damages, if the circumstances of the particular case render it proper.' II. OF THE MATE AND INFERIOR OFFICERS. 12G. The authority of the master extends over the mate and the other officers of the ship, and he may discharge them abroad for adequate cause, as well as the common mariners. But it can only be done in a clear case, and on good grounds. Abso- lute necessity almost is required to justify the mea- sure. At first blush it may seem that officers do not present so strong a title to the indulgence and favorable attention of a Court of Admiralty as com- mon mariners; who are, from their ignorance and helpless state, placed in a peculiar mauuer under its tender protection. IJiit there are other grounds on which officers are justly objects of equal attention, inasmuch as an injury done to their character is of ' Hutchinson v. Coombs, Ware's R. 65. 14S THE LAAV OF SniPTING. wider extent, and attended with consequences of a more serious nature. Mariners, if distressed in one service, may easily obtain another, and a sailor may remain a sailor to the end of his days, as it is not usual to be minute in the inquiry made into their characters. But if an officer is discharged for insuf- ficiency, it may not be easy for him to procure another situation ; and he is in danger of losing, not only his present footing, but more particularly those prospects of promotion, which depend in a great mea- sure on the character that has travelled along with him during his former employs, and has been the most valuable fruit of a life of service. These con- siderations are sufficient to place officers also under the particular protection of the Court. It must not be understood, however, that such a blind indul- gence will be shown as to overrule the real justice of the case. It is only such an indulgence as the equitable considerations of public utility require, which can seldom in such cases, any more than in others, be separated from particular justice.* * Galloway v. Morris, 3 Yates, K. 445 ; The Ship Exeter, 2 Rob. Ad. R. 261 ; Atkyns v. Burrows, 1 Peters' Ad. R. 246. " When I first came into this Court," observed Judge Peters, in this case, " I found it taken for granted that the captain had a legal right to displace the mate for just cause. I have seen re- peated instances where the exercise of this power was necessary for the safety of the ship ; and I have examined into many cases wherein it had been executed from arbitrary, capricious, and im- proper motives. It is established by the maritime laws, and so it ought to be, that the captain must be supreme in the ship. His lawful orders must be obeyed. But when a contract is in ques- tion, the law, by its proper Courts, will see that it is not vacated for any other than legal, reasonable, and necessary causes. The Courts will control and examine the powers and conduct of the OF THE MATE AND INFERIOR OFFICERS. 149 127. It Avas Scaid by Lord Stowell in the case of The Exeter, which is cited in the margin, that in a matter so tender as the discharge of an officer, the master ought to call the attention of the passengers and crew to the circumstances attending it, that the propriety of the act may he properly warranted and master. He is authorized to give all commands for the naviga- ting, government, and safety of the ship ; but he has no authority to nullify a contract at his will, or for light and trifling causes. A contract is a solemn engagement, not to be vacated without the consent of all parties, or on considerations on which the law must decide through the tribunals established to make such decisions." The mate in this case had not been discharged abroad, but dis- placed and turned before the mast, on the ground of gross negli- gence. The Court held that he had been illegally displaced, that he was entitled to wages agreeably to his original contract as mate, and that if any loss had accrued, on account of his being unlaw- fully displaced, the master must answer. Being displaced for in- sufficient cause, the mate could maintain an action for the breach of his contract, and recover damages according to the circum- stances. Judge Peters, in his opinion, which deserves attention, assigned the causes for which a mate may be degraded. " He may forfeit his right to command and wages," he says, "by fraudulent, un- faithful, and illegal practices ; by gross and repeated negligence, or flagrant, wilful, and unjustifiable disobedience; by incapacity, brought on him by his own fault, to perform his duty, or palpable want of skill in his profession." The rules here laid down were acceded to by Judge Washington, in the case of Thompson v. Bu.sch, 4 Wash. C. (!. R. 3:^S. The relative duties of the inferior officers and seamen to the master, and of the master to them, arc defined in a libirnl and ('((uitable spirit, and with great precision in that ca.sc. If Judge Wasliington did not possess those accumu- lated stores of legal and various learning, which were the orna- ment and distinction of some of his contemporaries, he anii)ly atoned for any want of tlicm by the justice of liis views, the patient industry of his habits, and the accuracy and impartiality of his judgment. 150 THE LATV OF RlITrriNG. vouched hy as much evidence as possible. When a mate or other inferior officer is disrated, as he may be for incapacity, and other causes stated by Jud"-e Teters in the case of Atkyns v. Burrows, which are cited at length in the marginal note, he does not thereby become a quasi passenger, and therefore exempt from the performance of other duty. He cannot by his own misrepresentation as to his qualifications deprive the ship of the services of an important officer, and by making her short- handed, increase the hazard and add to the labors of all others, w^hile he eats the bread of idleness, and is only an incumbrance on the sliip.^ 128. The mate is a respectable officer in the ship, and generally chosen with the consent of the owners. He is under the orders of the master in his ordinary duty; but his contract is not subject to arbitrary control. If displaced, it must be for causes evident, strong and legally important.' There is an implied warranty in the mariner's contract, that the party is competent in knowledge and bodily health to the » Morris v. Cornell, 6 Law Rep. 304. "I have no doubt," ob- served Judge Sprague, "that Morris (the libellant), when he shipped, thought he should be able to perform the duties of second mate. I acfiuit him of all designed deception. Still it was obli- gatory on him to know his qualiGcations, and if in fact found to be unfit for a portion of his duties, he was still bound to have per- formed others. In refusing all duty, therefore, he was wrong, and set an example of insubordination and disobedience, which the master had a right to punish. He had a right to coerce him to submission." " Atkyns v. Burrows, svpra. The Ship Orozimbo, 1 Peters' Ad. R. 250 ; Wood v. The Nimrod, Gilpin's R. 83. OF THE MATE AND INFERIOR OFFICERS. 151 station for which he contracts. If he contracts for a particular service or duty on board a vessel he engages both for fidelity in the performance of that duty, and for that capacity and those qualities which will enable him to perform the service in a satisfac- tory manner. If the master finds, upon trial, that there is on the part of the mate either a want of fidelity or a want of capacity which disqualifies for the service, he will be justified in putting him upon a different duty. This, however, cannot be done capriciously. There must be reasonable and legal cause. When such cause exists, the master will be justified, not in refusing altogether to pay him wages, but in making from them a reasonable deduction.^ 129. When, however, the master is acquainted with the capacity and state of health of the party, he makes the engagement under a knowledge of the true state of his nautical abilities and deficiencies. There is no fraud or imposition practised. The master has contracted for imperfect service, and he must be content with it. True, if the necessities of the ship demand that the party should be displaced, the master is authorized to displace him. The exi- gency of the case is his justification. But he would have no right, I apprehend, either to deny him the ' Wor.(l V. TL(! Nimrod, Gilpin's K. S.3; Sherwood v. M'Intosh, Ware's K. 101); (Jurtis's .Mereliaut Seainon, 20; The Richmond, 2 Peters' Ad. II. 2 ('>.*] ; Forbes v. I'arsons, Crabbe's II. 2S;{. It was hehl liy Judfre Hopkirison, in this case, that when a party ships for a particulrir cniploynicnt, and either will not or cannot perform its duties, if his deficiencies arise from wilfulness or o])stina(;y, ho is a fit object for punishment ; if from incapacity, he is entitled to no particular favor of the Court. 152 THE LAAV OF SIIIPriNG. stipulated wages, or to put liini upon other service. It would be violative of the most obvious principles of justice and fair dealing to permit a master to con- tract with a seaman for a particular service, knowing his incapacity to perform it, and then, having the man in his power, to put him to the performance of other duties, for which he did not contract, and for which, perhaps, originally, he would not have con- tracted. Such a doctrine would enable a master, under pretence of employing them in one service, but with the intention of employing them upon an- other, to inveigle men on board his ship, to get in- directly service which he could not perhaps obtain directly.' 130. If one ships as an officer or mariner, and re- presents himself as an able-bodied seaman, and it turns out that he was affected with a fatal disease, of Avliich he dies during the voyage, his administrator has no claim for wages. It was a fraud on his part to have represented himself as able-bodied, and there- fore no foundation for a claim of wages is laid.^ Temporary appointments made by the master on an emergency, such as the appointment of a common sailor to the position of mate, stands on a very dif- ferent footing from that of a mate originally shipping as such ; making his contract for the office, and for the wages belonging to it. Such appointments are held at the master's pleasure. They are mere ex- periments, of the success of which he is to judge.^ If the seaman, placed in the position of mate, per- ' The Ship Orozimbo, 1 Peters' Ad. R. 250. * The Kichmond, supra. ' The Niinrod, Gilpin's R. 83. OF THE MATE AND INFERIOR OFFICERS. 153 forms the duties attached to that office, he will be entitled to the wages of a mate. K he fails to per- form them, and is remitted to his original post, he cannot, it seems, recover mate's wages during the time he was on trial. ^ 131. When the master dismisses or disrates the mate or other officers, or the mariners, and an action is brought against the owners for the stipulated wages of such dismissed or disrated officer or mari- ner, the master is not a competent witness without a release from the owners.^ The reason assigned for his exclusion by Judge Peters, in the case of Malone V. The Brig Mary,^ was, that the master is interested in the result, though not immediately; that if a decree passes against the seaman in a procedure in rem, or against the owner, it may be given in evi- dence to repel a suit against the master. But in Johnson v. Huckins,^ where the competency of the master as a Avitness against a mariner, in a suit for wages, brought by him against the ship or owners, came in question, he was admitted de hene esse. The point, however, was not definitively settled. But Judge Sprague denied the reason for exclusion given by Judge Peters, as above stated, that a decree against the seaman in a suit against the owner, could be given in evidence to repel a suit against the master. ' The Nimrofl, Oilpin'fl R. 83. " The Ship Kxcti-r, 2 Kob. A<1. II. 201 j Galloway v. Morris, 3 Yates' 11. 44.') J Malone v. The IJrig Mary, 1 Peters' Ad. It. 139. > 1 Peters' Ad. 11. 130, supra. « G Law Rep. 311. 154 THE LAW OF siripriNG. 132. Upon the death or sickness of the master, or from any otlier canse that renders him incapable of having the command, the mate succeeds to his place virtute officii, by mere operation of law. The law throws this duty and obligation upon him ; he acts in the stead of the master, in all cases where the lat- ter is dead or absent, or incapable, as from insanity.' It is the doctrine of the cases, however, that a mate succeeding to the command of the ship, does not in consequence lose his character as mate. He is ac- countable only for his own transactions. If put on shore from sickness, for the convenience of the ship, his expenses for medicine, advice, attendance, and board, are to be borne by the ship-owner. Acting 'The Brig George, 1 Sum. R. 151; Orne v. Townsend, 4 Mason's 11. 541; Pray v. Stinson, 21 Maine, 402; 2 Sum. 584; Copeland v. New England Marine Ins. Co., 2 Met. 11. 432; The Favorite, 2 Rob. R. 232 ; Read v. Chapman, 2 Strange R. 937. It is assumed by these cases, that the mate, in succeeding to the office of master, does not thereby cease to be mate ; that he is not master, but quasi master, jji-o hac vice. That he succeeds as Jiasres necessarius to the employment of the master, in a case of necessity. We have ventured elsewhere to express the opinion, that while the mate, by appointment of law, is clothed with all the powers and responsibilities of master, is acting in his place and stead, he is pro tempore master, subject to the liabilities, and entitled to the privileges, that belong to that position. In other words, that he is not mate for one purpose, and quasi master for another. The office being imposed upon him by the law, he is not burdened with the obligations of his predecessor; that is to say, his duties and obligations have their inception from the moment he assumes the command. He is not liable, for example, for the sea- men's wages, as a substituted master is. The law docs not impose upon him personal liability for contracts made by another, but holds him accountable for the performance of every duty con- nected with the post, after he has assumed it. OF THE MATE AND INFERIOR OFFICERS. 155 as master, lie is entitled to an additional compensa- tion therefor, which he may recover by a libel in the Admiralty.^ 133. Liable, therefore, as the mate is, to have the command and navigation of the vessel thrown upon him, the law imposes it as a duty upon the owners, to see that a competent person fills that post. He must be qualified in point of general capacity for the office of master. He must be completely skilled in theoretic and practical navigation, and general sea- manship, for the duty of taking command in case of exigency. And it has been held, that a vessel can- not be deemed seaworthy, which has not on board some person capable of navigating her, besides the master.^ This doctrine, however, in all its extent, has not commanded universal approval. It stands opposed by the great authority of Chancellor Kent, as well as the opinions of Prof. Greenleaf, and Sir J. Campbell. " There is not an instance," says Chan- cellor Kent, " in all the infinite and vexatious dis- cussions in maritime insurance cases in the Courts within the United States, in which such a stern con- struction of the warranty of seaworthiness has been stated or suggested." This was said, however, before the decision in the case of Copeland v. New England Marine Ins. ('o., wliere the doctrine of Lord Tenter- ' See the cases cited, mpra. The mate, acting as master, is in- trusted with the government and management of the ercw, and if ho wrongfully discharges a seaman, the owners arc liable. Orno V. Townscnd, supra. » Copeland v. New England Marine Ins. Co., 2 Mctealf, 432 j Clifford V. Hunter, .'I Car. i^ V. IH. 156 THE LAW OF SHIPPING. dcii, in Cliflbrd v. Iliintor, was expressly recognised. Prof. Greenleaf, and Sir J. Campbell, did not take sncli strong ground against the rule as Chancellor Kent, but were of opinion, that while there is not any fixed rule of law which makes it necessary that the mate should be a navigator, capable of keeping the ship's reckoning, in all cases, be the voyage what it may, it was nevertheless a question of fact for the jury upon the circumstances and nature of the par- ticular voyage/ This limitation of the doctrine, would conserve the rights of all parties. " To place our American coasting, and West India voyages, within the discipline of Lord Tenterden's rule," says Chancellor Kent, in the opinion above referred to, " would be monstrous. It would destroy a large ma- jority of all the policies effected on that trade within the last thirty years, in our American insurance offices, and which is generally carried on in small vessels, such as sloops, schooners, brigs, &c." That such consequences might follow from the adoption of Lord Tenterden's doctrine, as an inflexible rule, ap- plicable to all voyages, furnishes a strong reason in favor of the limitation of it, which we have men- tioned. 134. Having said thus much of the powers and duties of the mate, it remains to observe, that one of the most important duties devolved upon him, is, that he should exercise great vigilance and atten- tion for the preservation of the cargo against attempts > Vide the opinions of those gentlemen given in a case which arose in Canada some twelve years since, in the Law Hep., vol. 1, 257. OF SICK AND DISABLED MARINERS. 157 at robbery or embezzlements. He is not by any means responsible for all the robberies committed on board the vessel. He is bound to exercise due care, vigilance and caution ; but if, notwithstanding, em- bezzlement occurs without his knowledge or partici- pation, he is not responsible.^ Many of his duties depend on usage, which furnishes the rule of law. By usage, it belongs to the mate to superintend the receiving, and storing, and delivery of the cargo. By usage, it is his duty to keep the log-book, wherein should be kept a minute and faithful history of the voyage. Responsible to the master for the propriety of his commands, he may nevertheless give orders to the crew, which they are bound to obey. They are bound to obey, because otherwise it would be impos- sible for him to superintend the sailing of the vessel, which is his peculiar function, acting, however, in that capacity, as in others, as the representative and aid of the master. But the mate has no power, when the master is on board, to inflict punishment upon a sailor, unless in a case of absolute necessity, to enforce the performance of duty.^ III. OF THE ACTS FOR THE RELIEF OF SICK AND DISABLED MARINERS. 135. The Acts of Congress respecting hospital money, and the relief of sick and disabled seamen, ' The Duchess of Kent, 1 W. Rob. Ad. R. 285. ■ Curtis's Merchant Seamen, 94, 100 j Jacobson's Sea Laws, Book 2, eh. 2 ; Thompson v. Ruseh, 4 Wawhington, C C. R. X^>^ ; Thomas v. Lane, 2 Sum. R. 1 ; U. S. v. Taylor, Id. 584; IJutlcr V. M'Lrllan, Ware's R. 210; Wilson v. The Bclvidcrc, 1 Peters' Ad. R. 258. 158 THE LATT OF SniPPING. provide suitable means for the relief of seamen in the home ports ; and may be deemed auxiliary to the maritime law. They reach cases where the ma- ritime law gives no relief; and are far different in their scope and operation from mere cases of injuries and sickness, while in the ship's service, which are considered in another chapter. They are founded upon the great national policy of providing means for the relief of seamen, who are sick and disabled, b}' withdrawing a small fund, from time to time, from their maritime earnings. They compel seamen to contribute somewhat in the day of their prosperity towards their own relief, when sickness and casual- ties overtake and crip])le them.^ 136. The Act of ITOS^ provides, that the master, or owner, of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall pay to the Collector, at the rate of twenty cents per month, out of his wages, for every seaman employed on board of the vessel, since she was last entered at any port of the United States. Another section extends the like provision to vessels engaged in the coasting trade. By the same Act, > Reed V. Canfield, 1 Sum. R. 200. 2 Chap. 04. By the Act of March 1, 1843, the provisions and penalties of the Act of 16th July, 1798, entitled an Act for the relief of sick and disabled seamen, be and the same hereby are extended to the masters and owners, and seamen of registered ves- sels, employed in carrying on the coasting trade; and the Secre- tary of the Treasury is authorized and directed to issue such instructions to the Collectors of the various ports as shall secure the collection of hospital money from said seamen, masters, and owners. OF SICK AND DISABLED MARINERS. 159 the President of the United States is authorized, out of the funds so raised, to provide for the temporary rehef and maintenance of sick and disabled seamen in the hospitals, or other institutions, now established in the ports of the United States; or, in ports where no such institutions exist, in such other manner as he shall direct; provided, that the moneys collected in any one district, shall be expended within the same. And the surplus is reserved as a fund for the erection of hospitals for the accommodation of sick and disabled seamen.^ 137. It seems that the Acts of Congress, for "the relief and maintenance of sick and disabled seamen," have been practically construed not to impose upon ships and vessels in the whale and other fisheries, the payment of hospital money ; and it is most natural to presume, under such circumstances, that Congress intended the benefit for those who were to bear the burden. Upon this point, in the case of Reed v. Canfield, Judge Story declined to give any opinion, lie said, however, that it certainly was questionable, whether all seamen whatsoever (and whalemen and fishermen are seamen in the sense of the marine law), are not within the scope of the Acts ; and if they are, no executive instructions can lawfully narrow them. ' Ibid. Ilccd V. Canfield, sujyra. 160 CHAPTER VI. OF THE MASTER'S AUTHORITY AS TO THE EMPLOY- MENT OF THE SHIP. 138. Having treated in the previous chapters of the qualifications, hiring, discipline, and discharge of seamen, and of the laws for their protection, secu- rity, and relief, we are naturally led in the progress of our subject to consider the powers and duties of the master with respect to the ship and cargo, and his relation to the ship-owner and the freighter of goods. The first step towards this end will be to trace the power of the master as to the employment of the ship. 139. It is the established law of commercial states, that the owners of a trading ship are bound to the performance of every lawful contract made by the master, relative to the usual employment of the ship. The course of usual employment is evidence of authority given by the owners to the master to make for them and on their behalf, a contract re- lating to such employment ; and therefore a contract so made by him, the law esteems to have been made by them. At the same time, it must be understood, EMPLOTMEXT OF THE SHIP. 161 that the master is answerable for his own contract. The law gives the merchant a twofold remedy agrainst the owner and the master/ 140. Under his general anthority, the master has a right to charter the vessel in a foreign port, the owner having no agent there, and perhaps in a domestic port, if at a distance from the place of the owner's residence, and the means of communication are difficult.^ It is well settled, however, that the ' Abbott on Shipping, p. 157. "It is true," says this author, " that the master also is answerable for his own contract ; for in favor of commerce the 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 twofold remedy against the one or the other. But in pursuing this remedy, care must be taken to de- scribe the defendant according to his real character. For in an action at law, brought against a person as master, at the trial whereof it appeared upon the proof that the defendant was not master, but owner, the plaintiff failed in his suit. This rule of the law of England agrees with the law of other commercial nations. When the Romans began to engage in commerce, a new species of action under a particular name appears to have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants ; and by the Praetorian edict, the owners, or (to render the Latin word more nearly) the employers of the ship, are made responsible for the faults of the mariners and master, and for the contracts also of the master; but not for the contracts of the mariners, because the mariners are not appointed for the purpose of conducting the business of the ship, but only of labor- ing in its navigation under the orders of the master." See the Dig. lib. 14, tit. 1. a Hurry v. Ifuny, 2 Wa.sh. V. C. R. 145; jVIurfreev. Redding, 1 Ilayw. R. 270. Sec also as to the power of the master to make contracts, TJcrncn v. Cockran, Rce's Adni. R. 200 ; Emory v. Ilcr- Bcy, 4 (Jrccnlcaf, R. 407; Reynolds v. Toppan, 15 Mass. .')70 ; Taggard v. Loring, 10 Id. 330; IJoucherv. Lawson, Temp. Hard. II 1G2 THE LA'W OF SIIIPriNG. master has no power, merely in his character of master, without a superadded agency, to bind the owners by a charter-party under his hand and seal, so as to subject them to an action of covenant there- on.' Whatever contracts the master makes in the course of the voyage, within the scope of his employ- ment, bind the owner or a purchaser. A purchaser takes the ship subject to all incumbrances, and to all lawful contracts which the master had before made or afterwards made respecting the employment of the ship. Whatever contracts he may lawfully make as the master of tlie original owner, he may still lawfully make after the transfer, until he has notice of it.^ 85,194; Kingv. Lewis, 19 John. 235; Pope v. Nickerson, 3 Story's R. 479. The master may exempt himself from personal liability by a special contract to that effect, or he may be exempt if the credit was specially given to the owners. Iloskins v. Slay ton. Cases, Temp. Hard. 3G0 ; James v. Bixby, 11 Mass. 34; Maryland v. Webb, 16 John. 89 ; Palmer v. Davis, 1 Term. R. 108 ; Hussey V. Christie, 9 East's R. 432. ' Pickering v. Holt, 6 Greenl. R. ICO. = Portland Rank v. Stubbs, 6 Mass. 422 ; Badlam v. Tucker, 1 Pick. 389. In Grant v. Norway, 2 Eng. Law and Eq. R. 337, Jervis, C. J., said : " The authority of the master of a ship is large, and extends to all acts that are usual and necessary for the use and management of the vessel, but it is subject to several well- known limitations. He may make contracts for the hire of the ship for carrying, or he may vary that which the owner has made; he may take up moneys in foreign ports, and, under certain circum- curastances, at home, for necessary disbursements for repair, and bind the owners for repayment ; but his authority is limited by the necessity of the case, and he cannot make them responsible for money not actually necessary for those purposes, although he may contend that it is. He may make contracts to carry goods on EMPLOYMENT OF THE SHIP. IGS 141. When a vessel is intended to be employed as a general ship, and the owners do not interfere with the receipt of the cargo, they are bound by the con- tracts of the master, notwithstanding the ship may be at the place of their residence. When an owner is on board, and exclusively attending to the ship^ ment of the cargo, he is not bound by the master^s contract. But to relie\'« himself from liability, he must show the fact that he was exclusively attending to the shipment of the cargo.' The course of usual employment is evidence of authority given by the owner to make a contract for him.^ The right of the master to make a charter-party in the home port of the owners, cannot be ordinarily presumed from his character as master. It is not an incident to his general authority; nor can it be presumed as an ordinary superadded agency. But if he has been permitted to make such contracts in former voyage^^ it may be presumed that the authority has beeu <^^. freight, but cannot bind the owner to carry freight ft'e$, So, with., regard to goods put on board, he may sign tho biH oi; lading, am^i acknowledge the nature, quality, and conditioj:^ o| thp goods. Oou- stan-t usage shows that the master has a general authority ; and if a more limited authority is given, tb.e party not informed of it is not afTcctcd by such limitatioA. ^he waster is a general agent to perform all things relating to tVc uswal oniploymentof his ship; and his authority, us such agent, to perform all things as aro noces-.^ sary in tlic lino of business in which ho is cnij)luycd, cannot bCj, limited by any private orders not known to the party in any way dealing with him" Soo also Smith's Mercantile Law, 5;')^. It may be added, that the master has no right to pledge tho ffcighl for his private purposes. 2 Wash. C. C. 11. 297. ' Ward v. Green, G Cowcn, 17.'i. » Id. King v. Lennox, 19 John. R. 235. lOi THE LAW OF SHIPPING. forred on him for future voyages.' The master in his character as master, has no authority to procure insurance, nor is he in any sense an agent for such purpose, or in any way connected with it.^ 142. The authority of the master to sign bills of lading, may be derived either from express delega- tion of the owner, or from the usual course of busi- ness or employment. The captain of a vessel en- gaged in the freighting business, who is in the habit of receiving goods for hire, and signing bills of lading, has authority to bind the owners as much as if the authority were expressly given.^ All parties con- cerned have a right to assume that the agent has authority to do all that is necessary ; but the very nature of the bill of lading shows that it ought not to be signed till the goods are on board, for it begins by describing them as " shipped." And hence the owners of the ship are not responsible to parties taking a bill of lading which has been signed by the master without receiving the goods on board."* 143. Ordinarily, the master is a stranger to the cargo, beyond the purposes of safe custody and con- veyance. But in cases of instant and unforeseen and unprovided for necessity, the character of agent and supercargo is forced upon him, not by the immediate act and appointment of the owner, but by the gene- * The Schooner Tribune, 3 Sura. E. 144. a Gen. Int. Ins. Co. v. Kuggles, 12 Wheat. R. 408 ; Patterson V. Chalmers, 7 B. Monroe's II. 595. =• Nichols V. De Wolf, 1 Rhode Island R. 277. * Grant v. Norway, supra. Vide post, part 2, tit. ''Conveyance of Goods in a General Ship." EMPLOYMENT OF THE SHIP. 165 ral policy of the law/ Ordinarily, however, his power relates merely to the carriage of goods, and the supplies requisite for the ship ; and the owner of the ship cannot be bound by any contract of the master concerning the purchase of the cargo. To bind the owner in such a contract, he must have a special authority.' That authority will be presumed, if the owners have permitted the master to purchase on their account, or have ratified such acts when known to them. By so doing they have held him out to the world as their agent authorized to pur- chase, and are justly bound by his acts.^ ' The Gratitudine, 3 Hob. Ad. R. 240. 2 Ilathon V. Curtis, 8 Greenl. R. 356 ; Hewitt v. Buck, 17 Maine, 153. ^ Hewitt V. Buck, supra. The captain of a steamboat has autho- rity to contract for freight or passengers, to be carried according to the usual trade of the boat; and the owners are bound by such con- tract, even witliout their assent given thereto. And he is personally liable for the diligence of all persons, even for a pilot appointed by the owners, and for injuries resulting from want of due care. In the case of Denison v. Seymour, 9 Wend. R. 1, Savage, Ch. J., in giving the opinion of the Court, said : '' I am of opinion that the fact of the pilot being chosen by the owners docs not alter the law as to the captain's responsibility. Suppose the owners should con- tract, not only with the pilots, but with all the hands on board, through the agency of some other person besides the captain, as they probably do, would the captain therefore become entirely ir- responsible ? and must any one whose vessel has been run down, when a totally irresponsible person was at the wheel, bring his suit against a common sailor? The owners of a vessel may not be known ; they may be residents of a foreign country. It wouhl be adding insult to injury to say to a man, whose property had been destroyed, that he has his remedy against a common sailor, or the owners, who perhaps live in ]Curnpe. My opinion is, tli:it the master of a steamboat is liable like the master of a merchant IGG THE LAW OF SHIPPING. 144. By the general maritime law, every contract of the ma.ster, within the scope of his authority, binds the vessel, and as incident thereto, the freight, and gives the creditor a lien upon both for his secu- rity.' The ship is bound to the merchandise, and the merchandise to the ship. The shipper of goods, therefore, has a lien on the vessel, for any damage they may sustain from the fault or neglect of the master, or the insufficiency of the vessel. This lien may be enforced in the Admiralty by process in rem.^ The lien of the merchant for his damages, attaches from the moment that the misfortune happens, and his claim upon the ship is preferred to the right of the general creditors of the owners. But like all other maritime liens, it may be lost by unseasonable delay in enforcing it. Obviously, however, it is not defeated by a hona fide sale, before he has had an opportunity to enforce it, and still more obviously ship ; and that the circumstance of the pilot's being appointed by the owners does not discharge that liability, so far as third per- sons are concerned." See, also, Porter v. Curry, 7 Louis. R. 238 ; Patton V. Magrath, 1 Rice's R. 162. To make a person liable, who, otherwise, upon strict legal principles, would not be liable, because inconvenience might arise to third persons, if responsibi- lity were not attached to him, is neither philosophical nor just. The general liability of the master, for the diligence and care of all persons under his command, within the scope of their employ- ment, is universally recognised. If the owner has appointed in- competent persons to serve under him, he may, for that reason, decline the command — refuse to take it upon him. But if he does assume it, he assumes all the responsibility attached to it. ' The Paragon, Ware's R. 332. 3 The Rebecca, Ware's R. 188; The Phebe, Id. p. 203; The Brig Casco, 4 Law Rep. 471 ; S. C Davies, R. 184 ; The Schooner Volunteer, 1 Sum. R. 551. EMPLOYMENT OF THE SHIP. 167 ■when the purchaser has knowledge of the claim. By the civil and common law, the owner is responsible for all the obligations of the master to their full amount, whether arising ex contractu or ex delicto. But the general maritime law of Europe limits the liability of the owner in cases arising ex delicto, to the value of the vessel and freight, and by abandon- ing them he is discharged/ 145. This limitation of the responsibility of owners, however, has never been adopted in this country. It must be understood that it is not every wrongful act of the master that will bind the owner, or will ojierate an h}'pothecation of the ship. It is those acts only which fiiU within the legitimate range of his authority that produce this effect. While acting within these limits he binds the owners, because he is their authorized agent ; and he binds the ship di- rectly, because the policy of the maritime law has given to the shipper this additional security.^ 14G. Hence it is, that a shipper has a lien on the vessel for the execution of a contract by a bill of lading, entered into by the master, which may be enforced hy process in rem in the Admiralty. And it is immaterial in this respect, whether the vessel is in tlie employment of the owner, or let by a charter- party or ])arol agreement, on the condition that the hirer shall have the whole control of her. By the maritime law, the master's authority to l)in(l the » The Rebecca, Ware's R. 188. The Statute Law of Maine has affixed the same liiiiita to the owner's liability. Vide Laws of Maine, vnl. 1, ch. 14, 8, 8. ' The Rebecca, svjira. IGS Tin: LAW OF SHIPriNG. vessel is the same, whether he is appointed by the owners, or the ship is let to him by a charter-party. Whoever deals with the master, in all cases where he is acting within the scope of his authority as mas- ter, by the policy of the law, and upon a principle of common justice, is entitled to look to the ship as his security. And that security is not merely collateral or accessory to that of the owner, but it is the pri- mary security.^ 147. AVhen the master contracts without any im- plied authority of the owners, arising out of the usual course of employment of the ship, theyare not bound. Hence, if a ship is not put up to freight, but is employed by the owner on his own account, and the master receives goods of another person as part of his privilege, taking to himself the freight and commissions, the owner of the ship is not liable, in case of embezzlement, or for the conduct of the master in relation to such goods."^ Nor is the owner 1 The Druid, 6 Jurist, 441 ; S. C 1 W. Rob. R. 301 ; The Waldo, Davies R. 161; The Phebe, Ware's R. 263. = King V. Lennox, 19 John. R. 235. This was an action of assumpsit, brought against the defendant, as owner of the ship called the Ram-Duloll-Day, to recover the value of certain goods fchipped on board of that vessel, on account of the plaintiffs, and consigned to them, on her voyage from Calcutta to New York, in the year 1817. The cause was tried before Mr. Chief Justice Spencer, at the New York Sittings, in April, 1820. A verdict was taken for the plaintiffs for 1494 dollars and 75 cents, subject to the opinion of the Court on a case made. It appeared that the master of the vessel, on the outward voyage from New York to Calcutta, received from the plaintiffs a quantity of cheese and ver- digris, which was shipped as part of the master's privilege, allowed EMPLOYMENT OF THE SHIP. 169 liable for goods clandestinely taken on board by the master, he being present and having the manage- ment of the voyage himself, or being accidentally absent leaves an agent to whom he confides that business, intrusting nothing to the master but the care of sailing and directing the ship herself If, however, the ship-owner under such circumstances assents to and adopts the act of the master, he will be held accountable/ The principle is, that when the owner takes upon himself the general manage- to him, as is usual by owners of vessels, and which were sold in C, two-thirds for account of the plaintiifs, and one-third for ac- count of the master ; and the proceeds, deducting the homeward freight and commission which were received by the master, were invested in the goods of the country, packed in a trunk, laden on board of the R., and consigned to the plaintiffs, at New York. No part of the shipment, outward or homeward, or the freight or com- missions, were entered in the ship's accounts; but the same were considered as part of the master's privilege. The ship was not a general ship, but was wholly laden on account of the owner, ex- cept the usual privileges allowed the supercargo, master, and other officers. The trunk containing the goods in question was stowed in the cabin of the ship, under the master's berth, where he usually stows some part of his privilege. The master died on the home- ward voyage. On the arrival of the ship at New York, the trunk consigned to the plaintiffs was opened at the custom-house, by per- son.s appointed by the collector of the customs; when two shawls, all the pearls, and eight pieces of clmppa romalls, mentioned in the invoice, to recover the valu(! of wliich this suit was brought, were missing, ft was held, that tlie owners were not bound — the fihip being freighted wholly by them, and the master having no authority from them to receive goods on freight. See, also, ^V^altcr v. IJrewer, II .Mass. II. 09; Ward v. Green, G Cowcn, 173; Peters v. IJ.iIIisticr, 3 I'ick. 40.^. ' Walter v. IJrewcr, I 1 M.i.^.. It. !l!) ; licynolds v. Toppan, 19 Ma.ss. Jl. .';70. 170 THE LAW OF siiirriNG. ment of the concerns of the vessel, he thereby lunlts ]iro tanio the authority of the master, and, therefore, when he makes a contract respecting the employ- ment of the ship, the master cannot make another to annul or supersede it.^ 148. It should be here observed, that usage has given to the masters of vessels certain privileges of transportation and traflic. These privileges may be abandoned by contract. Hence, where a master and supercargo was to receive a certain sum per month as wages, and a commission of five per cent., and also one-tenth of all the profits, and it was agreed that these were to be in full of all services and pri- vileges, the master and supercargo is precluded by his contract from engaging in traffic upon his own account and for his own benefit.^ 149. If the shipper consigns his goods to the mas- ter for sale and returns, in proceeding to dispose of them he does not act under any authority derived from his appointment as master, but in an entirely new character, that of supercargo or factor. And his duties and liabilities under these two characters are as distinct and independent as they would be if the trusts were confided to different persons. In all that relates to the transportation of the goods and navigation of the ship, he acts as master ; and all that he does in relation to the disposition of the merchandise, is referred to his character as factor. ' Ward V. Green, 6 Cowcn, 173 ; Peters v. BuUistier, 3 Pick. 495 ; Burgen v. Sharpe, 2 Camp. R. 529. 2 Mathewson v. Clark, G How. (U. S.) R. 122. EMPLOYMENT OF THE SHIP. 171 In these cliaracters he is the agent of different prin- cipals ; in the first he is the agent of the ship-owners, and his acts are imputable to them ; in the second he is a stranger to them, and they are no more re- sponsible for his acts than they would be for those of a third person to whom the shipper should con- sign his goods. In the transaction of that business he is the agent of the shipper.^ When, however, it is the usage of the particular trade for the master to act as consignee, and bring back the proceeds of the goods shipped, for all which a proper compensation is allowed in the nature of freight, the owners are liable for the proceedings of the master in conduct- ing such sales, and for the proceeds received by him.^ ' The Waldo, Davies' R. 161. * Eraery v. Herscy, 4 Greenl. R. 407 ; Kemp v. Coughty, 11 John. R. 107; Kendrick v. Dchxficld, 2 Caines R. G7; Earl v. Rowcroft, 8 East. R. 120, 140; Cooke v. Com. Ins. Co. 11 John. R. 40; Crousillat v. Ball, 4 Dall. 294. The case of Kemp v. Coughty, sitjtra, arose in the trade between New York and Albany. It was proved to be the usual course of the trade, to send goods with orders to the master to sell either for cash or ercdit, and for him to return the proceeds to the shipper. No commissions were allowed the master fur (his service, nor to the owners, beyond what was involved in the freight. It was decided when the master had sold the goods, and failed to pay over the proceeds to the ahippor, that the owners of the vessel were liable. The liability, in that case, was not founded on the general maritime law, but arose out of tlie particular custom. Under that custum the .'^hip- owners undertook to act in the character of factors, as well as car- riers; and intrusting the whole business to the master as (heir servant, they would be answerable for him jirrsoiKi//// in one cha- racter or the other. It is another (jucsdon, whether I'nr his de- faults in the character of factor the shippers would ha\e a rtMiiedy against the vessel in rem. That is an open question. JJut it would seem that there is no substantial grouud upon which to hold 172 THE LAW OF SniPPING. 150. It has been supposed, that as the master could bind the owners for all necessary repairs and supplies furnished during the voyage, they became ipso facto, acceptors of his drafts drawn in payment of them. But such is not the case. There is no such legal relation Ijetween the master of a vessel and his owners, that they become, by force of such relation, acceptors of a bill of exchange drawn by him in a foreign port for supplies for the vessel. There is no doubt of the master's power to bind his owners for repairs and supplies in a foreign port. His agency as master is sufficient to bind them for the payment ; and to enable him also to obtain the credit, he may pledge the vessel by bottomry con- tract, and hypothecate the freight and cargo belong- ing to the owners ; but he cannot draw bills of ex- change, and bind them in law as acceptors, from the fact that the bills are drawn for supplies. The law imposes no such liability upon them, and places no such temptation in the hands of the master to ex- ceed his authority.^ 151. Owners are answerable for the torts of the master done within the scope of his employment; and this responsibility arises from a general prin- ciple of the maritime law, and not by virtue of any the vessel liable for acts of the master, in no way connected with his office of master. The case of Emery v. Ilersey, mjyra, turned upon the same principles as were involved in Kemp v. Coughty, and was decided upon the ground of a similar custom prevailing in the trade between Saco and Ncwburyport. Vide, also, Emeri- gon, Contrats a la Grosse, ch. 4, s. 11, and Des Assurances, ch. 12, s. 3. • Bowen v. Stoddard, 10 Met. R. 375. EMPLOYMENT OF THE SHIP. 173 special contract.' The Admiralty has jurisdiction in cases of maritime torts, in loersonam, as well as in rem, and may issue the process of attachment to compel appearance, both in cases of maritime torts and contracts.^ In cases of collision occurring on the high seas, from want of care and skill on the part of the injuring ship, the familiar remedy in the Admiralty is called a cause of collision. It lies against the owner and also against the ship itself. 152. In a very recent case of collision in the English Admiralty, it was held, that when a vessel at sea causes damage, an inchoate lien emerges ; and when the amount of the damage is judicially ascer- tained by a proceeding in rem, the lien relates back to the period when it first attached, and takes pri- ority, to the extent of the then value of the vessel, of all other liens, and travels with the vessel wherever she goes, or into whose hands soever she passes; but this lien arising out of damage is not indelible, but may be lost by negligence or delay, where the rights of third parties are compromised. A proceed- ing in rem in the Admiralty Court for wages, sal- vage, collision, or bottomry, goes against the ship in the first instance. A maritime lien and a proceed- ing in rem are correlative : wherever a proceeding in rem is competent a lien exists, and vice versa.^ 153. This is the first case, we believe, where an ' Dean v. Angus, Bee's Ad. II. 3G9. ^Munro V. Almeida, 10 Wheat. II. 473; The Invineiblc, 2 Gaiiis. II. n. •••Tlio Bold IJuccleugli, ?> W. Hob. Ad. 220; S. C American Law Ilegistcr, vol. i. p. ol. 174 THE LA"\V OF SHIPPING. Englisli or an American Court of Admiralty has di- rectly held, that damage caused by collision was a lien on the colliding vessel. The vessel has been held liable, as a means of security for the damage, and not upon the ground that there Avas any tech- nical lien. The practical result, however, has been the same, and the vessel, in either case, is held re- sponsible, even in the hands of a bona fide pur- chaser.' 154. But while the law holds, and justly holds, the owners responsible for the torts of the master, done within the scope of his employment, it dis- charges them from all liability, when he quits sight of the object for which he is employed, and commits a wanton trespass. He is then not obeying their orders, either express or implied, but following the suggestions of his own malice. But here the law makes a distinction, and holds the owners account- able in cases of general malice, as when a steamer goes through a very crowded roadstead in a dark night, occasioning a collision, and destroying a ship and crew, but exonerates them in a case of particular malice. The law implies malice in an act of the former character, and makes the owners answerable for the recklessness of their servant while pursuing their ])usiness — he at the same time being respon- ' The Thames, 5 Rob. 345; The Dundee, 1 Hagg. 109; The Woodrop Sims, 2 Dod. 83, 1 Dod. 407; The Stockton, Crabbe's R. 080. What is stated in the text does not relate to the ques- tion, whether the vessel is liable in rem, in a cause of collision, when she is in charge of a licensed pilot at the time of the colli- fiion. See post, pt. 2d, tit. Pilots. EMPLOYMENT OF THE SHIP. 175 sible both civillj' and criminally. In the latter case the owners are not accountable, because the master, from the direct instigation of malice, goes beyond the line of his employment, and wilfully commits a trespass, as when intentionally he runs another ves- sel down/ 155. The law, upon similar grounds, makes the owners of privateers liable for any torts committed by the master and crew in making captures, &c., in the course of their cruise. Unoffending neutrals are not to be subjected to acts of trespass and wrong committed by privateers, and then turned over for their remedy to the actual wrong-doers, who may be wholly irresponsible, but the law gives them a two- fold remedy against the owners or their servants. 15G. When the suit is ao;ainst the original wrona- doers, Courts of law, if the circumstances of the case demand it, will visit upon them, in the shape of ex- emplary damages, the punishment which belongs to their lawless misconduct. But when the suit is against the owners of the privateers, different consi- siderations prevail. The law, from motives of policy, has devolved upon them a responsibihty for the conduct of the oflicers and crew employed by them, while they, from the nature of the service, > The Drnic], G Jurist, 144 ; Wriglit v. Wilcox, 10 Won.l. n\r, • The Kichmond Turnpike Company v. Vmidorbilt, 1 Ilill'.s II. 343; M'Manus v. Crickctt, 1 East, lOG; IJowclicr v. Wid.stroiii, 1 Taunt. 56S; Lyons v. Martin, .'} Ncv. & Perry, ODD; Dii.«ar v. Murgatroyd, 1 Wash. C. ('. Jt. 13; Stone v. Kotlaml, M. ll'J; see Tlic .State llightg, Crabbc's II. 48. 170 THE LAW OF snipriNG. can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. Hence, when they are innocent of the demerit of the trans- action, having neither directed it nor countenanced it, nor participated in it in the slightest degree, they are only bound to repair all the real inju- ries and personal wrongs sustained by the injured party. They are not bound to the extent of vindic- tive damages. Nor are they Ijound for any deterio- ration of the cargo, not attributable to the improper conduct of the officers and crew of the privateer. Nor for the probable or possible benefits of a voyage. The prime cost or value of the property lost, at the time of the loss, and in case of injury, the diminu- tion in value, by reason of the injury, with interest upon such valuation, affords the true measure for assessing damages. Nor is the owner of the priva- teer answerable for money paid to the master and crew, in the shape of ransom, for the release of the property unjustly captured. The utmost extent of loss to which the owner is subjected in such a case, is the payment of the costs and expenses of bringing the property to adjudication ; and for such costs and expenses, so far as they were incurred and paid in any particular case, the party paying them is en- titled to receive a recompense.^ 157. The liability of the owners, however, is only in those cases when the wrongful capture was made » The Amiable Nancy, 3 Wheat. K. 546 ; La Amistad de Rues, 5 Id. 384; The Mary, 1 Mason. R. 305; The Owners of Three Brigs, 1 Dall. R. 95 ; Del. Col. v. Arnold, 3 Dall. R. 333 ; St. Jean Baptista, 5 Rob. R. 33 ; Karasan, 5 Rob. 291 ; Nostra Sig- nora de los Dolores, 1 Dod. 290 ; Die Fire Darner, 5 Rob. 357. EMPLOYMENT OF THE SHIP. 177 as prize. They are liable in such cases, because the officers and crew are authorized to make cap- tures as prize ; they are in the direct execution of the business in which they are employed, when they proceed to do so. But the owners are exonerated from liability when the acts of the privateer are piratical, because she has no authority to commit acts of piracy. When she commits such acts, she exceeds her authority, violates her orders, acts in a business different from that for which she was em- ployed, and is guilty of crime. There is no principle of law or justice upon which, in such a case, the owners can be held liable.^ When liability is fixed » The Privateer Revenge, 3 Wash. C. C. R. 262 ; Bynk. 128, 129, 133, notes. " To a certain extent," said Washington, J., in the case cited, svpra, "a privateer is a public vessel, and forms a part of the national armed force In other respects, she is to be considered as private property; equipped and fitted for war at the solo e.xponsc of the owner; navigated by officers and crew chosen and appointed by himself, and paid by him ; and subject to such lawful orders and instructions as he may think proper to give. In consideration of the expense to which the owner thus subjects himself in co-operating with the public armed force in hostile operations against the enemy, the nation cedes to him, and those he may employ to conduct the privateer, the exclusive benefit of all the spoils which his ves.sel may lawfully capture as prize; to be distributed between himself and the officers and crew of his vc8.sel, according to any written agreement which shall have been made between them ; and in ca.sc no such agreement should have been made, then according to a certain ratio prescribed by law. It results from all this that the employment of a privateer, and the trust ronfided to her officers and crew, is to subdue and seize the vessels and (rffccts of the enemy found at sea, as well as all other vessels and effects, to whomsoever belonging, which may be liable thereto, according to the law of nations; and to bring all such property into a port of the capturing power for adjudication 12 ITS THE LAW OF SHIPPING. upon the owners, one of tlie part-owners cannot ex- empt liiniseli' Irom damages by making a compensar tion for the tort, and procuring a releasd of himself from the injured party.' The real owner, although his name does not appear in the bill of sale or ship's papers, will be answerable for damages, and this liability attaches to his representative.'' as prize of war." For captures improperly or wrongfxdhj made, the owners are liable, but not for luwutlwrized captures, that is, captures made in a business different from that for which he was employed. See Judge Hopkinson's comments upon this case in 2 Gilpin's R. 48. 1 The Karsan, 5 Rob. 291. 2 Nostra Signora de los Dolores, 1 Dod. R. 290. For other cases under this head, see Martens v. Ballard, Bee's Adm. R. 51 ; Slowcum V. Mayberry, 2 Wheat. R. 1 ; The Apollon, 9 Wheat. 362 ; Munro v. Almeida, 10 Ibid. 473 ; The Dundee, 1 Hagg. 109 ; Burke v. Trevitt, 1 Mason's R. 96 ; The Enchantress, 1 Hagg. Ad. R. 395 ; Chamberlaiu v. Chandler, 3 Mason, 242. 179 CHAPTER VIL OF THE MASTER'S AUTHORITY WITH RESPECT TO THE VESSEL. I. Of the Master's Relation to tue Owners. II. Of nis Duties in Time of War. I. OF THE MASTER'S RELATION TO THE OWNERS. 158. The master is the general agent of the owner or employer of the ship, as to procuring repairs and supplies for the ship, in a foreign port, in the absence of the owner or employer. This power is not un- hmited ; but is restricted to such repairs and sup- plies as are in a just sense necessary for the ship under the actual circumstances of the voyage. The interpretation put upon the phrase necessary repairs, is, that they must be such ^9 are reasonably fit and proper for the ship under the circumstances, and not merely sucli as are absolutely indispensable for the safety of the ship, or the accomplishment of the voyage.' 150. A person who lends money to be employed in the repairs of a vessel, or to furnish her with sup- • The Ship Fortitude, y Sunin. R. 22H, 23(; ; The Aurora, 1 Wheat. R. 102 ; •'} Kent's Com. 10:3; MoHoy, H. 2, c. 1, sec. 10. 180 THE LAW OF SHIPPING. plies, has the same privilege against the vessel and freight that niatcrial-nien have. To justify the master in borrowing, it is not absolutely essential that the occasion should arise abroad or in a foreign port. lie may borrow in a port of the State in which the owners reside, if the case is one of press- ing necessity, such that the master and owner cannot communicate without great prejudice and delay/ IGO. The master himself, unless there be some special agreement, is in every case personally respon- sible upon all the contracts which he makes in re- ference to the repairs, supplies, and navigation of the ship. But if there is a special promise by the owners, the master is discharged from any obligation, and on the other hand, if there is a special promise by the master, the owners are not liable. In the absence of any special contract, both the master and owners are bound for the repairs and supplies he ob- tains for the ship. The master, because the credit is given to him ; the owner, because the contract is on his account. If the repairs and supplies are ordered in the home port, they will generally be pre- sumed to be chargeable to the master as well as to the owner ; the same as if obtained in a foreign port. But if it is shown that the owner, or the ship's hus- band, managed the vessel, and that the party con- tracting with the master was aware of this, then the presumption of the master's authority, as agent of ' Hooper v. Whitney, 3 Kent's Com. 172, note ; Arthur v. Burton, 6 M. & W. 188 ; Johns v. Simons, 2 Adol. & PJllis, N. S. 424; Stonehouse v. Gent, Id. 431 ; Davis v. Child, Davies' R. 71. master's relation to the owners. 181 the owners, is rebutted, and they are not bound. Of course, when the repairs or supplies are ordered by the owners, the master is never liable. The owners contract for their ship, the credit is given to them only, and there is no ground upon which to charge the master.^ 161. When the repairs and supplies are reasonably fit and proper, the master, if he has not suitable funds, or cannot obtain money on the personal credit of the owner, may take it upon bottomry. The lender on bottomry is bound to exercise reasonable diligence, in order to ascertain whether such repairs and supplies are necessary and proper. He is not bound, however, to show that there was a positive necessity. It is sufficient, if there is an apparent necessity, so far as the lender is able upon due in- quiry and due diligence to ascertain the facts. The lender upon bottomry will be protected in such a case of apparent necessity for his advances, even though, upon a closer examination, and a more thorough investigation of the facts at a subsequent period, it should be doubtful whether the supplies and repairs were really necessary. When there is an apparent necessity for repairs, the lender on bottomry is under no obligation toincpiirc, as to the best mode of making the repairs, or whether they are made in the > Sec the authorities collected in Flanders' Maritime Law, 174, 175. It must be understood with reference to the doctrines of the text, that the master has no power or authority over the voyages or concerns of the fihip, or the interests of the owners be- yond what the law of his own country justifies and sanctions. Pope V. Nickcrson, .T .Story's R. 4G.'j; ronlni Malpicav. M'Kuun, Miller's Louis. K. 240 ; Arago v. Carrol, Ibid. 52«. 182 THE LAW OF SHIPPING. most judicious manner, or to ascertain the cause of the injury. As, when, for example, an acknowledged leak exists, how it is caused. It is sufficient, if he acts with good faith ; and does not wilfully co-operate in any unnecessary expenditure.' 162. Although the owner may have given parti- cular instructions to the master, which greatly cur- tail his general authority, he will nevertheless be answerable for his contracts falling within the gene- ral power belonging to his situation and character, notwithstanding such contracts are in violation of the particular authority given to him. But the master is responsible to the owner for the injury sustained by him, in consequence of the violation of his instructions.^ A man who undertakes to navi- gate a ship, is pledged to his owners, and he and they to all the world who may be affected, for his skill, care, and attention. It is not sufficient for him to say that he exercised his best judgment, but he is bound to show that he possessed and exercised the judgment of a skilful and careful commander.^ 163. The master and owners are responsible for every injury that might have been prevented by > The Ship Fortitude, 3 Sum. E. 228. Mr. Justice Story, in this elaborate and learned opinion, has fully examined the whole subject, and left nothing to be added to the questions he has dis- cussed. See Gibbs v. The Texas. Crabbe's B,. 236; Patton v. The Randolph, Gilpin's R. 457. ' Abbott on Ship. p. 218; Grant v. Norway, 2 Eng. Law and Eq. R. 337. ' Stone V. Ketland, 1 Wash. C. C. R. 142 ; ante, chap. 1, and chap. 6. master's relation to the owners. 183 human foresight or care. They are liable for goods stolen or embezzled on board the ship by the crew or any other persons, although no negligence may be imputable to them. The rigor of the law in this respect arises from reasons of public policy, and to prevent the combinations that might be made with thieves and robbers.^ The owner is exempt from liabilitj' for acts of the master beyond the scope of his general authority ; for no one is answerable for the unauthorized acts and doings of another. Hence if the general employment of a vessel is in the coast- ing trade, and the master, without any authority, takes goods or freight for a foreign voyage, the owner is not answerable to the shippers. In such a case, notwithstanding the master was appointed by the owner, yet the latter could defend himself on the ground that he never had employed, or authorized the master to employ, his ship in such a voyage. Nor is the owner liable, if the master commits acts of piracy. Such acts are imputable to those only who perform them, and cannot upon any principle of common, maritime, or national law, be visited upon the owner.^ 1G4. The owners may dismiss the master at their pleasure. It is no part of the contract that a master once engaged shall be master for the voyage at all events. If it were otherwise, it might prove ex- tremely injurious to owners, on account of the very extensive powers tlie master has over their property. The owners, however, are answerable for all his acts ' Schicffclin v. Harvey, G John II. 170. » Diaa V. Privateer Revenge, 3 Wash. C. C. R. 202. 184 THE LAW OF siiirriNG. done within the scope of his authority anterior to his dismissal. And the master would he entitled to compensation, if he incurred any loss, or sustained any damage from his dismissal, unless it was for sulhcient cause. His proper remedy in such a case would be an action at law. Upon a general retainer, for no particular voyage, the master may be dismissed at any time without cause assigned; because the nature of his employment, upon that condition, is a mere agency, to be revoked at any time by the prin- cipal.' 165. The Admiralty will dispossess the master if the owner, or a majority of the owners, when there are several, declare their disinclination to continue him in possession. But if the master should be a part-owner, the Court would require some special reason, before proceeding to dispossess a person who is a proprietor in the vessel.^ Mr. Curtis, although he admits the question to be an open one, and the opinions of jurists to be divided upon it, concludes from an examination of the ancient maritime codes, that by the maritime law the owners have a right to remove the master, who is a part-owner, at their own pleasure, paying him for his share of the vessel ; but if he is removed without good cause, after an engage- ment for a particular A'oyage, he thinks they are bound to pay him damages for the loss of the em- ployment as master, and for any losses or liabilities he may have incurred by reason of his appointment.^ > Montgomery v. Wharton, 1 Peters' Adm. R. 397 ; S. C. 1 Dall. R. 49; Curtis's Merchant Seamen, 1G6. 2 The New Draper, 4 Rob. Ad. 2o7. ^ Rights and Duties of Merchant Seamen, p. 1G4. See also The THE master's duties IN TIME OF WAR. 185 II. OF THE MASTER'S DUTIES IN TIME OF WAR. 1C6. It is a principle universally applied in a Court of Prize, that the act of the master of the vessel binds the owner in respect to the conduct of the ship, as much as if such act was committed by the owner himself. The law invests him with cer- tain powers ; and if he abuses his trust, it is a matter to be settled between him and the person who con- stituted him master ; but his act of violation is, as to the general consequences, to be considered as the act of the owners.' 167. If the master goes to a blockaded port against the orders or without the knowledge of the owner, he is bound nevertheless. If the owner trusts his property to the care of such a person, he must be held answerable for his integrity, and in some degree for his prudence. If the master, after being warned of the existence of a blockade, approaches the block- aded port, or acts in such a manner as cannot, for the safety of other cases, be admitted to proceed from justifialjle ignorance, his principal must take the consequences of his imprudence.^ 168. Ordinarily, tlie acts of the master do not bind the owner of the cargo, he not being the representa- tive of the cargo, nor dc jnrc the agent of its owner. Johan and Siofrmund, Edw. Ad. R. 242 ; The Sea Hentcr, 1 Pod. Ad. K. 22. The master will not be dis|)o.s.sc.ssed where there is a mere equality of interest. 1 Ilagg. Adm. 11. 340, note. ' The Vrouw Ju.lith, 1 Hob. Ad. R. 150. » The Adonis, 5 Rob. Ad. R. 228. 186 THE LAAV OF SIIIPTING. If, however, the owner of the cargo is also owner of the ship, or conusant of the intended vioLation of belligerent rights, or if the master is directly the agent of the owner of the cargo, in these cases the acts of the master bind the owner of the cargo, as well as the owner of the ship. When the master deviates into a blockaded port, and the excuses which he sets up for so doing are pronounced by a Court of Prize either not real or not sufficient, a presumption necessarily arises that it was for the delivery of the cargo that such a fraud had been attempted. Such a presumption necessarily arises, because there is scarceh' any other adequate motive which can be supposed to induce a master to hazard the interests of his vessel; the motives which he assigns being demonstrated to be false. There is a presumption also in such cases, that the act of the master was done wdth the knowledge, and at the instigation, of the owner of the cargo ; because, although it is not an impossible thing that masters may be guilty of barratry, it is not a natural conduct, nor gratuitously to be supposed. Lord Stowell held, that the pre- sumption in such cases was absolutely conclusive ; that the owner of the cargo was absolutely bound by it, and could not be admitted to rebut the presump- tion by any contrary averment whatever. And this on account of the fraudulent abuse to which such a liberty must inevitably lead, since it would be per- fectly easy, at any time, to set up the pretence, and equally impossible, on the other side, to detect it.^ ' The AdoDis, 5 Hob. Ad. R. 228 ; The Mina, 3 Rob. 169 ; The Rosalie & Betty, 2 Rob. 343, 351 ; The Alexander, 4 Rob. 93 ; The Elsebe, .5 Rob. Ad. R. 173 ; The Marianna, Flora, 11 Wheat. 57. THE master's duties IN TIME OF WAR. 187 169. There are other cases where the act of the master ^Yill bind the owner of the cargo, as well as the owner of the shij^. One of the most prominent is, a resistance of the right of search. This is a bel- ligerent right of long standing, and of manifest ne- cessity. If a neutral furnishes to one belligerent articles contraband of war, he gives aid to that belli- gerent, and thus directly interposes in the war. A neutral government, encouraging a contraband trade with a belligerent, would undoubtedly be deemed to have taken such a part in the war as to become a party to it. But when the citizens of a neutral country, without any implication of their govern- ment in their unlawful act, engage in a contraband trade with one belligerent, the only consequence re- sulting from such conduct is, that the contraband goods are liable to seizure and confiscation. To as- certain whether neutral vessels have on board con- traband goods, the right of visitation and search is essential, and lience is generally acknowledged. A resistance therefore to this admitted right is per se illegal. It is an attempt fraudulently to withdraw the cargo from the rights of war, and the cargo there- fore as well as the vessel is condemnable dejure.' 170. A neutral must not contribute, either di- rectly or indirectly, to the force of an enemy. Sail- ing under convoy is not an act of itself that will subject a neutral ship and cargo to confiscation, but resistance of tlie convoy ship is the resistance of the whole convoy; and the resistance of the ship affects ' The Catharina Elizabeth, 5 Ilob. Ad. 11. 200 ; The Elaebe, 5 Rob. 173. 1S8 THE LATT OF SHIPPING. the cargo.' And in all cases where the master is the agent or consignee of the cargo, his act will bind the owner exactly as that of any other agent or con- signee. It may be laid down as a proposition, sanc- tioned by the law of nations, that any illegal act of the master of a neutral ship, having for its object the benefit of the cargo, will be deemed to be autho- rized by the owner of the cargo, and will subject both ship and cargo to condemnation.^ ' The Maria, 1 Rob. 340 ; The Elsebe, supra. 2 See- Appendix to 2 Wheat. R. 38; Miston v. Lord, Blatch- ford's R. 357. 189 CHAPTER VIII. OF THE MASTER'S DUTY UPON AN INTERRUPTION OF THE VOYAGE. 171. The master of a merchant vessel becomes of necessity an authorized agent for the owners, freight- ers, insurers, and all parties concerned in the voy- age, when its progress is interrupted either by a cap- ture as prize, or by other detentions and casualties ; and whatever he undertakes, and whatever expenses he may incur fairly directed to the benefit of all con- cerned, become a charge upon them respectively, in the same manner as if incurred at their special re- quest.' 172. If the ship is driven out of her course by stress of weather, the charge of the cargo devolves upon the master, who is bound to take proper care of it. If tlie goods are damaged, or of a perishable nature, he has power to sell them. If they are so much damaged that to proceed with the voyage will endanger the safety of the ship or render the goods worthless, it is the duty of the master to land and sell them at the port of necessity, in the absence of instructions from tlie shipper, even tliough they may be in a coiKlitloji to be carried in specie to the port ' Douglass V. Moody, 9 Mass. 548. 190 THE LAW OF SniPPING. of destination and there landed. If a part of the cargo is in good condition and not perishable, the master has no right to sell it without the order of the owners, to whom he is bound to give immediate information.' 173. If the ship is disabled from performing the voyage by the perils of the sea, the master must ob- tain another vessel, if one can be procured in the same or a contiguous port, and proceed with the cargo to the port of destination. This rule, how- ever, is not absolutely inflexible. The master is in loco procurator is, both to the ship and cargo. He is bound to exercise a sound discretion in the circum- stances in which he is placed. And if it appears that it would be better not to tranship, owing to reasonable cause, the master is restrained from tran- shipment.^ Circumstances make it necessary to re- ' Smith V. Martin, 6 Binn. 261; Miston v. Lord, Blatcbford's R. 357 ; Jordan v. Warren, 1 Story's 11. 342. » Luke V. Lyde, 2 Burr. 889 ; Schicfflin v. Now. York Exch, Ins. Co. 9 Johns. R. 21 ; The Gratitudine, 3 Rob. Adm. R. 240; Searle v. Scovill, 4 John Ch. R. 21S, 3 Kent, 1G8. " It is clear from all the authorities," says Mr. Curtis, in his work on Mer- chant Seamen, (both) " ancient and modern, that if the ship can- not be repaired at all, or not without very great loss of time, the master is at liberty to tranship, and so to earn the whole freight. In such case, the freighter is bound to pay the extra freight for the renewed voyage, which the master pays for the hire of the vessel which he procures. If, however, the vessel can be repaired in a reasonable time, and the cargo is not perishable, the master is not bound to tranship, but he may detain the cargo until the re- pairs arc completed. If the cargo is of a perishable nature, and there is not time or opportunity to consult the proprietor, he may Bell a part of it, or hypothecate the whole, if necessary, to effect INTERRUPTION OF THE VOYAGE. 191 pose a large discretion in the master or owner, while the same circumstances require that the exercise of that large discretion should be very narrowly watched/ 174. If, however, the ship is capable of repair, and this can be done in a reasonable time, it is the duty of the master to make the repair, provided he can obtain the means. If he cannot obtain them upon the security of the ship, he may h^'pothecate the whole cargo or sell a part, and apply the pro- ceeds to the prosecution of the voyage. '' The books all admit that he may sell a part ; some ancient re- gulations have attempted to define what part, others have not. The general law does not fix any aliquot part, and indeed it is not consistent with good sense to impose a restraint, or to fix any limitation to mea- sure a state of things which is to arise only from necessity. It must, generally speaking, be adequate to the occasion. One limitation, however, the policy of the law necessarily prescribes : that the power of selling cannot extend to the wliole, because it can never be for the benefit of the cargo, that the whole should be sold to repair a ship which is to proceed empty to the place of her destination. There will in that case be no safe custody and transmission, and therefore the power of selling, for the repairs of the ship, must be limited to the sale of a jxirf, though it may not be possible to assign the exact part, except the repairs of the hhip, and to cnaljlc him to carry tlie residue for- ward, or Iio may tranship it, according as in tlie hcst exercise of his judgment would ho for the interest of the whole cargo." ' Shipton V. TliorutoD, 9 Adol. & i^llis, 314 ; sec, also, 1 Perry & Dav. '21G. 192 THE LAW OF SHIPPING. where positive regulations have fixed it."' The reader will find in another part of this vohime this subjeet more fully considered, and the rights and duties of the master in the premises more fully ex- plained.' 175. If a neutral ship is carried by a belligerent party into a port of the captors, for adjudication, the mariners are bound to remain by the ship until a condemnation or all hope of recovery is gone, and a voluntary abandonment of their duty in this respect amounts to desertion and forfeiture of wages.^ The obligation of the master to remain by the ship, in such circumstances, is far more strong in point of right and duty than that of the mariners. He is intrusted with the authority and obligation to inter- pose a claim for the property before the proper tri- bunal, and to endeavor, by all the means in his power, to make a just and successful defence. To abandon the ship to her fate, without asserting any claim, would be a criminal neglect of duty, and would sub- ject him to heavy damages for a wanton sacrifice of the property. As, therefore, the law compels him to remain by the ship, and attaches him in some sort to her fate, he is entitled to receive compensation for his services, and this compensation is a charge to be borne in the first instance by the owner of the ship, and ultimately as a general average by all the parties in interest. If the master should deem an appeal to be expedient, he is bound to enter it, and may, in his discretion, remain until copies of the papers are * The Gratitudine, sripra. '^ Post, chap. 10. » The Brig Elizabeth, 1 Peters' Ad. R. 128. INTERRUPTION OF THE VOYAGE. 193 obtained, and other means of rendering the appeal effectual are concluded.^ 176. The mariners, however, are not bound to remain with or near the ship after an unfavorable adjudication in the lower Court of Admiralty of the captors, though an appeal may be entered, and the vessel remain in custod}^ and unsold. But they are. bound, as already stated, to wait, if required, for this adjudication ; not only to take care of the ship and her cargo, if permitted to do so, but to afford their testimony in the cause, when required to be used on the trial, in the first instance, and transmitted among the cq^o-steUa, in case of appeal.^ If the vessel is carried in for adjudication on account of the cargo, the master must contribute his exertions to rescue the property from condemnation, by interposing a claim, and exhibiting in support of it the documents with which he is furnished for its protection. If he negligently performs this duty, and the proprietor of the goods sustains damage in consequence, he is re- sponsible for it.^ The master is bound to save for the owners the ship and cargo by all fair means within his power, but he is not bound to employ fraud in order to effect the object.'' 177. On the contrary he is bound to the exercise of good faith, and if there is an absence of it, he may subject the ()\vn(.'rs to costs and damages. If there ' Will;ir.l V. Dnrr, I) Mason's R. 1C7. ' Tlic Brig Klizaljcth, &iipra. ' Chcviott V. IJrookH, 1 .loliii. W. 'M\\. ♦ Ilannay v. Kvc, 3 Crauch's 11. 242. 13 104 THE LAW OF siiirriNG. is a siipprossion of the isliip's papers, a fraudulent cover of belligerent property, an illegal rescue, in all such cases the default of the master subjects vessel and cargo either to condemnation or costs and damages.^ Where the master is consignee of the cargo, his acts are to be referred, in respect to ship- pers, to the particular character in which the acts are done. Generally the master does not and cannot lay aside his character and responsibility as master, until the vessel performs her voyage, and arrives at the port of destination. The accidental circumstance of the character of consignee being added to that of master, cannot qualify or alter his acts as master ; the two characters being wholly distinct.^ 178. After the arrival of the cargo at the port of destination, the acts of the master are to be con- sidered as done in his character of consignee. A new relation is interposed, and the master now acts as the agent of the consignor. And if in the sale of the cargo, and accounting for the proceeds, he acts fraudulent!}^, the ship-owner is not responsible. It would be otherwise if the owner and not the mas- ter received the commissions upon the sale, or if it were the usage in the particular trade to consign goods to the master for sale, and the freight received by the owners covered the whole compensation paid for the carriage and sale of the goods.^ • The Elsebe, 5 Rob. 173 ; The Dispatch, 3 Rob. 279 ; The Nereide, 9 Crunch, 388, 451. 2 Kendrick v. Delafield, 2 Caine's R. 67; 8 East's R. 140; 4 Dall. R. 294 ; Cook v. Com. Ins. Co., 11 John. R. 40. 3 "Williams v. Nichols, 13 Wend. R. 58; Kemp v. Coughty, 11 John. R. 107. INTERRUPTION OF THE VOYAGE. 195 179. For in these instances the master undertakes these additional duties, as the agent and for the benefit of his owners. He is not acting in a different capacity, distinct from his capacity as master, and receiving therefor from the shippers a distinct com- pensation. He is not therefore their agent. He acts for the owners, they receive the benefit of his services, and are responsible for his conduct. 190 CHAPTER IX. OF THE CARRIAGE OF GOODS. 180. We are now to consider the duty and obliga- tion of the master and owners with respect to the means of transporting the cargo. And in doing so, our progress will be but little impeded by contrary and conflicting decisions. The Courts, not only of our country but England, and we may add the jurists of Continental Europe, have concurred with singular unanimity, in holding the master and owners accountable for the custody and safe carriage of the cargo intrusted to them, and generally to the same extent and upon the same grounds. 181. Our law, however, holds a common carrier to a stricter liability than the civil, which exone- rates him if the loss arose from robbery or irresistible force.' Originally, the doctrine of the common law was the same, and a common carrier was not charged in the case of robbery, unless he travelled by dan- gerous ways, or at unreasonable hours.^ But to pre- vent the combinations that otherwise might be made with thieves and robbers, the present stern rule was ' Digest, tit. Nautac, Cauponos, &c., 4, 9, 3. * Jones on Bailments, p. 103. OF THE CARRIAGE OF GOODS. 197 adopted, which holds common carriers liable even though they are overpowered by a superior force and the goods stolen.^ Carriers by water, whether in foreign or inland navigation, are subject to the same strict rule, and nothing excuses them for the non- delivery of the cargo, but the act^ of God, or the public enemy, or the happening of an event expressly provided for in the charter-party or bill of lading.^ 182. We shall consider in a subsequent chapter, the causes which will excuse common carriers. The subject immediately before us, is the duties of car- ' Forward v. Pittard, 1 T. R. 27 ; The Huntress, Davies' R. 82 ; Hyde V. Trent & Mersey Nav. Co., 5 T. R. 389 ; S. P. 1 Esp. 3G ; ' Gibbon V. Paynton, -i Barr, 2298. There is a distinction between the case of a common carrier and a bailee. The latter is only obliged to keep the goods with as much caution as he would keep his own; but a common carrier, in respect of thJ premium he is to receive, runs the risk of them, and must make good the loss, though it happen without his fault; the reward making him an- swerable for their safe delivery. Id. The real reason of the rule, however, is one of public policy, as stated by Mansfield, C. J., in the case of Forward v. Pittard, stqn-a, namely, to prevent combi- nations with thieves and robbers. A hoyman who undertakes to carry goods must deliver them safe at all events, and nothing ex- cuses him but the act of God or the King's enemies. Dale v. Hall, 1 Wils. 281. And the principle of this latter case runs through all the decisions, and marks and limits the common law rosponsiljility of a common carrier. By the civil law, a steamboat destroyed Ijy fire docs not make the owners liable to freighters, if they show the use of proper diligcncj^^^See Hunt v. Morris, 6 Martin's Louis. R. G7G. ^^-^ ' p:iliott v. Ru.<».sell, 10 John. R. 1 ; Story on Railmcnts, s. 512- 525; .'{ Kent. 210; 2 Mans, on Ins. ch. 12, pp. 4S7, ^!»2; Gilmorc v. Carman, 1 Smcdes & Mar. 279; M'Grcgor v. Kilgorc, G Ohio, 35S; Kcmj. v. Conghty, 11 John. 107; M'Artliur v. Scars, 21 Wend. 193; Abbott on Shipp. 424. 108 THE LAW OF SlIirPING. riers by sea, with respect to the preparation of the voyage, and the safety of the goods. And first, a vessel must be provided, tight, staunch, and strong, with evorytliing requisite for the voyage, with a master of due skill, and a sulhcient crew. The owner is bound to see that the vessel is in a suitable condition to transport her cargo in safety. vShe must be in this condition, not only at the commencement of the vojMge, but she must be kept so during its continuance, unless the perils of the sea, or unavoid- able accident prevent. To this extent, the owner is an insurer of the goods. Hence, if they are lost by reason of any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter, and upon the principle that he tacitly contracts that his vessel shall be fit for the use for which he employs her.^ 183. It must be observed, however, that there is a fundamental difference between the carrier's con- tract and the contract of insurance. By regarding them as standing upon common ground, and governed by common principles, a great and radical error is the result. For a breach of the warranty of sea- worthiness in the contract of insurance, is not visited on the insured as a penalty, but operates to avoid the policy by the failure to perform it as a precedent condition.^ But in the contract for the carriage of ' Silva V. Low, 1 John. Cas. 184 ; Putnam v. Wood, 3 Mass. 381 ; The Brig William Henry, 4 Lou. R. 223 ; Bell v. Read, 4 Binn. 127, 3 Kent. 205; Hart v. Allen, 2 Watts' R. 114; Reed T. Dick, Ibid. 479. ' Hart V. Allen, svpra, overruling Bell v. Read, svpra. Unsea- worthiness at the commencement of the risk, is insufficient to bar OF THE CARRIAGE OF GOODS. 199 goods, the seaworthiness of the vessel is an implied condition of the contract, but not a precedent condi- tion, and therefore the want of it does not throw upon the carrier the responsibility of an insurer for all losses that may subsequently occur, no matter from what causes they proceed. A carrier is answer- able for the consequences of negligence, not for the abstract existence of it. Hence, if his vessel is not seaworthy, but the cargo is not injured from that cause, but from a peril of the sea, the carrier is exonerated. If his dehnquency produces no mis- chief, he is not punishable for it. But we shall con- sider this subject more at large in a subsequent chapter.^ The law implies a stipulation on the part of the carrier to keep the vessel in repair during the progress of the voyage. If she meets with an acci- dent, the repair must be effected at the most conve- nient port. If he fails to do this, he is answerable a recovery for a loss ■which happened after an original defect had been removed. Weir v. Aberdeen, 2 Barn. & Aid. 320. And a breach of the warranty has not a retrospective operation so as to avoid the liability of the insurer for a previous loss. Anncn v. Woodman, 3 Taunt. 209. > Post, chap. 12. See also Ripley v. Scaife, 5 B. & C. 107; Garrigucs v. Cox, 1 Binn. 11. 592; Kimball v. Tucker, 10 Mass. 192; Ibid. 483; The Waldo, Davics' 11. 100; The Paragon, Warc'.s II. 322. In the case of the Waldo, siqira, the goods were laden on deck without the consent of the shipper, and without the sanction of custom. It was held, that being so laden, they were at the ri.sk of the carrier, and if lost or damaged, he could not protect himself by .'showing that the loss or damage was occasioned by the dangers of the sea. He must proceed one step further, and show that the calamity by which the lo.ss or damage occurred, would have been equally fatal, even if they had been properly scoured under dock. Sec also The I'aragon, Ware's U. 322. 200 THE LAW OF SIIiri'ING. for any loss that may ensue ; for, as before observed, the vessel must not only be in a suitable condition to receive the cargo, but she must also be in a suit- able condition to retain it, and transport it with safety to the port of destination. The same general principles that govern in policies of insurance, are equally applicable to charter-parties and contracts of aflVeightment.^ * The authorities arc the same as irf^ic preceding note. See also, Lyon v. Mells, 5 East. R. 428; Whitall v. Brig M'llcnry, 4 Louis. II. 223 ; M'Clures v. Hammond, 1 Bay. 99 ; Harrington V. Lylcs, 2 Nott and M'Cord's R. 88. This latter was the case of a boat engaged in the carrying trade, which upset in the Santee Canal, with a cargo of cotton on board, which was thrown into the water. The defendant proved that he was unusually careful, and a skilful patroon ; that his boat was one of the best of her class, competent to carry the cargo then on board, and manned by a competent crew ; that after she entered the Congarcc River, she was lashed to another boat of the same size, to guard against any accidents from upsetting, but that it became necessary to separate them to pass the canal ; and that the day on which they entered the canal, an incessantly heavy rain had fallen, which wet the bales on top. One of the witnesses stated, that it was apparent that the boat was, from that cause, top-heavy after she was separated from the other; that they remained that night in the canal; and that the defendant, to guard against her upsetting, lashed her to the bank, and set poles on the opposite side (a precaution rarely re- sorted to), and remained on board himself until she went over, about midnight, without any obviously recent cause. It also ap- peared, that the cotton injured was at the bottom of the boat, and resulted from the dripping of that on top ; and the probability was, that if it had been laid on the bank and suffered to drain, no injury would have been sustained. The jury found a verdict for the plaintiff for 225 dollars. A motion for a new trial was refused, the Court holding that in addition to the liability of a common carrier for all losses, except those occasioned by the act of God and the enemies of the country, there was in this particular case OF THE CARRIAGE OF GOODS. 201 184. It is proper to observe, that the rule which holds common carriers in vessels upon the high seas to the strict Habihty \Yhich we have defined, ap- plies with all its force, and with equal proprietj^, to carriers upon the inland waters of our countr3\ The vast and increasing produce^ of the interior, finds its way, in a great measure, through these natural avenues of communication to the seaboard, and demands the same protection during this transit as upon the sea.^ 185. When the unseaworthiness complained of is the incompetency of the crew, the owner, to exone- rate himself from liability for loss, must show that in point of flict the crew was competent. In a re- cent case, where the master of a vessel was charged with having sailed on a voyage from the coast of Africa, with a sick and incompetent crew, whereby delay was caused, and damage ensued to the cargo, and a loss of price in selling it, it was held that the libellants (it was a libel in rem) were not entitled to recover simply upon the ground of what subsequently happened. On the contrary, in such a case the ques- tion is, what were the facts on which the master was called to exercise his best judgment at the tim6 he sailed, not wliat liappcned afterwards. It was held too, that the evidence of tlio crew as to their own negligence. The carrier should not have unloaded his boat when the cotton was dripping witli water from the canal. * Harrington v. J^ylca, sitj/ra, ; lluthcrford v. jM'Gowen, 1 Nott &M'Cord, 17; Cook v. Gourdin, 2 Ibid. 10. Th.; latter cases extend the doctrine to even ferry owners, llichards v. Gilbert, 5 Day, 415. 20"2 THE LAAV OF siiirriNG. health, if it can be had, must control, in opposition to the testimony of persons experienced in the trade of the African coast, as to the effect of the given siclcness upon the crew, and the propriety of the master's leaving without additional hands. Their opinion, of course, must depend upon the extent and deG;rce of the sickness, and where these are un- known by the testimony of the attending physician, or other competent person, who was present at the time and place of sickness, the opinion rests upon no data. If, therefore, the testimony of the physician cannot be obtained, then the crew themselves are the best witnesses.' 186. The master, both on his outward and home- ward voyage, in sailing down rivers, out of harbors, or through roads, &c., where, either by the usage or the laws of the country, a pilot is required, is bound to take one on board.^ A vessel coming out of a har- » The Gentleman, Blatchford's Rep. 196. 2 Keeler v. Firemen's Ins. Co., 3 Hill, 250 ; M'Mullan v. U. Ins. Co. 1 Rice (S. C.) R. 248 ; Bolton v. Amcr. Ins. Co., cited 3 Kent, 17G, note {a); Law v. Hollingsworth, 7.T. R. 160; Phil- lips V. Ilcadlam, 2 Barn. & Ad. 384 ; Dixon v. Sadler, 5 M. & Wels. 405. The opinion of Baron Parke, in this latter case, will repay an attentive perusal. His observations relate to the liability of underwriters, but he points out with great clearness the duty of the insured. "If the insurance," he remarks, "attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk, and if the voyage be such as to require a different complement of men, or state of equipment, in different parts of it, as if it were a voyage down a canal or river, and thence across to the open sea, it would be enough if the ves- sel were, at the commencement of each stage of tlie navigation, properly manned and equipped for it. But the insured makes no OF THE CARRIAGE OF GOODS. 203 bor, must have a pilot on board, because the captain has it in his power always to procure one. But when he arrives off a port, as the law compels no one to perform impossibilities, it only requires that warranty to the underwriters that the vessel shall continue sea- worthy, or that the master or crew shall do their duty during the voyage ; and their negligence or misconduct is no defence to an action on the policy, where the loss has been immediately occa- sioned by the perils insured against. This prinei^^le is now clearly established by the cases of Burk v. Koyal Ex. Co., 2 B. & Aid. 72 ; Walker v. Maitland, 5 B. & Aid. 171 ; Iloldsworth v. Wise, 7 B. & Cr. 794 ; Bishop v. Pontland, Id. 219, and Shore v. Bent- all, Id. 798, note. Nor can any distinction be made between the omission by the master and crew to do an act which ought to be done, or the doing an act which ought not, in the course of navi- gation If there be any fault in the crew, whether of omission or commission, the insured is not to be respon- sible for its consequences The only case which ap- pears to be at variance with this principle, is that of Law v. IIol- lingsworth, siq^ra, in which the act of the pilot who had been taken on board for the navigation of the river Thames, having quitted the vessel before he ought (under what circumstances is not distinctly stated), appears to have been held to vitiate the in- surance." But Baron Park considered this case to be overruled by the later cases, and said that he could not help thinking that the absence, from any cause to which the owner was not privy, of the master, or any part of the crew, or of the pilot, who may be considered as a temporary master, after they had been on board, must be on the same footing as the absence, from a similar cause, of any part of the necessary stores or equipments originally put on board. The great principle, he said, established by the more recent decisions is, that if the vessel, crew, and equipments, be originally sufficient, the insured has done all that he contracted to do, and is not responsible for flic subsequent deficiency occasioned by any neglect or misconduct of the master or crew; and this ])riiKiplo prevents many nice and difhcult inquiries, and causes a more com- plete indemnity to the insured, which is the object of the contract of insurance, o Kent, 175. Abbott on Sliipp. 422. But see The General Mutual Ins. Co. v. Sherwood, Law Hep. (May No.) 073. 204 THE L\vr OF siiirriNG. the master use all reasonable cflbrts to obtain one. In every well-appointed port where pilots are to be had, a vessel arriving upon pilot ground, is bound to make the approach carefully. If in the night, the master must hold out a light for a pilot, and wait a reasonable time for one, and approach one if he can do it with safety. If he attempts to enter the port without a pilot, or steers negligently or rashly in approaching the ground, when it is unsafe to navi- gate without a pilot, and damage ensues, the under- writers are discharged from liabilit}^^ 187. If, however, the vessel pass uninjured through the dangers, to avoid which a pilot is usually em- ployed, and the loss happens at a point beyond which the pilot's services cease to be necessary, the insured would be entitled to recover. This was the position taken by the Court of Appeals of South Carolina, in the case of M'Mullan v. U. Ins. Co.^ It * Phillips V. Headlam, 2 B. & Ad. 384 ; Bolton v. Am. Ins. Co., supra; M'I\Iullan v. U. Ins. Co., 1 Rice's S. C. R. 248. " Supra. See also, Kecler v. Firemen's Ins. Co., 3 Hill. R. 250; Am. Ins. Co. v. Ogden, 15 Wend. 532. Where a vessel arrived off a harbor towards evening, there being indications of bad weather during the night, and the captain unahle to obtain a pilot, determined to follow a pilot-boat up the bay, and in so doing the vessel ran aground; such grounding cannot be imputed to the fault or misconduct of the captain. Whilst aground, the captain ordered the deck load, consisting of casks of brandy, to be thrown overboard. But this being impossible, their heads were knocked out to allow the liquor to escape through the scuppers. It was held, that such a state of facts would not sustain a charge of want of skill, or of misconduct, against the captain ; and that the brandy was lost by " peril of the sea." Van Syckel v. Ewing, Oabbe's R. 405. OF THE CARRIAGE OF GOODS. 205 was also considered by the Court, that the employ- ment of a i^ilot in coming into or leaving a particu- lar port, is not a part of the seaworthiness of the vessel. " Nothing/' said Judge O'Neall, in deliver- ing the opinion of the Court, " c^in enter into that which is not for the whole voyage. The business of a pilot is merely temporary. He is a part of the crew of a vessel for only a few miles, or a few hours. He navigates her only occasionally. Under such cir- cumstances, it would be an abuse of terms to say that a competent pilot was necessary to make a ves- sel seaworthy. The true notion seems to me to be this : if a vessel without a pilot sustain injury in entering or leaving a harbor, where it is customary to have a pilot; that then such injury does not come within the perils insured against. It is not a peril of the sea; it is a loss from the bad navigation of the ves- sel, and is to be set down to the fault of the master, and consequently the owners would be liable for it. The general rule is, if the owners would not be liable for the loss, that then the insurers are.''^ 188. In rivers, roads, &c., where it is not cus- tomary to take a pilot on board, the captain or mate being duly qualified, or any other competent person may be relied on. If, however, in such a case, in- jury arises from want oC ordinary prudence in the * The position assumed in this case is a novel one. Tt seems to be taken for granted in the books of reports, and by tlie text wri- ters, that a vessel is not seaworthy, within the implied warranty, if she proceeds without a pilot, where it is customary to take one. This is the first and only case that I have been able to find, where a contrary doctrine has been laid down. 20G THE LAW OF SHIPPING. navic:ation of the vessel, the owners are liable to the shippers.' ISO. In respect both to the ladnig and carriage of the goods, the master is chargeable Mith tlie most exact diligence. His responsibility with respect to them begins when that of the wharfinger ends, and when they are delivered to some accredited person on board the ship. If he receives them at the quay or beach, or sends his boat for them, his responsibility attaches from the moment of the receipt.^ Not only is the master responsible with respect to the safety and security of the goods, but, as we have had occa- sion elsewhere to observe, the vessel is also liable. It stands as the shipper's security, and is by the ma- ritime law hypothecated to him for his indemnity. The duties of the master as carrier extend to all that relates to the lading, transportation, and delivery of the goods. And for the faithful performance of those duties the ship stands pledged, as well as the master and owners personally.^ 190. The goods must be safely stowed under deck. That is the contract implied by the bill of lading. If they are carried on deck, without the consent of the shipper or the sanction of custom, the carrier is responsible for their safety; and if they are lost from the dangers of the seas, he cannot protect himself ' Keelcr v. The Firemen's Ins. Co., 3 Hill, R. 250. a The Waldo, Davies' Ad. R. IGl ; 3 Kent's Cora. 206; Abbott on Shipp. 423 ; Molloy, book 2, chap. 2, sect. 2; Roccus, note 88. =» The Paragon, Ware's R. 322 ; The Rebecca, Id. 188 ; The Waldo, siqyra. OF THE CARRIAGE OF GOODS. 207 from responsibility by showing that they were lost or damaged from that cause. He must go further, and show that the calamity would have been equally fatal, even if they had been secured below deck. If, from stress of weather, it becomes necessary to throw them overboard for the common safety, this will not be a loss to be divided with the rest of the cargo, by a general average, but will be the particular loss of the master and the ship-owners, who are responsible for his acts.^ 191. The bill of lading binds the master to secure- and carry the goods in the usual way, that is, under deck. Where the contract of affreightment is verbal, it will, in the same manner, be presumed to be a con- tract to stow and carry the goods in the usual way, unless a custom or different agreement is proved. A local custom, in order to be binding on the parties, and withdraw their contracts from the application of the common law, must be so generally known and understood that it may fiiirly be presumed that all persons engaging in that particular trade are ac- quainted with it and assenting to it, as they are pre- sumed to know the general law. The presumption then will be, that they form their engagements with a silent reference to the special custom. And the custom, to be obligatory, must not Ijc a loose prac- tice, but precise, delinite, and certain, so as to supply the place of the common law in the given case, and ■ Sec the foregoing autlioritics and Abbott on Sliipp. p. 423, note (2). The reader will find tlu; cases, respecting ooninicrcial usages, numerously collected and ably analyzed in 1 Smith's Lead- ing Cases, pp. 582, 50.5. (Last American Edition. ) 208 THE LAW UF SlIli'l'ING. be ciipable of being applied to the contract, and de- fining and fixing the rights of the parties under it. Such a custom, when it is established, and so gene- rally known and recognised that parties are pre- sumed in their engagements tacitly to refer to it, applies itself to the contract, and forms, as it were, the complement to the terms in which the obligation is expressed by the parties, and within its proper sphere is equally binding with the general law.' 192. If, however, there is a written and express contract, by which the parties have fixed and de- fined their obligations and duties, it cannot be con- trolled or varied, or contradicted by a usage or cus- tom; for that would be, not only to admit parol evidence to control, vary, or contradict written agreements, but it would be to allow mere presump- • The Paragon, Ware's R. 322 ; The Rceside, 3 Sum. 507. " The true and appropriate office of a usage or custom," said Judge Story in this case, " is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipuLations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words in a given in- strument, when the word or words have various senses, some com- mon, some qualified, and some technical, according to the subject- matter to which they are applied. But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and, a fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary or control a usage or cus- tom ; for the latter may always be waived at the will of the par- tics." See also The AValdo, Davics' 11. IGO; Vcrnard v. Hudson, 3 Sum. R. 405. OF THE CARRIAGE OF GOODS. 209 tions and implications, properly arising in the ab- sence of any positive expressions of intention, to con- trol, vary, or contradict the most formal and delibe- rate written declarations of the parties.' Hence it is, that evidence is not admissiblte to vary the com- mon bill of lading, by which the goods were to be delivered in good order and condition, the danger of the seas only excepted, by establishing a custom that the owners of packet vessels, on that particular route, should be liable only for damage to goods occasioned by their own neglect.^ 193. If there be a clean bill of lading, that is, if it is silent as to the mode of stowing the goods, and contains no exceptions to the master's liability, but the usual one of the dangers of the seas, or if there be a charter-party in the like form, the law presumes that the goods are to be carried under deck. The usual, and only safe mode of carrying goods, is under deck, and when the contract is entered into, it is" presumed to be the intention of the parties that the goods shall be stowed and carried in the usual wa3"j unless there is a special agreement to the contrary. This is a condition that is silently understood by the parties, and implied by the law. A bill of lading, therefore, imports, unless the contrary appears on its face, that the goods arc to be safely secured under deck. And no usage can be permitted to control, vary, or contradict that meaning.^ 1 Vcrnard v. Ilud.son, 3 .Sum. 11. 405; Knox v. The Schooner Ninctta, Crahhc's R. 5.34. « Ihid. ' The Waldo, Davics' II. IGO; Curti.s's Merchant Seamen, 213 ; The Ilecsidc, 2 Sum. 322; Vfrnnrd v. Hudson, 3 Sum. 11. W't ; Barber v. Urace, 3 Conn. !). 11 210 Tin: LAW of siiirriNG. 194:. Tlie presumption of law, however, in such a case may be rebutted, not only by showing a posi- tive agreement between the parties that the goods are to be carried on deck, but from other circum- stances, such, for example, as the goods paying the deck freight only. The admission of proof to this eflect is perfectly consistent with the rules of law ; for it neither contradicts nor varies anything con- tained in the bill of lading ; but it simply rebuts a presumption arising from the ordinary course of busi- ness/ And where goods are shipped under the com- mon bill of lading, at an under-deck freight, but are carried on deck, and finally delivered without damage, the ship-owner is entitled only to a deck freight.^ 195. It is then only in the case of a parol ship- ment, that the master is allowed to show a local cus- tom to carry goods on deck in the particular trade. But it must be a custom so generally known and recognised, that a fair presumption arises that the parties in entering into their engagement, did it with a silent reference to the custom, and tacitly agreed that their rights and responsibilities should be deter- mined by it.^ 196. If goods are put on board without the know- ledge of the master, he may put them ashore. The ' Vernard v. Hudson, supra. If the presumption of law can be rebutted by an inference arising from one fact, viz., the payment of half freight, why may it not be rebutted by an inference arising from another fact, that is, the existence of an established custom? ^ Ibid. 3 The Paragon, Ware's R. 322 ; Curtis's Merchant Seamen, svpra. OF THE CARRIAGE OF GOODS. 211 contract of affreightment, like all other contracts, requires for its completion the consent of parties, either express or implied. In such a case, therefore, there is no contract, and consequently no obligation on one part or the other ; and hence the master, who finds the merchandise in his vessel, may put it ashore, and charge the expense of unloading to the owner. But if the goods are not discovered until after the ship sails, the master may discharge them at an in- termediate port, provided the vessel is overloaded. He is bound, however, to leave them in a place of safety, and give the owner notice. If, on the other hand, the vessel is not overcharged, he must carry them on to the port of destination. These are the principles laid down by Pothier and Valin,^ " and are recommended," says Judge Ware,^ " as well by » Pothier, Traite de Contrat de Cbarter-Partie, No. 10, 12 ; 1 Valin, Gil. Sec also Ordonnance de la Marine, Liv. 3, Tit. 3, Art. 7 ; Code do Commerce, No. 292. ^ The Huntress, Davies' R. 82, 90. The Huntress was, in the strictest sense of the word, a common carrier, making her trips daily between Portland and Boston. " Ilcr goods on freight were owned by a great variety of persons, were brought in small quan- tities, loaded in a hurry, ordinarily without the formality of a bill of lading, and often, as in this case, accompanied by their owners. The owners of the boat, by the nature of their employment, en- gaged, and wore bound to take the goods of all persons who offered them, without any special contract for that purpose. Holding themselves out generally as ready to carry freight or passengers, the public have a right to take them at their offer, and they arc not at liberty to refuse without good cause; and those who wish for a passage, or have goods to be transported, need not take the trouble to make a contract beforehand. They understand that the master is bound to allow them a pas.sage, and to carry llicir mer- chandise, unless lie has some valid excuse, and thry go drnvn to the boat prepared to go on board, and take their goods with them. 212 TUE LAW OF SlIirPING. puljlic conveiiioiice as by their pure and honorable morality." 197. It is the duty of the shipper or owner of goods to have them properly marked, and present them to the carrier or his servants, to have them en- tered in his books. If he omits to do this from neglect or otherwise, and there is a misdelivery and loss in consequence, without any fault of the carrier, he must bear the loss.^ 198. Nor is the owner of the ship responsible for any loss or injury to the goods, if they were brought on board by the master furtively and beyond the scope of his authority, unless, indeed, he afterwards adopts the act of the master.' So, too, if the shipper consigns his goods to the master for sale and returns, in proceeding to dispose of them, he does not act Now it appears to me, that if the goods arc put on board in the ordinary manner, a contract results from the fact itself. In the pre- sent case, the owners of the boat held themselves out as ready to carry freight for all persons generally, and if the libellant had his goods carried to the wharf, and they were taken on board in the usual course of the business, as other goods were, he accepted their offer, and it appears to me the contract was complete ; but if it was not, it was ratified and made perfect by the payment and acceptance of the freight." This was the decision of the Roman law. " Whether the goods," says Ulpian, "are shipped by a bill of lading or not, the contract is complete by the simple fact that they are taken on board ; the carrier becomes responsible for their safety." But this must be understood of goods put on board in the usual way, and not clandestinely or furtively. See post, Tit. "■ Conveyance in a General Ship." * Ibid. 2 Walter v. Brown, 11 Mass. R. 99. OF THE CARRIAGE OF GOODS. 213 under any authority derived from liis appointment as master, but in an entirely new character, that of supercargo or factor. And his duties and KabiUties under these two characters are as distinct and inde- pendent as they would be if the trusts were confided to different persons. In all that relates to the trans- portation of the goods and navigation of the ship, he acts as master, and all that he does in relation to the disposition of the merchandise, is referred to his character as factor. His acts are imputable to the ship-owners only so far as he acts as master. Their responsibility does not go beyond that limit.^ A& consignee, the master neither represents the vessel nor its owners. And for any want of fidelity in that trust, his employers have the same remedy against him as they would have against any other person, and no other. As the ship-owners are not liable in personam, neither is the vessel liable in rem.^ 199. Where there is a usage well known and established, not only as to the manner of stowage, but as to the different articles and products to be stowed together, — such, for instance, as the stowage of barrels of flour and bags of corn upon the top of hogsheads of sugar, — both the carrier and the shipper are bound by it. Tlic carrier is bound to stow in the accustomed manner, and tlie shipi)er is charge- able with notice that his goods will l)e thus stowed. « The Walflo, Davios' R. 100; Williams v. Nichols, 13 Wend. R. 58. Sf.c also K«-iTip V. Caughty, llJoliu. 11. 107 j Emory v. Hor- sey, 4 Grocnl. 407. 'The Waldo, sujjra. 214 THE LAAV OF SHirriNG. If he wishes them stowed in a diflerent inaiiiier, he is bound to give the requisite instructions. If he gives no special instructions, and his goods are stowed in accordance with the usage, he is deemed to have assented to the mode of stowage, and cannot, in case his goods are injured on the voyage in consequence of the mode of stowage, set that up as a ground of complaint, or as a foundation for depriving the owners of the vessel of their freight.' 200. In the absence of any established usage as to the manner of stowing goods, or as to the different articles to be stowed together, it is nevertheless the duty of the master so to stow and arrange the dif- ferent articles of which the cargo consists, that they may not be injured by each other or by the motion or leakage of the ship.' If damage arises from bad stowage or cooperage, the ship is responsible for it. Thus, where a ship sailed from New Orleans for New York, with a cargo of tobacco in hogsheads, and lard in barrels, and when seventeen days out, without having met any very rough weather, lard was pumped from her, and the tobacco damaged by the lard running into it, it was held, that the damage was occasioned by some cause other than the perils of the sea, such as bad stowage or cooperage, and the ship was liable for it. It was also held, that if, under such circumstances, a peril of the sea, subse- ' Baxter v. Lcland, Blatchford's R. 526 ; Barber v. Bruce, 3 Conn. 9. "^ Abbott on Shipp. 425 ; Swainston v. Garrick, Law Journal, N. S. vol. 2, 255 ; The Newark, Blatchf. R. 203 ; The Recside, 2 Sum. 567. OF THE CARRIAGE OF GOODS. 215 quent to the first pumping of tlie lard, and wliolly unconnected with the fault of the carrier in the de- fective stowage or cooperage of the lard, is set up as the cause of the damage, the evidence should be clear and undoubted in order to exonerate the carrier from liabiUty.' 201. If by usage or agreement, the stowage of the cargo is to be performed by persons hired by the shipper, or if the shipper appoints his own stower, the master is exonerated from his liability. And if the freighter, by a verbal agreement with the owner, under- takes to appoint his own stower, and he acts as such, the mere silence of the charter-party, subsequently entered into, does not sulyect the master to his ori- ginal liability.^ " The master," says Lord Lyndhurst, ' The Newark, ^upra ; see, also, The Reeside, supra. It was held, in this latter case, that the mere rolling of a vessel by a cross 8ca is not a danger of the sea that will excuse the carrier. " Bad stowage," says Mr. Curtis, " may be either from an improper and defective arrangement, so that the goods arc damaged by contact or by the leakage of the vessel ; or from taking on board goods packed or coopered improperly, such as oil or vitriol, whereby other goods are injured through a leakage of the casks,' occasioned by any stress of weather that is not fairly within the meaning of ' perils of the seas.' These defects the master undertakes by his contract, whether written or verbal, to provide against; and the meaning of the exception, 'perils of the seas,' which is ordinarily introduced into bills of lading, and which the law implies, in the absence of a written contract, includes only those injuries occa- sioned by some irresistible force, or some overwhelming power, which cannot be guarded against by the ordinary exertions of human .'•kill and prudence." IMcrrliant Seamen, 213, 214 ; see the recent cases of Clark v. Barnwell, 12 How. It. 273, and llich v. Lambert, Id. 347. » Swainston v. Tiarrick, stijira. 216 THE LAAV OF SlIIl'l'ING. " as servant of the owner, is bound to superintend the stowage, and if in consequence of improper stow- age the owner has been called upon, and has satisfied any claim for damages, the master is liable to him. But where the master is told by the owner, that some one will come to superintend and do that, which would otherwise be his duty, he is exonerated. If afterwards that intention is changed, the owner should communicate it to the master."^ 202. If the goods are stowed according to the usage, or if the shipper is warned as to the mode of stowing, damages cannot be recovered for any injury occasioned by bad stowing.^ The usage of trade is to carry salt between decks, and the master is not culpable for stowing it in that way, if he takes good care to stow and pack it well, and secure it with proper dunnage. When this is done, and damage is occasioned by the drainage of the salt coming in con- tact with sea water, shipped from the violence of a storm, or stress of weather, it will be attributed to a peril of the sea, and the carrier is exonerated. Where the injury to the goods is of such a nature, that it must necessarily have accrued in the course of the voyage, the onus prohandl is upon the carrier, in order to excuse himself, that it Avas occasioned by one of the perils of navigation within the exception in the bill of lading. If he shows that the damage was occasioned by the effect of humidity and damp- ness, which in the absence of any defect in the shij^, > Swainston v. Garrick, svpra. 2 Major V. White, 7 Carr. k P. 41 ; Barber v. Bruce, 3 Conn. 9 ; Baxter v. Lcland, Blatcbf. R. 520. OF THE CARRIAGE OF GOODS. 217 or navigation of the same, or in the stowage, is one of the dangers and accidents of the seas, then he is not liable.^ We may here observe, that, at common law, if a person ship goods on board a vessel, know- ing that it is chartered, the consignee of the goods can maintain no action against the owner of the ship, if the goods be injured by bad stowage.^ But in Admiralty, the ship is specifically liable, no matter whether let by a charter-party or not, and equally so, whether the shipper knows that she is chartered or is ignorant of the fact. t 203. It is in all cases the duty of the master to provide ropes, &c., proper for the actual reception of the goods into the ship, and for their safe unlading. He is responsible for the sufficiency of the tackle which he uses. If the goods, a cask, for instance, is accidentally staved in letting it down into the hold of the ship, or in unlading it, the master must an- ' Rich V. Lambert, 12 IIow. U. S. R. 347 ; Clark v. Barnwell, Ibid. 272. If the damage has proceeded from an intrinsic prin- ciple of decay, naturally inherent in the commodity itself, whether active in every situation, or only in the confinement or closeness of the ship, the merchant must bear the loss as well as pay the freight; as the master and owners arc in no fault, nor does their contract contain any insurance or warranty against such an event. Abbott on Shipping, 517 ; 12 East, 381 ; 4 Campb. 119 ; () Taunt. 05. But if it can be shown that it iniglit have been avoided by the use of proper precautionary measures, and that the usual and customary mcthodM fur this purpose have been neglected, they may still bo held liable. And the same rule applies in the case of da- mage, on account of the humidity and dampness of the ship, which is, more or less, incident to all vessels engaged in trade or naviga- tion, especially upon the high seas. Clark v. Barnwell, siqmt. * Major V. White, supra. 218 . THE LAW OF siurriNG. swer lor the los,>^.' So, too, he must furnish the ship uith proper dunnage (pieces of wood pUiced against the sides and bottom of the hold) to preserve the cargo from the effects of leakage, according to its nature and quality.^ 20-1. More goods must not be taken on board than the ship can conveniently carry, leaving room for her own furniture and provisions of the crew, and for the proper working of the vessel. If the master does so, he and his owners would be liable for the consequent damage. If he agrees with a shipper that he will take in only a certain cargo, and vio- lates his contract, he assumes, it has been held, the risk and responsibility of an insurer. Thus in the case of The Schooner Ninetta,' grain was shipped on board the vessel, on condition that no other cargo should be taken, and that it should be carried di- rectly to the port of destination, without deviation. The master however deviated, and took in additional cargo. It was alleged, that in consequence the grain was damaged. " The greatest difficulty I have had in this case," said Judge Randall, "has been to de- termine whether this damage was occasioned by the fault or improper conduct of the captain, in putting into the Piankitank ; but when I reflect that this was in violation of an express contract with the ' Abbott on Sbipp. 42.5 ; see Mott v. Laraway, 14 Wend. 225. 2 Abbott, supra. lie cites Ordin. of Hotterdam, 2 Magcns, 101, art. 125, 12G. 3 Crabbe's R. 534; see also Crosby v. Fitcb, 12 Conn. 410; Davis V. Garrett, G Bing. 716. The reader will find the question adverted to in the text, more fully considered in the chapter upon the Carrier's Responsibility, post, chap. 12. OF THE CARRIAGE OF GOODS. 219 shipper, who was put to considerable trouble and ex- pense in order to obtain the exclusive use of the ves- sel, I think the party who violates such a contract, and takes in additional cargo without the consent of the first shijDper, assumes the risk and resj^onsibility of an insurer, and should be liable for any loss that may afterwards occur." But this position has been questioned, and the authorities are in conflict. As- sumpsit was brought in the District Court of Phila- delphia for the recovery of the same freight that was libelled for in the Admiralty. There w^as an appeal from the decree in the Admiralty to the Circuit Court. While the appeal was pending, the cause came on for trial in the District Court of Philadel- phia, and the verdict was for the plaintifl'. Upon a writ of error from the District Court, it was held by the Supremo Court of Pennsylvania, that a decree in Admiralty appealed from, could not be pleaded as a former recovery, and also, that an unnecessary de- viation, and injury ensuing to the cargo, is no de- fence to an action for freight, except so far as the loss was occasioned ]jy the deviation, and that where the master of a vessel who has contracted to carry no other cargo, and in violation of his contract takes additional cargo, an injury ensuing is no defence, except so far as the damage resulted from the breach of contract.' The master must not take on l)oard any contra- band goods, wliereby the sliip and other parts of the cargo may be liable to forfeiture or detention.- A « Soutcr V. Bayniorc, 7 IJarr, 415; sec also Hart v. Allen, 2 Watts's 11. Ill; Hood V. Diok, 8 Watts, 480. ' Abbott on Sliipping, p. 425. 220 THE LA"\r OF siiirriNG. cliartor-party, by which the owner agrees to receive on board " all such lawful goods and merchandise" as the charterers " think proper to ship," for a cer- tain sum, to be " in full for the entire capacity of the ship out and home," must be construed in con- formity to the principles of law, with respect to the lading of a vessel.' 205. The stipulation to receive all such lawful goods as the defendant offers to put on board is an ordinarj' one in the printed forms, and refers to their kind and quality, rather than to their amount and quantity. If lawful, that is, if not contraband, nor diseased, they are to be received, whether heavy or light, bulky or compact, agreeable or disagreeable. This is the reasonable signification applicable to such a stipulation. If another interpretation were adopted, and the owners were subjected to receive any quan- tity of goods, however heavy, which the shippers might choose to offer, the vessel might be so over- loaded with heavy articles as to sink at her anchor- age, before she was filled, or go down in the first gale, which would involve the absurdity, that the parties agreed to the insertion of a clause, and that an ordinary one, with a meaning attached to it, which would be likely to produce at times a total loss of both vessel and cargo.^ 20G. The proper limitation and signification of the ' Weston V. Minot, 3 W. & M. R. 43G. » Ibid, supra ; Jacobson's Sea Laws, p. 94, and note ; sec, also, Micheson v. Xicoll, 19 L. T. 229; S. C. American Law Reg. 49. OF THE CARRIAGE OF GOODS. 221 words, "entire capacity" of the vessel, are, lier en- tire capacity without danger to her safety. This construction, in case of light goods, might fill her entirelj-, without such danger, and without making her too deep, whereas, in case of very compact and heavy goods, if filled entirely, she might be so deep as probably to sink in the first gale or strong swell. The place and season, when and where the voyage is to be performed, the ordinary depth of loading ves- sels of her size, tonnage, shape, and draft, when em- ployed in the particular trade, are some of the elements to be considered in forming a correct judg- ment what a vessel can carry safely. Whether there is an express agreement in the charter-party, that the vessel shall receive no more than she can safely carr}- or not, is immaterial, for the law will imply that.' * Weston V. Minot, supra. Sec also, Hunter v. Fry, 2 Barn. & Aid. 421. " It is usual for the master or mate," says Mr. Abbott, Sliippini,', p. 424, "■ to sign a receipt for goods at the time of the ship- ment, and deliver it to the shipper. AVheu this is done, the master must take care not to deliver a bill of lading until a receipt is returned to him ; for otherwise he may place himself under a twofold respon- sibility; a responsibility to the shipper, in case he shall require the goods to be delivered to his own order, and have a legal right to do so; and a responsibility to a holder of the bill of lading, who may be induced to purchase the goods on the faith of it. And if such a receipt is rcfjuircd, it ought to bo given, and if not given, still the master must take care not to deliver a bill of ladinu to any person but the shipper without his orders, for if lie does, ho may incur a twofold responsibility in the same way, as if the rc- quircfl receipt had been given." lie cites the following authori- ties : Craven v. llyder, Taunt. 4^.'}, 2 Marsh, 127; Ilawes v. Watson, 2 JJ. k C. 010 ; Buck v. Uatlicld, 5 JJ. k A. (;:;2. With respect to overlading the ship, Mr. Lawes, in his work on Chartcr-Partics, p. 37, observes as follows : "It is said by Malyne, 222 THE LAAV OF siiirriNG. 207. In respect to contriibaiid goods and the ship's docunieiits, it will be necessary to examine the ge- in his chapter on affreightracnt by charter-party, that if the master take on board more hiding than the acknowledged burden of the ship, especially if it consist of other persons' goods than the freighters, he loses his whole freight, for by this he may endanger the merchant's goods which he has contracted to carr}'; and in such case, if any part of those goods are cast overboard in a storm, the loss shall not be made up by contribution or average of the merchant, but by the master's own purse. Mai. 99. Malyne also further lays it down, that if any man compel the master to over- burden the ship or boat, he may be accused criminally, besides being compelled to pay the damages happening thereby. Id. Nearly to the same effect, Beawes observes, that if the master lets out his ship, and afterwards secretly takes in other goods unknown to the first freighter, by the law marine, he loses his freight; and if it so happen that any of the freighter's goods, for safety of the ship, be cast overboard, the rest shall not become subject to the average, but the master must make the damage good ; though (ac- cording to Beawes), if the goods be brought into the ship secretly and unknown to him, it is otherwise. Beawes, 137. The obser- vations of both these writers seem to be founded upon one of the laws of Wisby, which provides, that the ship being laden, the master must not take in any more goods without the merchant's leave ; and if he fails therein, in case there be casting of the goods overboard, he shall be a loser by so much more commodities as he has taken on board over and above what he ought. There- fore, upon the lading of the ship, he ought to declare his intention to take such and such goods. Leg. Wis. 40. But though this seems to be the marine law upon the subject, the rule of the com- mon law, in the absence of any express provision in the charter- party on the subject, in analogy to other cases, seems to be this : that if the master overloads the ship by putting on board more than she can reasonably stow and carry, over and above her tackle, &c., by which a damage happens to the freighter, his so doing would be a breach of the implied covenant in the charter-party, not to do so, by the words, ' that he will load and stow all such goods as shall be sent alongside, not exceeding what the ship can reasonably stow and carry,' " &c. OF THE CARRIAGE OF GOODS. 223 neral doctrines of foreign Courts. I shall do this as brief!}- as consists with the requisite particularity. A neutral nation has nothing to do with the war be- tween belligerents, and is under no moral obligation to abandon or abridge its trade. But on the other hand, that law which coerces the action of nations as well as individuals, the law of necessity, gives to the powers at war, the right to seize and confiscate such goods as the law of nations deems to be contra- band. And this they may do upon a principle of self-defence. But as has been justly observed, the right of the hostile power to seize, does not destroy the right of the neutral to transport. A trade by a neutral, therefore, in articles contraband of war, is a lawful trade, though a trade from necessity, subject to inconvenience and loss.^ 208. As, therefore, a trade in contraband goods is > Seton V. Low, 1 John. Cas. 1. In this case, which was an action on a policy of insurance, it was held, that articles contra- band of war were lawful goods, within the meaning of the policy, that goods not prohibited by the positive hiw of the country to which the vessel belongs, arc lawful ; and that the insured are not bound to disclose to the insurer, that the goods insured are contra- band of war. See to the same effect, Barker v. ]Jlakes, 9 East, 283. But in Ivichardson v. Maine Ins. Co., G Mass. 102, it was held, that if goods contraband of war are on cargo, the insurer is not responsible for their capture and condemnation on that ac- count, unless cither with a full knowledge of the nature of the gf)ods, and of the voyage, or by an express undertaking, he shall insure them against such capture. And the .same doctrine will be found in the Hubscquent cases in the same volume of Reports, pp. 122, 121, 277. IJut sec Juhel v. Khitirlander, 2 John. C,ns. 121, S. C. 487 ; Skidmorc v. Dordoity, 2 John. ('as. 77 ; I'liillips r.n Ins., vol. i. 100, ct acq.; The 8antissima Trinidad, 7 Wheat. 283. 22-4 TUE LAAV OF SHIPPING. not prohibited bv the law of nations to a neutral, it follows that such trade is lawful, and being so, the insured is not bound to disclose to the insurer, that the goods insured are contraband of war.^ Mr. Jus- tice Story, in his last edition of Abbott on Shipping, proposes a question, which would seem to be solved by the foregoing principle.^ The question is this : when contraband goods are taken on board with the consent of the owner of the ship, how far, if they should subject the other innocent shippers to deten- tion or expenses, the owner of the ship would be liable to them in damages. That, he observes, may depend eventually upon the consideration, whether there be any implied warranty on the part of the ship-owner, that no contraband goods shall with his knowledge be j^ut on board. If indeed any loss occur by the wrongful act of the master or owner in the course of the voyage, as in case of fraudulent conduct in case of capture, &c., the shij)per is entitled to an indemnity. But the point here is, whether in a shipment in a general ship, the ship-owner takes any risk as to any part of the cargo being contra- band or not, or the shi^oper takes that risk on him- self. 209. If the principle that governs in analogous cases, that is to say, in cases of insurance, is appli- cable to the relation between the carrier and the > Authorities the same as in the foregoing note. '* Page 426. The term contraband originated during the Cru- sades, when the Genoese and Venetians conveyed munitions of war and necessaries to the Saracens ; and the Pope placed those who engaged in the trade under the hann. Thus it was a trade contra baijnum. Jacobsou's Sea Laws, p. 97. OF THE CARRIAGE OF GOODS. 225 shipper, and we apprehend that it is, then the car- rier is exonerated from any loss that may occur to a shipper, from a part of the cargo being contraband. His taking contraband goods on board is Lawful. The shipper knows or is presumed to know that fact. He takes his choice of shipping his goods in company with such a cargo, or putting them on board some other vessel. He voluntarily does that which may subject him to loss or inconvenience, and he must abide the result of his own conduct. But Roccus determines otherwise in the case of prohibited arti- cles, and justl}', for in that case it is unlawful to put them on board. ^ 210. The capture of contraband goods on board a neutral ship, does not affect other innocent goods on board, unless they belong to the same owner. To * Note 7G. The case of prohibited articles is widely different from contraband. In the former case, the prohibition makes the trade absolutely unlawful, and, therefore, the master is culpable, if he takes on board prohibited goods which may subject the inno- cent part of the cargo to confiscation or inconvenience. lie is justly held liable for any injury that may result fi-om so doing. In the latter case, the trade is not unlawful, and for the reasons stated in the text, we do not think the master culpable, and there- fore liable for consequent loss or injury to the innocent portion of the cargo, from engaging in such trade. But Slracxha holds the opposite doctrine. " If a .ship," he says, "has been detained and prevented from performing her voyage by tlic fault of the master, as for instance, '/ he luid contruhand goods on hoard, hr. is respon- sible to Oie frritjhtcr or shipper. For it is but justice that he who committed the fault should suffer the loss." Stracehn, Part 3, de Nnvibnsj § 25, p. 420. It' the view we have taken (if the subject ia correct, then the master is not in ddidOf and, therefore, not justly chargeable. 15 22C) TllK LAA\' OF SHIP PING. . escape from the contagion of contraband, the inno- cent articles must be the property of a difi'erent owner.' The ordinary rule of Prize Courts extends the penalty of contraband to all the property of the same owner, involved in the same unlawful transac- tion. This rule of course involves the ship in the penalty of contraband, as well as the innocent por- tion of the cargo, whenever the ownership of the whole propert}^, including the contraband, which works the condemnation, is vested in the same person .- 211. When, however, the contraband goods be- long to a part owner of the ship, the contraband penalty, or rather the penalty of contraband, affects only the interest of the part owner in the ship. His co-tenants are not affected. When the tainted goods ' The Staadt Embden, 1 Rob. Ad. R. 26. 2 The Sarah Christina, Ibid. 237 ', The Neutralitet, 3 Rob. 295. " The modern rule of the law of nations," observed Sir W. Scott, in this case, *'is certainly, that the ship shall not be subject to condemnation for carrying contraband articles. The ancient prac- tice was otherwise, and it cannot be denied that it was perfectly defensible on every principle of justice. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effecting that illegal purjiose cannot be innocent. The policy of modern times has, however, introduced a relaxation on this point; and the general rule now is, that the vessel does not become confiscable for that act. But this rule is liable to exceptions. When a ship belongs to the owner of the cargo, or when the ship is going on such ser- vice, under a false destination, or false papers : these circurastance,s of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient one." See also, The Jonge Tobias, 1 Rob. Ad. R. 329. OF THE CAERIAGE OF GOODS. 227 are unclaimed by their owner, who is known by the ship's papers, or other sufficient evidence, to be part owner of the ship, both will be condemned, that is, both the goods and the part-ownership.^ 212. Goods contraband of war are of two descrip- tions : munitions of war, the property of a neutral, bound from a neutral port to the territory of either of the belligerents, after the existence of the war is known ; and every species of neutral goods, l^ound from a neutral port to a port belonging to either of the powers at war, and known to be blockaded hy the other power. The principle, therefore, on which a belligerent will capture and condemn as prize the goods of a neutral, bound to a port known by him to be blockaded, arises from the consideration, that all such goods are contraband of war.^ * The Jonge Tobias, sujtra. = Ilichardson v. Maine Ins. Co., G Mass. 102. It is a well-esta- blished rule, that a neutral carrier of enemy's property is entitled to his freight. ]5ut to this rule there arc many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Ilencc, the carrying of contraband goods to the enemy; the engaging in the coasting or colonial trade of the enemy; the spoliation of papers, and the fraudulent suppression of enemy interests, have been held to afl'oct tin; neutral with the forfeiture of freight; and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the penalty of confiscation of the vessel ha.s ahso been inflicted. The Commcrccn, 1 "Wheat. 1\. 882,387; The Sarah Christina, 1 Ilob. 2.'!7; The Ilaase, Ibid. 288; The Emanuel, Ibi.l. '2!Mi; The Tmmanuel, 2 Rob. 101 ; The Atlas, Ibi.l. 2!t!); The Rising Sun, Ibid. 104 ; The Maddunna del Burso, 4 Kub. 1 The rciidcr will find in 3 Kent, 312, a very satisfactory state- ment of tlic law, with respect to deviation, as it affects the con- tract of insurance. The same principles arc equally applicable to the relatifin between the shipper and .ship-owners. 8ce also Cod- wise V. Hacker, 1 Caincs' K. .020, as to what acts will .niKiunt (o a justification or waiver of a deviation. 238 THE LAAV OF SIIIPriNG. the accustomed route without a legal cause, so for a stronger reason, he has no authority to substitute another voyage in the place of the one agreed upon between his owners and the freighters of the ship. Everything beyond tlie voyage agreed upon, is out of the scope of his authority as master. As such, he has no power to change that voyage for another.^ 230. In the case of Keeler v. The Firemen's Ins. Co.,' it was said by Cowen, J., that a deviation pro- per is always relative to the geographic line fixed by the policy. And hence, he said, it was quite diffi- cult to perceive how deviation can be predicated of river navigation in almost any case, and especially under a policy on time, covering all and any adven- tures to and fro in the whole region of the coasting trade from Albany round to Boston, and thence to Chesapeake Bay, at the pleasure of the owners. He was of opinion, that there was no deviation by the master's pursuing any track within the limits speci- fied by the policy. 231. "But if this" (the policy), it Avas further observed, " had tied up her course from Albany to ' Burgon V. Sharpe, 2 Camp. N. P. R. 529. ^ 3 Hill's R. 250. See Powell v. The Firemen's Ins. Co., American Law Rogi-tcr (No. 2) 110. In this latter case, it was held by the Kentucky Court of Appeals, that where a steamboat is insured for the navigation of a particular river, as the Mississippi, and not from port to port, the rules as to deviation do not apply ; and, therefore, that a loss has been incurred while the boat has been runnin'^' in an unfrequented, though navigable channel of the river, will not affect the policy. But sec Gazzam v. Ohio Ins. Co., Wright's R. 201 ; Jolly v. Ohio Ins. Co., Ibid. 539, 5 Ohio 11. 435.° COMMEXCEMEXT, ETC., OF THE YOTAGE. 239 Georgetown, or Alexandria, she being in the Poto- mac, crowding sail for her port of destination, though so unskilfully as to ao in the wronof channel — one that was never taken before for such a purpose — jet, so long as she kept the general course of the river, she had not, I apprehend, deviated within the sense of the law." But has not the master, in the very inception of his contract with the freighter, agreed to go in the usual course, and so far as river navigation is concerned, in the accustomed channel? and if he fails to do so, is he not performing his con- tract, whether through ignorance or wilfulness, is immaterial, in a manner difierent from his under- taking? and if loss or accident occurs, would not the deviation be deemed the proximate cause of it? Wa apprehend that the legal answer to these queries, must be in the afhrmative.^ 232. If the charter-party, bill of lading, or receipt for the goods, prescribes a particular route, the mas- ter must pursue it. Hence, where the owner of a line of vessels engaged in transporting goods from Philadelphia to Baltimore, gave to the shipper the following receipt : '' Received on board II. 's line for Baltimore via Chesapeake and Delaware Canal, from J. B. (the shipper), one hundred slaughter hides, on deck, wliifli I promise to deliver to J. D., at Balti- more, the dangers of the navigation, fire, leakage * Sec Dunsoth v. Wade, 2 Scuninion's R. 289. Sec also, Iler- man v. We.s(crn Marine & F. Ins. Co., 13 Loui.s. II. 516; Stewart V. Tenn. M. & K. Ins. Co., 10 TIm.ii.li. 242, and Natchez Ins. Co. V. Stanton, 2 Smcdcs & Mar. U. ;J40, as to the effect upon the policy of insurance of taking vessels iu tow. But sec the fore- going note. 240 THE LAW OF SlIirPING. uiul bi'oakagc cxceptetl, ho or they paying freight," &c., it was held, that this was a eoiitract to carry the goods to Baltimore through the canal. It appeared in evidence that the vessel left Philadelphia, and on arriving at the mouth of the canal, the captain was informed that the locks were out of order, and that he could not be allowed to pass through the canah He then proceeded down the bay and out to sea, with the intention of going round to Baltimore, but in a gale of wind the vessel struck on a shoal, and with the cargo was totally lost. 233. It was held, that these circumstances did not excuse the deviation from the designated route. '• When the master discovered the impediments to the prosecution of the voyage, through the route called for in the contract, his duty was plain ; he had one of two courses to pursue : to remain in a place of safety at the mouth of the canal, or in some convenient and safe place in the neighbor- hood, until the obstructions were removed ; or he should have returned and informed the owners and shippers of the impracticability of proceeding through the canal. The legal effect of the contract is an en- gagement to deliver the goods at Baltimore in a reasonable time; and what would be a reasonable time, must be determined under all the circum- stances, with a view to the condition of the canal, the season of the year, the state of the weather, and such other matters as might enter into the ques- tion."^ ' Hand V. Bayncs, 4 Wbart. 20.4. There is a distinction, recognised by the Courts, between implied covenants, by opera- COMMEXCEMENT, ETC., OF THE VOYAGE. 241 234. It was further held, that the clause m the receipt, " the dangers of the navigation," did not ap- ply to dangers caused bj the canal's being by inevi- table accident rendered impassable. Occasional in- terruptions of trade, arising from breaches in canals, or other accidents, are inconveniences, it was said, but in no sense could be considered as dangers of the navigation, coming within the exce^^tion. 235. AYhen the bill of lading stipulates that the goods are to be carried from one port to another, a direct voyage is prima facie intended, but this pre- sumption may be controlled by a usage to stop at intermediate ports, or by personal knowledge on the part of the shipper, that such a course is to be pur- sued. The express terms of a bill of lading in such a case are not contradicted by evidence of the usage. tion of law, and express covenants. The latter arc taken more strictly. And for the reason that when a party, by his own con- tract, creates a duty or charge upon himself, he is bound to make it good, and is not excused, although prevented by inevitable ne- cessity, because it is said he might have provided against it by Lis contract. On this ground it has been held, that if a ship be warranted to sail on or before a particular day, but is prevented from sailing on that day by an embargo, the warranty is not com- plied with. Horn v. Whitmorc, 2 Cowp. 784 ; Parson v. Watson, 2 Id. 7S.0. Whether this doctrine rests upon grounds that ap- prove themselves to reason and justice, whether it would not be more in harmony with both to consider every contract of that nature a.s excepting impossibilities, and excusing the party if they interposed to prevent the performance of his undertaking, it is now too late to inquire. The authorities arc conclusive upon this point. But in the ca.«e of implied covenants by operation of law, if the party is disabled to pfrforiii tliPiii, without any default in him, and hath no remedy over, then the law will excuse him. Sec T. K. 750; 8 Id. 2'j'J. 16 242 TUE LAW OF siiirriNG. A presumption of law is controlled by proof of a fact, that is. of the usage.' 236. If the ship be destined to several places, the master must sail to them in the order designated, or Avhicli may be usual, making such intermediate rests and stages only in the course of his voyage as the ordinary convenience of his employers and the nature of the ship's service may require. If she be driven into a port out of the course of the voyage by tempest, or the master sail thither for any of the before-mentioned reasons, he must wait no longer than necessity requires, but sail again Avithout delay; and for that purpose supply his ship with the requi- site necessaries or repairs as expeditiously as he can. While a vessel is detained at a port of necessity, it is no deviation to take in additional cargo, if no additional delay or risk is occasioned thereby .^ And when a policy of insurance grants liberty to touch at a port, the ship may take in or discharge cargo, without its being considered a deviation, if no delay or change of risk is incurred thereby, and the pur- pose for which the liberty to touch was granted is kept in view.^ 237. When the vessel is driven into an interme- diate port by stress of weather, and is unable to pro- ceed in her present condition, the master is bound ' Lowry v. Russell, 8 Pick. 3G0. 2 Abbott on Shipping, 445; 3 Kent, 314; Chase v. Eagle Ins. Co., 5 Pick. 51 ; Hughes v. Union Ins. Co., 3 Wheat. 159; Paine V. Col. Ins. Co., 2 John. 2G4 ; Bork v. Norton, 2 M'Lcan R. 422. 3 Thorndike v. Boardman, 4 Pick. 471. C0MMENCE5IENT, ETC., OF THE VOYAGE. 243 to repair her in convenient time, or jorocure another vessel to carry the goods, as we shall more particu- larly see hereafter. In the case of Bork v. Norton,^ it was observed by Judge M'Lean, that it might well be a matter of doubt whether all the principles of maritime contracts, such as we are now considering, could be applied to the navigation of the western lakes and rivers. A distinction, he thought, might well be drawn between a contract for the transporta- tion of goods upon the high seas, and over lakes of but limited extent. 238. In the former case, he said, the risks were numerous, and being well understood, might, to some extent at least, be protected by an insurance. In the latter, if the risks are of the same nature, they are more limited. But tlie main dilTerence is, the transportation by sea is the only means of convey- ance in one case, while, in the other, if obstructions on the water occur by ice or otherwise, a land trans- portation may be adopted. And the contract is made in reference to this fact, either express or im- plied. 230. Witli respect to the first suggested diflercnce, it may l)e observed, tliat if the risks by lake naviga- tion anj uunx: limited, tliey are equally well under- stood as the risks at sea, and can therefore be equally protected by insurance. With respect to the second difference, the conclusion drawn from it does not seem a sound one. When a party agrees to convey goods by water, there are certain known risks to be ' li M'Lcan 11. 422. 244 THE LAW OF SHIPriNG. encountered.' These may delay the voyage. The law has prescribed the duties of the master in such a contingency. When the voyage is interrupted, he must wait no longer than necessity requires. But the law has nowhere enumerated it as among liis duties, that when the progress of the voyage is delayed by embargo or ice, that he shall change the mode of conveyance, and subject himself to the onerous ex- pense of transporting the goods by land. If the shipper wishes to guard against dela}^, he can, by a special contract, make it obligatory upon the carrier to forward the goods by land when their progress is interrupted by the accidents of water navigation. Simply because there is a mode of transportation different from the stipulated mode, would seem to be an insufficient reason for the position, that the carrier must avail himself of it upon the happening of a certain event. ' Might not the carrier take upon himself the responsibility of an insurer, by changing the mode of conveyance ? Suppose the goods should be lost, after the change from water to land carriage, by inevitable accident or irresistible force, would not the shipper have a right to claim damages, and upon the ground that the car- rier by changing the mode of conveyance, had impliedly assumed to be answerable for all losses ? "Would not that be the legal inter- pretation of the transaction ? At all events, would not such change of conveyance be deemed by the law the proximate cause of any loss or damage that might ensue ? If the shipper unconditionally receives the goods at the port of distress, and conveys them overland to the port of destination, the expense of such conveyance must be borne by him, and he is also bound to ])3Ly pro rata freight. When the shipper receives the goods, as to him, the voyage is ended ; and as to the future, the carrier has neither duty nor reward. Reed v. Dick, 8 Watts' R. 479. COMMENCEMENT, ETC., OF THE VOYAGE. 245 240. If by reason of the damage done to the ship, or through want of necessary materials she cannot be repaired at all, or not without very great loss of time, the master, by the English law, is at liberty to procure another ship to transport the cargo to the place of destination.^ In this country, says Chan- cellor Kent,^ we have followed the doctrine of Eme- rigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owner of the cargo, which is cast upon him from the necessity of the case, to act in the i^ort of necessity for the best interest of all con- cerned ; and he has powers and discretion adequate to the trust, and requisite for the safe delivery of the cargo at the port of destination. If there be another vessel in the same or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it ; but still the master is to exer- cise a sound discretion adapted to the case. He may tranship the cargo, if he has the means, or let it re- ' Abbott on Shipping, 446. The English law leaves the master at Uhrrtij to tranship, as stated in the text. It is not (•onsidcreJ, it would seem, to be both bis duty as well as his right to forward the cargo in another vessel. See Shipton v. Thornton, 9 Adol. & Ellis, 314. When the privilege of transliipmcnt is reserved to the carrier in the bill of lading, he is not thereby discharged from any rcspon- eibility which is incident to his contract until the goods be delivered at tiieir destined port. See Angcll on Carriers, 232 ; and also AVhitcsidcH V. Ilussell, S Watts & S. 44 ; M'Gregor v. Kilgore, G Ohio 11. H.T; Dunscth v. Wade, 2 Scamm. (111.), 2SS ; Ca.s.sillcy V. Young, 4 JJ. ."Nlon. 11. 205; Little v. Scniple, S Missou. 11. 91). "3 Kent, 212; Kmcrigon, tome I. 42^,429; Code do (^)m- mcrce, art. 29G ; IJoulay I'aty, Cours de Droit Com., tome TT. 400-405. 246 THE LAAr OF SHIPPING. main. lie may bind it for repairs to the ship. lie may sell part or hypothecate the whole.' 241. If, however, the shipper will not consent to the offer of the master to procure another vessel to carry on the cargo, he is bound to pay full freight. It is his own act that prevents the due fulfilment of the contract.^ It should be observed, that the duty of the master to procure another vessel is only im- perative, when another vessel can be had in the same or a contiguous port, or at one within a reasonable distance, and there can be no difficulties in the way of a safe transhipment.^ 242. If the master does tranship for the comple- tion of the voyage, the freighter is bound to pay the extra freight, that is, the increased freight arising from the hire of the new ship."* Extra freight, in such a case, means the increase of freight bej'ond what the freight would have been under the original charter-party, if the necessity of hiring another vessel had not intervened. The owner of the goods is not ■ See also Muraford v. The Com. Ins. Co., 5 John. R. 262 ; Searle v. Scovill, 4 Johns. Ch. R. 218 ; Jordan v. Warren Ins. Co., 1 Story's R. 342 ; Miston v. Lord, Blatch. R. 354. 3 Molloy, B. 2, c. 4, s. 5 ; Griswold v. New York Ins. Co., 3 John. 321; Bradhurst v. Col. Ins. Co., 9 lb. 17; Herbert v. Hal- lett, 3 John. 003; Schioflfelin v. New York Ins. Co., 9 lb. 21; Willings V. Blight, 2 Peters's Adm. R. 289; 3 Kent, 210; Ship- ton V. Thornton, 9 Adol. & Ellis, 336. 8 Saltcrs V. Ocean Ins. Co., 12 John. R. 107 ; Treadwcll v. Union Ins. Co., Cowen, 27G; The Gratitudine, 3 Rob. Ad. R. 240; 3 Kent, 213. ■• Mumford v. Com. Ins. Co., 5 John. 262; Searle v. Scovill, supra; Shipton v. Thornton, supra. COMMEXCEIIENT, ETC., OF THE VOYAGE. 247 responsible for the old and the new freight united. The first ship did not earn, upon any principle, more than a rateable proportion of the original freight, because she performed only a part of the voyage ; and it might well happen, if the freight up to the port of necessity was accurately and justly apportioned, that the hire of the new ship might not amount to more than the portion of the original freight which remained to be earned by the first ship. To ascertain the amount of such extra freight, the proper rule is, to determine the difference be- tween the amount of freight under the original char- ter-party, and the rateable freight for the goods saved to the port of necessity, added to the freight of the new ship hired to carry on the goods. This extra freight for the renewed voyage is a lien on the cargo. ^ 243. In New York, and by the French law, which is entitled to great weight upon a maritime question, the insurer upon the goods must pay the increased freight arising from the necessary change of the ship.^ But in the case of Shultz v. Ohio Ins. Co.,^ the Court of Appeals of Kentucky held, that the insurer gua- rantees only the safe arrival of the goods, and is not * Scarle v. Scovell, 4 John. Ch. 11. 218; Potbicr, tit. Chartc- partic, n. 07, 08. ' Murnforil v. The Cora. Ins. Co., 5 John. II. ; Scarle v. Scovell, suprti ; American Ins. Co. v. Center, 4 Wend. 45; Code dc Com- merce, \o. o(»l, .'{03; Emerigon, tome I., 429 to 433. ' 1 IJ. .Monroe, 330; see, also, Cazc v. lialt. In.s. Co., 7 Cranch, 358; Columbian Inn. Co. v. Catlett, 12 Wheat. 383; Haillc v. Modigliani, Marsh on Ins. 728; Dodge v. The Union Marine Ins. Co., 17 iMass. II. 475. 248 THE LAW OF SHIPPING. liable to the insured for extra freight incurred by a transhipment, in case of a disaster insured against. The Court, in this case, \vent into a very elaborate examination of the American authorities upon the point, and while they could fnid no case directly mi- litating against the doctrine of the New York cases, they thought the general tenor and bearing of them were inconsistent with it. But it is at all times a dangerous practice to apply the general expressions of Judges, in deciding questions directly before them, to cases where new points have arisen, and new issues are involved. Those general expressions de- cide nothing. They were employed with reference to one subject, and while the mind was occupied with particular questions. Other questions were ex- cluded from the mental view, and those expressions were used without regard to their effect upon cases that might hereafter arise. Hence it is, that, as a general rule, subject of course to particular excep- tions, it is only the actual decision, upon the actual point before a Court, that is entitled to the weight of jorecedent, or that is legitimately used to explain the exact meaning and doctrine of the Judge. 244. If the master's 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 he has power and authority over the cargo adequate to the purpose of effecting the repairs, and providing for its safe delivery at the port of destination. It is true, that in the ordinary state of things, the master is a stranger to the cargo beyond the purposes of safe custody and conveyance, yet in cases of instant, and COMMENCEMENT, ETC., OF THE VOYAGE. 249 unforeseen, and unprovided for necessity, the cha- racter of agent and supercargo is forced upon him by the general poHcy of the law. And he may there- fore bind the cargo for repairs to the ship, when he cannot obtain the necessary funds upon a pledge of the ship itself. lie may sell part of the cargo, for the purpose of applying the proceeds to the prosecu- tion of tlie voyage, or he ma}^ liypothecate the whole for the same purpose. If he sells, the law does not fix any aliquot part, though it must be of a part only; and, generally speaking, it must be adequate to the occasion. What is reasonable and just, in re- spect to the execution of his powers in such cases, is legal.' 245. The books are not very definite as to the time allowable to the master to repair and go on with his voyage. Some of the foreign regulations, as was ob- served by Judge Putnam, in the case of Clark v. Mass. F. & M. Ins. Co.,^ seem not to be consistent or consonant with reason, experience, or convenience, when applied to the usage of our own countrj'. Thus, for example, according to the laws of the Ilanse Towns, three days at most are allowed to the master to repair. By the laws of Oleron,^ if the master can mulUij repair his vessel, he may do it, or if he pleases, he may iVeight another ship to perform the voyage. By tbe hiws of Wisbury,^ it is said tliat the master may fit out liis sliip, if he can do it in a lUfla time. Molloy remarks, tliat In such case, the ' The Oratituflinc, 3 Rob. Ad; R. 240 ; Abbott nn Shipp. 447. « 2 rick. lOS. » Art. 4. * Art. IG. 250 THE LAAV OF S HIPP I NO. master may either mend his ship or freight another.' He uses no words of restriction as to the time. 246. From these vague and loose expressions, no rule can be deduced. Our American cases give a wide latitude to the master, and where the cargo is not of a perishable nature, allow him adequate time to make the necessary repairs. " What is to be un- derstood by repairing readily, or specdihj, or in a little time, must depend upon the circumstances of the case. Chief Justice Kent, speaking of a ship which was re- paired in seventeen days, observed that she was in a condition to be immediately repaired."^ And in the case from Pickering, cited in the margin, it was held that the master was justified in retaining his cargo and earning his freight, although the ship was so much damaged, that it required two months to re- pair her. Each case, as it arises, must furnish its own rule. 247. After the shipment of the cargo on the voy- age, the shippers have no right to demand it at any intermediate port, short of the port of destination, witliout payment of the full freight for the voyage, whether the cargo arrive there in a damaged or in an undamaged state. The reason is obvious. The master has a right to carry on the cargo to the port of destination ; and if his ship be capable, either then, or within a reasonable time, of carrying the cargo to the port of destination, there is no ground • Book 2, c. 4, § 5. 2 Clark V. Mass. F. & M. Ins. Co., supra; Griswold v. N., Y. Ins. Co., 3 John. R. 327. COMMENCEMENT, ETC., OF THE VOYAGE. 251 to sa^', that lie is not entitled to earn a full freiglit ; and the shippers of the cargo cannot insist upon changing the original contract in invitum, and cut him off from all freight, or dismiss him with a pro rata freight.^ 248. If the master at the port of necessity refuses either to tranship the cargo, or carry it on in his own ship within a reasonable time, he is entitled to no freight. Freight is dependent upon the due per- formance of his contract, and if he declines or refuses to perform it, his claim to freight is destroyed.^ 249. If the cargo is of a perishable nature, and there is no time or opportunity to consult the mer- chant, the master is bound to tranship or sell it, according as the one or the other will be most bene- ficial to the merchant. He is the agent for the benefit of all concerned, and his acts done under such circumstances, in the exercise of a sound dis- cretion, are binding upon all parties in interest.^ 250. But when the cargo is so much damaged that to proceed with the voyage will endanger the safety of the ship or cargo, or render it worthless, it is the duty of tlie master to land and sell it at « Jordan v. Warren Tns. Co., 1 Story's C. C. R. 342. "Aniroyd v. Union Ins. ('o., 15 IJinn. 437; Coffin v. Storcr, .^) MasH. 'J42 J Trcadwcll v. Union In.s. Co., G Cowcn, 270; IMniii- ford V. Com. Ins. Co., 5 .Inlm. 'JO-J ; 'I'lic Ann I). Hie hanlsdii, Blatchford'H K. 358, note; Miston v. Lmd, Ibid. 35 U ' Abbott on Sliif.ping, p. 447; Tlio Gratitudino, 3 Rob. Ad. R. 240; TIk! I.sabolla, I M. 77; Mi.ston v. Lord, >^uj>ra. 252 THE LAW OF SHIP PING. the port of necessity, -svhetlier this be the original port of the shipment to which the ship returns, or at any intermediate port, at which the ship arrives in the course of the voyage. And this he is bound to do, in the absence of instructions from the ship- per, even though the cargo may be in a condition to be carried in specie to the port of destination and there Landed.^ 251. If there is no acceptance of the cargo, or waiver of performance by the shipper, or his agent, at the port of distress, the owner of the vessel is not entitled to freight, notwithstanding the damaged state of the cargo justified its sale by the master at such port of distress.^ The voluntary acceptance of the cargo by the shipper, will of course have the effect to charge him with a rateable portion of the freight,^ 252. But there is no authority for subjecting him to freight, where the port of distress and of accept- ance of the cargo, is the port of shipment, and when no part of the voyage has been performed. Hence, where A., by his agents, chartered a vessel for a voyage from New York to Havre, the freight to be payable on the arrival and discharge of the cargo at Havre, and the vessel sailed, but encoun- > Miston V. Lord, siij^ra ; Jordan v. "Warren Ins. Co., 1 Story's C. C. R. 342 ; contra, Ilalwerson v. Cole, 1 Spears, 324. ^ The Ann D. Richardson ; Halwerson v. Cole, 1 Spears' R. (S. C.) 321; 7 Cranch's R. 3G2j Blatcbtbrd's R. 358, note; post tit. Freight. ^ Miston V. Lord, svpra. COMMENCEMENT, ETC., OF THE VOYAGE. 253 tered a storm and sprang aleak, and put back to New York : in consequence, the cargo was dis- charged, and on a survey, was found to be so much damaged by salt water, that it would not bear trans- portation, nor would its shipment have been safe for the vessel or crew. A.'s agents refused to interfere with it, and the master sold it at auction. In an action by A. for the net proceeds, it was held, that the owner of the vessel was not entitled to retain anythina- for freiuht.^ 253. '' What seems decisive of this case," said his honor, Judge Nelson, " and of the class of cases to which it belongs, is, that admitting the master to be the agent at the port of distress of all parties in- terested, and that he has acted bona fide, and for the benefit of all concerned, in the sale of the damaged cargo, yet, inasmuch as the goods were in a condi- tion that would endanger the safety of the ship and the lives of the crew if they were carried forward, it cannot be said that the voyage was broken up for the benefit of the cargo any more than for the benefit of the ship-owners. Independently of au}^ duty but that the master owed to the cargo under the existing calamity, the interest of his owners dictated the breaking up of tlie voyage ; and it being broken up under tliose circumstances, and for tliat cause, and the shi[)i)or liaving derived no benefit under Iiis eon- tract, it is (lilliciilt to find any principle, legal or equitable, that would subject him to any part of the frei'dit." ' Miaton v. Lord, sxipni. 254 TUE LAW OF SHIPPING. 254. The duty of the master to tranship or sell the cargo, according to the circumstances of the case, is equally imperative in a case where the ship has been wrecked, and the cargo saved. And if on the high seas, the ship be in imminent danger of sinking, and another ship, apparently of sufticient ability, be passing by, the master may remove the cargo into such ship, and although his own ship happen to out- live the storm, and the other perish with the cargo, he will not be answerable for the loss.^ 255. So too in the case of a charter-party, where the vessel is let for a voyage, and is sufficient at the commencement of it, but is entirely lost, or incapable of pursuing it, the hirer is entitled to betake himself to another vessel, and the owner loses his freight upon the charter-party. The charterer, however, must not abandon the vessel whilst she can be pro- perly kept afloat and used for the purposes of the voyage ; and if repairs are necessary, he may make them at the charge of the owner.^ ' Abbott on Shipping, p. 448. 2 Kinibiill V. Tucker, 10 Mass. R. 192. See this case, as to whether freight runs during the repairs. " The disposal of the cargo by the master," says Lord Tenterden, " is a matter that re- quires the utmost caution on his part. He should always bear in mind that it is his duty to convey it to the place of destination. This is the purpose for which he has been intrusted with it, and this purpose he is bound to accomplish by every reasonable and practicable method. Every act that is not properly and strictly in furtherance of this duty, is an act for which both he and his owners may be made responsible; and the law of England does not recognise the authority of any tribunal or officer acting upon his suggestion, or at his instance; but will scrutinize their acts as his own. The hypothecation of the cargo is allowed by the marine COMMENCEMENT, ETC., OF THE VOYAGE. 255 25G. In the case of shipwreck, the master is not at liberty to sell the cargo merely on the ground that the sale will be the best thing for all concerned, and that a prudent owner, if present, would sell under the same circumstances; but he will be justified in selling only by a legal necessity. Hence, in the case of Brj'ant v. Com. Ins. Co.,^ where a vessel was law, and by the law of England also ; but it is allowed in those cases only in which it is made in furtherance of this purpose. The sale of a part has been allowed ; but it was allowed in a case in which the hypothecation of the whole would have been lawful, and because it was considered as a matter equivalent to such hypothecation. Hy- pothecation imports a pledge without immediate change of posses- sion : it gives a right to the party who makes advances upon the faith of it, to have the possession, if his advances are not repaid at the stipulated time, but it leaves to the proprietor of the things that may be hypothecated, the power of making such repayment, and thereby freeing thorn from the obligation. It is, therefore, contrary to the nature of this proceeding, and consequently con- trary to the duty and beyond tlie power of the master to engage that the lender shall at all events have the goods delivered at their place of destination to him or his agents, to be there sold and dis- posed of by him or them, without reserving the right of redemp- tion to the merchant ; and such an cnn;af'cment will not be oblinfa- tory upon the merchant, but he will still have the right to take his goods upon payment of the money for which they may have been engaged." Abbott on Shipping, pp. 448, 449. ' 13 Pick. 043. "It would be clear," said Putnam, J., " that if the master assumed to act for the owners and underwriters when they were present, or .«o near as to be consulted in regard to the disposition of the property, his acts under such assumption of authority would not bind tli(;m. lie might be justified, if the nece8.sify were so urgent as to require immediate action ; as if the goods would probably perish or be destroyed before the directions of the owners could be obtained. But if the goods were not perishable or damaged, and might be preserved in reasonable safety until tiie owners and underwritcra could be consulted, he should 256 THE LAW OF siiirriNG. strandotl on the coast of Virginia, and the cargo was landed without damage, and was not of a perishable nature, and might have been kept in reasonable safety until the owners and insurers, who lived in Massachusetts, could be heard from, it was held, that the master had no authority to sell the cargo and break up the voyage, without waiting until the owners and insurers could be consulted. 257. If the master is unable to deliver the cargo preserve and guard them ; and in such case be would have no more authority to break up the voyage and sell the cargo, than the mate or a stranger would have. And notwithstanding he conducted him- self honestly, yet if the other elements which make up this legal necessity were wanting, the owners and underwriters would not he bound. The question therefore is, whether or not there was a legal necessity for the master to terminate the voyage and sell the cargo. The acting merely in good faith, and for the interest of all concerned, will not exempt the sale of goods from the character of a tortious conversion, for which the ship-owner and purchaser are responsible." See also 3 Kent, 134; Schieffelin v. N. York Ins. Co., 9 John. 21; Scarle v. Scovell, 4 John. Ch. 218; Saltus v. Ocean Ins. Co., Id. 107 ; American Ins. Co. v. Centre, 4 Wend. 52 ; Freeman v. East India Co., 4 Barn. & Aid. 617 ; Halwerson V. Cole, 1 Spears (S. C), 321. In this latter case it was said by Evans, 3., per curia, that "cases might arise in which there may exist a necessity for disposing of a damaged cargo. If it be for the general benefit, it may be a subject of general average. But in all other cases, the shipper has a right to insist on a delivery of the goods as a condition precedent to the payment of freight. It is no answer to say the ship-owner acted Luna fide, and the sale was for his benefit. He has commissioned no one to judge for him on that subject. He may prefer to have the goods in a damaged state. It is his right, and cannot be withheld from him without a forfeiture of the demand for freight. The opinion of this Court is, that the Circuit decision was rlgbt; and the motion is dismissed," Sec also Poole v. The Protection Ins. Co., 14 Com. 47. COMMEXCEMEXT, ETC., OF THE VOYAGE. 257 at the port of destination from the disasters of the voyage, that is, if the ship is disabled, and another cannot be procured at the port of necessity, or at a contiguous port, if the cargo is perishable, it would seem to be, from the very nature of the case, the proper course to sell it. If, on the other hand, it is not perishable, the master must store it, and inform the shipper as soon as possible.^ And he is not jus- ' Saltus V. Ocean Ins. Co., 12 John. 107; Treadwell v. Union Ins. Co., G Cowen, 270 ; Poole v. Protection Ins. Co., uhi sup. ; Jordan v. Warren Ins. Co., 1 Story's R. 342. The observations upon this subject, of Lord Tenterden, are deserving of attention. " What, then," he inquires, "is the master to do, if by any disaster hap- pening in the course of the voyage, he is unable to carry the goods to the place of destination, or to deliver them there ? To this, as a general question, I apprehend no answer can be given. Every case must depend upon its own peculiar circumstances. The con- duct proper to be adopted with respect to perishable goods, will be improper with respect to a cargo not perishable. One thing may be fit to be done with fish or fruit, and another with timber or iron ; one method may be proper in distant regions, another in the vicinity of the merchant; one in a frequented navigation, another on unfrequented shores. The wreck of the ship is not necessarily followed by an impossibility of sending forward the goods; and docs not of itself make their sale a measure of necessity or expedience : much less can the loss of the season, or of the proper course of the voyage, have this effect. An unexpected interdiction of commerce, or a sudden war, may defeat the adventure, and oblige tin; ship to stop on her course ; but neither of these events doth of itself alone make it necessary to sell the cargo at the place to which it may be proper for the ship to resort. In these and many other cases, the master may be discharged of his obligation to deliver tlie cargo at the place of destination, but it docs nut tlicreforo follow that he is authorized to sell it, or oiiglit to do so. What then is he to do ? In general, it may bo Baid, ho is to do that wliich a wise ami pru- dent man will think most conducive to the benefit of all concorntMl. In so doing, he may expect to bo safe, because the merchant will not have reason to be dissatisfied ; but wliat this thing will be no 17 258 THE LAW OF SIIirPING. tified ill selling the cargo at the port of necessity, by showing that he acted in good laith and under the advice of surveyors called by hira, who reported it damaged, and recommended a sale for the benefit of all concerned, provided that no necessity existed for a sale. The master has no right to sell the cargo, or any portion thereof, unless in a case of moral necessity, in order to prevent a greater loss to the shippers. If such necessity is not made to appear. general rules can teach. Some regard may be allowed to the interest of the ship and of its owners, but the interest of the cargo must not be sacrificed to it. Transhipment, for the place of destination, if it be practicable, is the first object, because that is in furtherance of the original purpose ; if that be impracticable, return or a safe deposit may be expedient. The merchant should be consulted, if possible. A sale is the last thing that the master should think of, because it can only be justified by that necessity which supersedes all human laws. If he sell without necessity, his owners, as well as himself will be answerable to the merchant, and they will be answerable if he places the goods at the disposal of a vice-admiralty Court in a British colony, and they are sold under an order of the Court, such a Court having no authority to order a sale. And the persons who buy under such circumstances, will not acquire a title as against the merchant, but must answer to him for the value of the goods." Abbott on Shipping, pp. 449-451. See also 3 Kent, 224; Palmer v. Lorillard, 16 John. 348; Everett v. Saltus, 15 Wend. 474 ; Caneran v. Meaburn, 1 Bing. R. 243 ; Robertson v. Clark, Id. 445 ; Smith v. Martin, 6 Binn. R. 262 ; Scull v. Biddle, 2 Wash. C. C. R. 150 ; Dodge v. Union Ins. Co., 17 Mass. R. 478 ; Whitney V. Firemen's Ins. Co., 18 John. R. 208; Myers v. The Harriet, Adm. E. D. P. July, 1848; 2 Wharton's Dig. 662; Stevens & Ben. on Av. 285; 2 Story's R. 471; 13 Peters, 387; 2 Pick. 249; 3 Sum. 27; Edw. Ad. 118. These latter cases as to the materiality of the hona fide action of the master, in making the sale. Pope v. Nickerson, 3 Story's C. C. R. 465 ; Lawrence v. The New Bedford Com. Ins. Co., 2 Story's R. 471. COMMENCEMENT, ETC., OF THE VOYAGE. 259 the advice of surveyors is no justification, and he and his owners are answerable to the merchant.^ 258. Whilst the general rule is, as we have seen, that the master must stow the cargo, and immediately inform the shipper, where it is sound, and in no danger of precipitate decay, it is proper to observe, that the rule is not absolutely inflexible. Circum- stances may arise, w^hich would amount to a moral necessity, and render it the duty of the master to sell the cargo, which he has no means of forwarding to the port of destination. The port of necessity may be at such a distance from the port of shipment, the means of communication so difficult and irregular, and the cargo of such a nature, that the market for it might be lost, before the shipper could interfere. In such a case the master would be bound to sell, to prevent a greater loss to the owner.^ 259. In the case of Lawrence v. The New Bed- ford Com. Ins. Co.,^ it was held, that when a ship is abandoned for a total loss, the master cannot sell the cargo, and invest the proceeds in other goods, unless he be justified by necessity, or by a high degree of expediency. And this expediency must be judged ' Myers v. Baymore, 10 Barr, R. 114; Popo v. Nickorson, supra; Gordon v. Mass. Ins. Co., 2 Pick. 249; Smith v. Martin, G Binn. 202; 5 Peters' R. 021; 12 Pick. 279; 1 Bing. 248. » Popo V. Nickcrson, siipm ; The; Cratitudine, 3 Rob. 240, 259, 201 ; Morris v. Robinson, 3 B. & C. 190 ; Hunter v. Parker, 7 M. & Wil. 340, 342; Bryant v. Com. Ins. Co., G Pick. 131. It was held, in this latter case, tliat a usage for tho master of a vessel stranded, to sell tho cargo without necessity, is void. » Story's R. 471. 2C0 THE LATT OF SIIirPTNG. of -with reference to the voyage and the nature of the propert}'. If the sale cannot be justified upon these grounds, it will be treated as a mere tortious conversion. 260. Tf, however, in such a case, the master does make a sale, without such necessity or high expe- diency, and it turns out to be advantageous to the parties interested, and they adopt the acts of the master, and receive the proj^erty without reserve or objection, that will amount to a ratification, and they must then take the property or its proceeds cum onere. But if they receive the property, or its proceeds, reserving all their rights, and waiving no objections, then they are entitled to receive the pro- ceeds, without any charges, if the proceeds do not yield a profit to them beyond the fair value of the property shijDped, and so improperly converted, as it would have been on its arrival at the original i)ort of destination. But if it does yield such a profit, and the master acted without fraud, he is entitled to be paid a reasonable compensation and his reason- able expenses, not exceeding such profit/ 260 a. It must be understood, that while the owners of the vessel are generally responsible for the misconduct of the master committed in their business, to third persons, or strangers, they are not so responsible to their cesiais que trust, or co-part- ners, or joint shareholders, provided they use due care in selecting him.^ ' Stor/s R. 471. « Joy v. Allen, 2 W. & M. 303. COMMENCEMENT, ETC., OF THE VOYAGE. 2G1 2G1. The master is bound to take all possible care of the cargo, during the progress of the voyage. If the ship is stranded, the duties and liabilities of the owners and master, as common carriers, are not varied by that event, but continue the same as be- fore. They are bound to show that no human dili- gence or skill could save the property from being lost by the shipwreck, but that it perished with the wreck.' Ahev the damage to the goods is esta- ' King V. Sbeppard, 7 Law R. 275 ; S. C. 3 Story's R. 349 ; Abbott on Shipping, 454. Seo also, Poole v. Protection Ins. Co., 14 Conn. 47 ; Davidson v. Gywnne, 12 East. 381. King v. Sbep- pard, supra, was a case of tbe loss of a bos of specie, containing ten thousand dollars in gold, shipped in the autumn of 1842, at New York, on board the ship North America, Hall, master, for Mobile. The ship struck on the Bahama Banks, and knocked off her rudder, in consequence of which she became unmanageable. The master, who liad hitherto kept the gold, together with another box containing $1000 in silver, in his state room, now ordered his mates to remove it to the run, which he deemed a safer place, as the crew would necessarily be in the cabin for the purpose of fitting a temporary rudder. This was accordingly done, and the boxes stowed in the run, covered with some boxes of powder, &c. The run was not separated from the main IidUI. The ship went on shore again, in the course of two or three days, on the Florida Reef, where, after lying several days, daring which attempts were made to got iier trr i /-i -n n O O T OF THE SEAMAN S REMEDY FOR WAGES. 337 may be maintained in our Courts, when the property of a foreigner is within our jurisdiction. With re- gard to the contracts of seamen for wages, our Courts have proceeded upon the ground that, when they been dissolved by the reguLir termination of the voyage, or by the wrongful act of the other party, a foreign Court may well entertain jurisdiction of them. But when, on the other hand, the voyage has not terminated, or the seamen have bound them- selves to abide by the decisions of the tribunals of their own country, then it is the duty of a foreign Court to decline an}' interference, and remit the parties to their own tribunals for redress.^ 343. The reason of the distinction acted upon in these cases by foreign Courts is satisfactorily stated by Judge Peters, in the case of The Ship Catharina.^ " There are," he says, " in most nations concerned in commerce, municipal and local laws relative to con- tracts with mariners, and other maritime covenants and agreements ; though the great leading principles, or outlines, are in all nearly the same. On this account, among others, I have avoided taking cog- nizance, as much as possible, of disputes in which foreign ships and seamen are concerned. I have, in general, left them to settle their diftcrences before their own tribunals. On several occasions, I have seen it a part of the contract that the mariners should not sue in any other than their own Courts ; and I consider such a contract lawful. It would be against law, and void, if it were, that the mariner ' The Jerusalem, 2 CJallison's 11. 198. ' 1 Peters' Adm. K. 104. 22 338 THE LAW OF SIIirPING. should not sue in any case, or that he should not sue in the proper Court or Courts of his country. But when the voyage of a foreign ship ended here, or was broken up, and no treaty or compact desig- nated the mode of proceeding, I have permitted suits to be prosecuted. In such cases, I have determined according to the laws of the country to which the ship belonged, if there existed any peculiar variance or difference from those generally prevailing. I have seldom found any very material difference in principle.' "1 344. The jurisdiction of the Admiralty over suits for mariner's wages is not affected by the circum- stance that the agreement upon which the suit is founded is a sealed instrument. Judge Story, in alluding to this point in the case of Harden v. Gordon,^ said that the distinction between a special agreement and the ordinary agreement, as a founda- tion for jurisdiction in cases of seamen's wages, had alwaj's appeared to him to be little more than solemn trifling and evasion. The princij)le adopted by our Admiralty Courts is, that if they have juris- diction of the subject-matter, they will follow it out over the incidents. It was formerly supposed that mariners could not sue in the Admiralty, if their contract contained any unusual covenants or stipu- lations. It was said that if the contract for service be made upon terms and conditions differing from ' See, also, The Nancy, Bee's R. 217 ; The Forsokct, 1 Peters' Ad. R. 197 ; The St. Oloff, 2 Peters' Ad. R. 428. » 2 Mason's R. 544. See also The Fair American, 1 Peters' Ad. R. 92 ; De Lovio v. Boit, 2 Gallis. R. 398. OF THE seaman's EEMEDT FOR T^AGES. 339 the general rules of la^Y, the service alone could not entitle a mariner to his wages. His right, then, must depend upon the performance of the stipulated terms ; and the construction of the instrument con- taining those terms was a proper subject for the jurisdiction of the Courts of common law. But such narrow and confined views of the powers of the Admiralty have, happily, never been entertained in this country. The construction of a written in- strument is a proper subject for every Court having cognizance of the subject-matter; and in American jurisprudence this rule is held to be equally as apjDlicable to the Admiralty as to any other Court.' 345. The primary security of the mariner for his wages is the lien which the law gives him upon the vessel. His claim, after the expenses of justice necessary to procure a condemnation and sale, and such charges as accrue for the preservation of the vessel after she is brought into port, holds the first rank, and is to be first paid.'^ If the voyage is an illegal one, no wages are payable, nor can be re- covered in any Court of law ; and therefore, in such a case, there can be no lien.^ 340. Witli regard to the enforcement of the mari- ner's lien, there is no fixed time within which it must be done. As with other maritime liens, so ' Dc Lorio V. Boit, 2 Gallis. K. .'}f)8. » The Paragon, Ware's 11. 3.'J0 ; 1 Valin's Coiiira. 3G2 ; Code dc Commerce, No. 11)1 ; Consulat de la Mcr, Cli. 1.38. ' The Langdon Chcevca, 2 Mason, 58 ; The St. Jago dc Cuba, 9 Wliirit. U. 100. 340 THE LAW OF snirriNG. with this : a Court of Admiralty will require vigi- lance in parties who seek its aid, and will not sit to enforce stale and dormant claims. If a privileged creditor remains silent, after having had a proper opportunity to enforce his lien, and suffers the vessel to be sold to a purchaser without notice of the claim, he will be considered as waiving his rights, and as relying on the personal responsibility of the master and owner.^ The simple fact that the vessel passed into other hands, after the lien accrued, without any laches on the part of the seaman, will not operate to defeat his lien ; nor will such be the effect, under the same condition, if the vessel makes one or more voyages.^ ' The Eastern Star, Ware's R. 186, 212 ; Bee's Adm. 86. 23 Kent, 197; The Mary, 1 Paine, 180; The Margaret, 3 Hagg. R. 238. In the case of Packard v. The Louisa, 2 Wood. & M. 48, Judge Woodbury held, that there is no fixed time for liens to expire which exist at common law, except the time of parting with the possession, and none in maritime liens, when possession does not exist with them exclusively, except the end of the next voywje, or the intervention, after it, of rights by third persons without notice. " The claim of a seaman for wages on the vessel," he observed, "is a species of lien upon an article, which he should not long forbear to enforce, or it ma}' become inequitable. Having assisted to keep in repair, and navigate and use her for purposes profitable to the owners, and having been so attached to it by a contract or shipping-papers, and having been exposed to all the risks, and toils, and responsibilities of a seaman in her, he is allowed a privilege to charge and hold her for his payment. But all analogies show that the claim, if renewed after being long abandoned, will mislead the public, as well as the owner.«, and embarrass commerce and sales, through secret and unknown and unrecorded outstanding claims. Maritime liens are not, like common law liens, limited to possession. Indeed, exclusive possession seldom accompanies them at all. But they OF THE seaman's REMEDY FOR WAGES. 341 347. Nor does he lose liis lien on the vessel for his wages by taking an order on the owner or char- terer for the balance due at the close of the voyage.^ are claims in rem, or charges in ran, having priority, and are to be seasonably enforced, else they may work great fraud in the community when possession is not taken or retained, and no public register or record is made of them, and the property thus secretly encumbered is allowed to depart, it may be, again and again, to the opposite side of the globe." See also The Nestor, 1 Sumner's R. 87 ; Ex parte Foster, 2 Story's R. 145 ; Acts U. S. of July 20th, 1790, and June 19th, 1813; The Rebecca, Ware's R. 212. In the case of The Sloop Solon, Crabbe's R. 17, it was held that a libel will be sustained, though the vessel has made a second voyage since the cause of libel accrued, if, by her sudden departure, the prosecution of the claim was previously prevented. And in the case of The Schooner Jane, Id. 178, where a seaman, shipped for a part of a voyage, was discharged at the termination of his engagement, without payment of wages, it was held that, in such a case, if the seaman makes every exertion to follow up the vessel, and, immediately upon meeting her, commences proceedings against her, his lien for wages is not destroyed, though the vessel has made one or more voyages since his discharge. In Holmes v. The Lodemia, Id. 434, Judge Ilopkinson decided that a forbearance to sue for nine months, even if the libellant was on the spot, and the vessel within the power of the Court during that time, does not raise a presumption of payment, either in the Admiralty or any other Court. The mere fact that a plaintiff in the Admiralty, or in any other Court, has discontinued his action, is not a bar to a subsequent suit. ' The Eastern Star, Ware's R. 185, This was a suit in rrm for seamen's wages. It was not disputed that the services had been performed, or that there was a balance due to the libellants. At the time wlicn the contract was made with the seamen, the vessel was owmd l,y Mr. Iloudlette; a few days after, she was conveyed to -^Ir. Amory, as focurity for a debt which Iloudlette owed him, but the vessel remained under the direction of Iloud- lette, and was employed for Iii.s benefit. On her return from her voyage, the master ascertained the balance of wages duo, and gave 342 THE LAW OF SHIPPING. The general doctrine is, that if, by the local law, the acceptance of a negotiable security for a pre-existing debt by t^imple contract is held to be payment, and an extinguishment of the original cause of action, then the acceptance of such security by a privileged creditor will defeat his lien. Judge Ware, however, in the case of The Betsey and Rlioda,^ qualified the general doctrine, so far as it is applicable to the claims of seamen, and held that, to operate as a waiver of their privilege and an extinction of their lien, it should, in the first place, be distinctly stated to them that such would be the result of the accept- ance of the negotiable security, and also (such was the inclination of his mind) that the note should be accompanied with some other security, in addition to the personal liability of the owners, as an equiva- to each of the men an order on Houdlette for the amount. The master, whose deposition was taken, stated that these orders were not considered by him as payment, but mere memorandums, show- ing the amount due, and that they were so considered by the sea- men. They were presented, and not paid; but a verbal promise was given to pay them when Houdlette should receive the proceeds of the sale of the cargo. On this promise, the seamen delayed to enforce their claims, and the vessel proceeded on another voyage. The right of the seamen to recover against the vessel was objected to on two grounds: 1. That the orders given on Houdlette were to be treated as bills of exchange, and that the acceptance of these was a discharge of their lien on the vessel; 2. That the lien was lost by neglect to enforce it in due season. But Judge Ware held that the reasonable construction of the drafts, and the one con- formable to the intention of the parties, was that they were mere memorandums, showing to the merchant the balance of wages due and unpaid ; and their receiving them was not a waiver of any of their rights against the vessel or the master or owners. ' Davies' Adm. II. 112. OF THE seaman's REMEDY FOR TVAGES. 343 lent and a compensation for the discharge of the lien. The lien of seamen's wages exists in all cases as much against the government, becoming pro- prietors by way of purchase, or forfeiture, or other- wise, as it does against the particular things in the possession of a private person.^ 348. The master of an apprentice may recover his wages, whether taken on board with or without his assent. In the case of Eades v. Vandepert,^ the apprentice had been impressed, and detained on board the defendant's ship, which was a man-of-war. The only witness to charge Captain Vandepert with knowledge was the apprentice boy himself, who swore that, after he had been impressed and carried on board the ship, he told the defendant, the cap- tain, that he was an apprentice, and required his discharge, which was refused. It was held that this evidence was sufficient, and that the captain ought to have made inquiry into the truth of what the boy said; for after that information he detained him at his peril; and it was admitted that, if the indentures had been produced, the defendant would have been bound to have discharged the boy, 349. The owner of a skive may likewise maintain an action for his wages; and the contract must be construed witli reference to the lex loci contractus? If the Hlavc sliouhl desert during the voyage, neither ' United States v. Wilder, 3 Sura. R. 314. I 5 EaHt, 39, note. 8 Stone V. Godct, Bee's Adm. R. 95; Emerson v. Ilowlaud, 1 Mason, R. 45. 344 THE LAW OF SlIirPING. the master nor owner of the ship woukl be respon- sible to his owner for the loss. In the case of slavery, as to rights and remedies, the owner is substituted by the law in lieu of the slave. ^ 350. In suits where the mariners have a common interest in the point in contest, they are nevertheless permitted to testify for each other. The fact would work strongly against their credit, but it does not aflect their competency.^ But where they are di- rectly interested in the event of the suit, their testi- mony is rejected.^ The master is personally liable for wages, though the seamen may proceed m rem ' Stone V. Godet. Bee's Adra. R. 95 ; Carey v. The Betty, Ibid., 255. ^ Spurr V. Pearson, 1 Mason, R. 104 ; Hoyt v. Wildfire, 3 John. R. 518. Upon this point the common, civil, and maritime law, agree. Judge Peters, however, was in the habit of rejecting the testimony of mariners in suits where they were interested in the question, although not in the event of the suit. In the case of Thompson v. The Ship Philadelphia, 1 Peters' Adra. R. 210, he thus stated the principle upon which he proceeded : " On the point of admitting seamen to be witnesses for each other, it is settled here that one seaman cannot be a witness for another, if the witness and the party have a common interest in the point in contest. If the question be the loss of the ship, embezzlement equally affecting the whole crew, negligence, misfeasance, or mal- feasance, to which all must contribute in damages, one of the crew cannot be admitted a witness for another. But where special cir- cumstances distinguish cases, — where one, having made a similar contract with the other, the breach or performance whereof may happen without aflfccting the other, — where special indulgences are given to one, though not to the rest, — a seaman may be a witness for another. Where seamen are involved in similar breaches of contract, though the agreement of each is separate and independent, I hear them with caution. But this affects credit, not competency." => Ibid. OF THE seaman's REMEDY FOR WAGES. 345 against the ship, or in personam against the owner. If the vessel is not valuable enough to discharge the lien, or the owner is in bad circumstances, and the master solvent, he must paj the debt. It is his interest to throw the responsibility off himself; and this interest has been supposed, in the Courts of this country, to be sufficient, upon strict legal principles, to exclude him from testifying.^ 351. This doctrine, however, has met with a good deal of criticism, and is encountered by the opinion of Lord Stowell, in the case of The Lady Ann.^ The question arose in that case on the admission of a defensive allegation oflered on the part of the owners of the vessel, in opposition to a demand of wages by a mariner. The objection taken was that the master was an incompetent witness, and, conse- quently, that the owners were not at liberty to plead the letters which they received from him, stating the arrival of the ship in the West Indies, and the deser- tion of the party who brought the suit. But this objection was overruled. " I am not aware," said Sir WilHam Scott, " of any general objection to the competency of the master of a vessel as a witness in a suit for wages. The mariner has his election whetlicr lie will proceed against the owners, the master, or the ship; and in this case, the proceed- ings being instituted aLMinst the owners, the master ' The Phoenix, 1 Pet. Ad. K. t201 ; Mahjiic v. Ikll, J bid. 130; Atkyns v. lJurrows, Ihid. 244; Duiilap'a Adm. Practice, 243, 244; (jallfiway v. Morris, 3 Yates, II. 440; Tlic William Harris, Ware's 11. 370, 371 ; The Hope, 2 Gallis. 11. 48. ^ Edwards' Ad. 11. 236; sec Conkling's U. S. Adm. Gtl. 34G THE LAW OF SUIPPING. has no immediate interest in the suit, and therefore is not an incompetent witness by any rule with which I am acquainted, though it may certainly be necessary to watch his testimony with jealousy, as his conduct may constitute a material part of the adverse case." The master is an incompetent wit- ness to support any matters of defence set up which originate in his own acts, because for those acts he may be held personally responsible.^ 352. When the advance wages of a seaman are charged in the shipping-paper, the suppletory oath of the master is required to make it proof. Unsup- ported by his oath, it is no further evidence than any book charge.^ The master is not a competent witness to prove that a medicine-chest was on board, for the purpose of throwing the expense of medical advice on a seaman. For, if there were no legal exception to his competency, he would hardly be considered a proper witness to prove the sulliciency of the medicine-chest, or to satisfy a Court that it was accompanied with suitable directions for admi- nistering the medicine. But, by the Act of Congress of 1790,^ the master is made personally liable for the expenses of medical advice ; and therefore, if he were admitted as a witness, he would swear directly to his own discharge. He is, therefore, for that pur- pose, a clearly incompetent witness." 353. A receipt, signed by a seaman, in full for ' The William Harris, Ware's R. 367 ; Robinett v. The Exeter, 2 Rob. Ad. R. 201. It should be observed that, in this latter case, the master was two-thirds owner of the vessel. 2 The David Pratt, Ware's R. 495. " Ch. 29, s. 8. * The William Harris, Ware's R. 367. OF TUE seaman's REMEDY FOR T7AGES. 347 wages, is only prima facie evidence of payment. It is by no means conclusive. It is open to explana- tion by every kind of legal evidence. And it is of no greater effect, nor further conclusive on the rights of the parties, in consequence of having a seal an- nexed to it. A Court of Admiralty is, as to all matters falling within its jurisdiction, a Court of Equity, and is free from the artificial and technical rules of the common law in dealing with contracts between seamen and ship-owners.^ 354. We close this chapter by observing, that when the hirer of a vessel has the possession trans- ferred to him, and he appoints the master and crew, and sails her at his own expense, and has the entire control, he is considered as succeeding to all the rights and liabilities of the owners. lie is substi- tuted in their place, and is liable for the wages of the seamen.^ In the case of Skolfield v. Potter/ ' Tliornc V. White, 1 Peters' Adm. R. 178; Jackson v. White, Id. 170; Whiteman v. The Neptune, Id. 182; Thomas v. Lane, 2 Sumner's 11. 11; The David Pratt, Ware's R. 495; Harden v. Gordon, 2 Mason's R. 5G1. In this latter case, Judge Story decided that when a receipt is given in full of all demands, it is not to be taken in the Admiralty as conclusive. It is open to explanation, and, upon satisfactory evidence, may be restrained in its operation. IJut the natural presumption is in its favor; and that presumption will prevail, until it is displaced by direct proof or strong circumstances. In Whitney v. Eager, Crabbe's R. 422, it was held, that where the payment of a seaman's wages is refused unless he signs a receipt containing a release of all complaints against his ollicer.s, no attention whatever will be paid to such release. 2 ?, Kent, 13G; Reeve v. Davis, 1 Adol. k Kills, 135; Skolfield V. Potter, Davics' R. 302. 9 Davics' R. 392. See, also, to the same effect, The Sloop 348 THE LAvr OF snipriNG. .Tiuli:^e Ware lield, that when a vessel is let to the master, to be employed by him, and he to pay to the owners a certahi portion of her earnings, the owners will be liable to the seamen for their wages, though by agreement the master is to have the entire con- trol of the vessel, to victual and man her, and furnish supplies at his own expense ; unless, at the time of shipping, this contract is made known to them, and thev are informed that they are to look to the mas- ter as the only owner. 355. This doctrine is ably vindicated by Judge Ware, and mainly upon the ground that the money paid over by the master, under his contract, is paid as freight ; and the owners as receivers and having an interest in the freight, are liable to the seamen for their wages. " By the ancient maritime law," he observes, " the title of seamen to wages is made to depend on the issue of the adventure, for which they are engaged. Unlike other contracts of hiring, their right to compensation docs not depend alone on the fidelity and skill with Avhich they perform the services for which they engage ; but with whatever perseverance and courage they exert themselves, their right to compensation is suspended on contin- gencies, which may affect the ultimate result of the Fashion, American Law Jour., vol. iv., N. S. 279 ; Webb v. Pierce, 14 Law Rep. 200; llich v. Coe, Cowpcr, G3G; Story on Agency, 8. 298 ; The Ca.ssius, 2 Story'.s R. 93 ; The Nathaniel Hooper, 3 Sum. R. 577. But see contra, Taggard v. Loring, 16 Mass. R. 336; Emery v. Her.sy, 4 Greenl. 407; Thompson v. Hamilton, 12 Pick. 425 ; Cutler v. Thurlo, 20 Maine, 213 ; Thompson v. Snow, 4 Greenl. 264; Cutler v. Win.sor, 6 Pick. 335; Perry v. Osborne, 5 Id. 422; Planter v. Holmes, 10 Met. 402; Sproat v. Donncll, 26 Maine, 185. OF THE SEAMAN S REMEDY FOR WAGES. 349 voyage ; it is made dependent on what has been termed the fortune of the vesseh 356. " What, then, is this fortune to which the seamen must look? The ship, says Emerigon, in the condition in which she was at the time of her departure from the port of outfit, together with all the freight which is gained in the course of the voyage, form that fortune of the vessel which consti- tutes the pledge to the seamen for their wages.' The privileged hypothecation, then, he adds, allowed to the mariners, comprehends every part of the ship, and every part of the freight, according to the nature of hypothecation, which is iota in toto ei — iota in qua- lihet parte. Their privileged lien is entire over the whole, and is entire in every part. The ship and freight, with respect to wages, form one mass, and all that remains of either, at the end of the voyage, is pledged for their payment. The contract of the mariners, Emerigon goes on to say, is a species of copartner.ship. It is not, indeed, a copartnership as to all the effects of that contract, but as to some of its consequences; for the seamen have no claim to a remuneration, but to the extent of the effects em- Ijarked in the enterprise which they bring home. If all is lost, the mariners lose their wages, and they cannot then enforce tlie payment by a personal ac- tion against the master or owners. 15ut if all is not lost, whatever remains of the ship or freight is speci- fically pledged for their payment. Freight earned, and put ashore, is saved from the effect of a super- vening shipwreck, by which all that remains is lost. It is a partnersliip fund that has entered the common ' Trait dcs As-iiuranccs, ch. 17, bcc. 11. 350 THE LAW OF siiirriNG. chest, ami is hypothecated to the seaineu for their wages. 357. " It appears hy the testinioii}^ of the master, who was examined as a witness in the case for the respondents, that he has paid over to them, at dif- ferent times, $G00, and that on a cargo of lumber carried for them, the freight was $500, which has not been paid to him, but remains as part of the earnings of the vessel in their hands. In addition to this, the freight, on the cargo brought home in the vessel on her return to Bath, was received and collected by one of the owners, and is now in their hands. 358. " Now every dollar of this money was hypo- thecated to the seamen, as soon as it was earned, for their wages. To the amount due to them, it was their own hard earnings, and whoever received it as freight, received it subject to their claims. As the freight, says Emerigon, is the fruit of the vessel, it is just that it should first be appropriated to pay the wages of those whose labor has produced it. This destination of freight is derived from the nature of things, while their privilege against the vessel is against common right. ^ 359. " But it seems to me that the decision may more properly be put on a broader ground. Where the owners put their vessel into the hands of a mas- ter, to be employed by him on shares, I am prepared to hold as a just deduction from the principles and general policy of the maritime law, that they will ' Assurances, ch. 17, s. 11, No. 3. OF THE seaman's REMEDY FOR WAGES. 351 continue liable to the seamen for their wages, not- w^ithstanding the entire control of the vessel may be surrendered to the master, unless the seamen, at the time of their engagement, are notified that the master is to be considered as the sole owner, and that they are not to be liable. The rights of the seamen ought not to be affected by this private agreement between the master and owners. "O' 360. " Even if the doctrine of the modern decisions is admitted, and the owners are held not liable to merchants who furnish supplies, there are strong ob- jections to extending the principle to the contracts of seamen. They enter into their engagements in the confidence that they have the usual and legal securities for their wages. •One of these, to which a seaman haljitually looks, is the personal liability of the owners. But in this case, there will be in fact no owner, and the only personal security they have is that of the master. Another reason is, the freight, which is paid to the master, is the proper fund for the payment of the wages. In the hands of the master, the whole of it is liable for them. But here the freight is, from time to time, paid over for the hire of the vessel, and only one-half of it remains in his hands, at the close of their service, to respond for their claims. This private agreement between the owners and master, operates as a perfect surprise upon them. My opinion is, that they ought to be held as owners." 301. Tliis chiljoratc opinion ol". Judge Ware would seem to run counter to the current of American au- thority in analogous cases. There may be sullicieut 352 THE LAW OF SlIimNG. grouiuls to di-stinguish the case of supplies from the case of wages, but aside from equitable considera- tions, the same principle is equally applicable to both cases. They stand upon a common basis. Judge Curtis, however, in the recent case of Webb v. Pierce,' thus qualified the application of the general doctrine established by that decision. " To prevent misapprehension, I desire to state that I have ex- amined the able opinion of Judge Ware in Skolfield V. Potter, in which he charged the general owners of a vessel let on shares with the wages of a seaman. There are elements in that case on which the deci- sion may rest consistently with the principles upon which this case has been decided, and I do not in- tend to express any opinion as to a claim for wages on a general owner who has received freight earned in the voyage, for which wages are claimed." 362. In the recent case of The Sloop Fashion,^ it was held by Judge Betts, that a sloop and craft navigating the waters of a State, or its vicinity, and taken by the master on condition that he victual and man her, and divide the earnings of the vessel with the owner, if such arrangement is known to the hands or seamen, the vessel is exempt from liability to the seamen for their wages on such hiring. ' 15 Law Rep. 9. In this case it was held, that when a master hires a vessel " on shares," under an agreement to victual and man her, and employ her in such voyages as he thinks best, having thereby the entire possession, command, and navigation of the vessel, and the relation of principal and agent not existing be- tween the master and owners, the master thereby becomes the owner pro 7iac vice, during such time as the contract exists, and he, and not the general owner, is responsible for necessary supplies. ' 4 American Law Journal, N. S. 279, 280. PAET 11. CHAPTER I. OF PART-OWNERS. 363. Property in a ship may be acquired by two or more persons, either by building it at their own expense, or by the purchase of a part thereof of the sole owner, or by a joint purchase of the whole of another person. But, whether acquired by the joint building, or by a part purchase, or by a joint pur- chase, the parties, in the absence of all positive stipu- lations to the contrary, become entitled thereto, as tenants in common, and not as joint-tenants. In this respect, it will make no diiference whether the title is acquired at one and the same time, by and under one and the same instrument, or whether it is acquired at different times, and under different in- struments. This is the natural, if not the necessary result of the doctrine, that the jus accrescemU has no existence among merchants, or in the business of commerce and navigation. A different doctrine, which should introduce into the maritime law the narrow doctrine of the common law, as to joint-te- nancy and the right of survivorship, would be fatal to tlio interests of commerce, and overthrow the plain dictates of ))nl)li(; jjolicy. The whole course of commercial usag*.' ;iii(l opinion lias selllcd (lie doc- trine the other way; and, accordingly, upon the 356 THE LAW OF SHIPPING. death of one of the part-owners, his executors and administrators become tenants in connnon of the ship with the survivors. Of course, the general rule of law, as to the rights of tenants in common, pre- vails in regard to ships, that each part-owner can sell only his own share thereof; whereas, in cases of partnership (although not in cases of joint-tenancy), any one partner can sell the entirety of the ship.^ ' Story on Partnership, 584. See also Campbell v. Steele, 1 Jones, 394 ; Knox v. Campbell, 1 Barr, 3GG ; Hopkins v. Forsyth, 2 Harris, 34 ; Patterson v. Chalmers, 7 B. Monroe, 595 ; Helm v. Smith, 20 Com. Law Cond. R. 300; Hewitt v. Sturdevant, 4 B. Mon. 459; Hinton v. Law, 10 Missouri R. 701. It was held in this case, that one part-owner of a boat cannot sue the others at law for services rendered by him as clerk, under employment by the captain, also a part-owner. Moody v. Buck, 1 Sandf. S. C R. 304; Macy v. De Wolf, 3 Wood. & M. 193. "To hold part- owners to be partners," said Judge Woodbury, in this case, " with- out an express contract to that effect, would not only violate the legal principles which govern other tenancies in common, but enable one part-owner, — though of only one-hundredth part, — to sell the whole ship or whole property owned in common, which is neither in conformity to usage or the fitness of things in such adventures." But see Shirley v. Steamer Bride, 5 Louis. R. 200, where it was held, that owners of steamboats are commercial part- ners. This decision was based upon Article 279G of the Civil Code. The doctrine laid down by Judge Story, however, which I have incorporated in the text, and in the very language which he em- ploys, is abundantly supported upon every point by the numerous authorities which he cites, and is without doubt the rule of Ameri- can law. An opinion, however, has been expressed, and by a very learned and eminent author (we refer to Abbott on Shipping, p. 1, ch. 3, § 1), that when a ship is not conveyed in several and dis- tinct shares, but the entire ship is granted to a number of persons generally, that, in such a case, they become joint-tenants at law, and that the tu\c,jus accrescendi inter mercatores locum noa hahet, OF PART-OWNERS. 357 3C4. While, however, the general relation between part-owners is that of tenants in common, it must not be understood that it is invariably and indis- pensably so. On the contrary, a ship may be the subject of partnership as well as anything else. But when this occurs, it constitutes an exception to the general rule, and must be specially shown. When a person is to be considered as part-owner, and when as a partner, in a ship, depends on circumstances.^ which is applicable to a ship, is to be enforced only in a Court of Equity. The point is a novel one, and there has not been, so far as I know, any direct adjudication upon it. It is not, however, unusual to omit any specification of the shares of each part-owner, both in the register and bill of sale ; and it never has been held, that such an omission made the parties joint-tenants with benefit of survivorship. See IMcrrill v. Bartlctt, G Pick. 46 ; Thorndike V. De Wolf, G Ibid. 120; Glover v. Austin, Ibid. 209, 221, 222; Ohl V. Eagle Ins. Co., 4 Mason, 172, 390; Gould v. Gould, G Wend. 2G3 ; Hopkins v. Forsyth, 2 Harris, 34 ; Nicoll v. ^lum- ford, 20 John. R. Gil ; Abbott on Ship., p. 124. See also 8 Kent, 154. We may here observe, that while it is the settled principle, that the interest of part-owners is so far distinct that one of them can- not dispose of the share of the other, yet if the co-tenant subse- quently ratifies the sale, it becomes in effect a ratified sale by all. If a co-tenant sells the common property as exclusively his own, sucli sale is a conversion, and the other tenant may maintain trover therefor against him ; or he may, in case the purchaser also sells and delivers the property as his own, iii:iiiit;iin trover against such purchaser for the subsequent conversion. The sale by one tenant is deemed a constructive destruction of the property held in com- mon, but a mere dispossession of one tenant in common by his co-tenant, docs not amount to such constructive destruction of the propt rfy, and docs not afi'iird a ground of action in trover. Sco Ablfott on Sliipping, p. 128, note. » Iliirding v. Koxcroft, 6 Grcenlcaf's, R. 77; 3Iacy v. Do Wolf, 3 W. & M. 193; I'hillipg v. Puriiigton, 15 Maine, 425; Scabrook 358 THE LAAA' OF SIIirPING. 365. Ships were "originally invented for use, and profit, not for pleasure or delight; to plough the V. Rose, 2 Hill's (S. C.) Ch. R. 555 ; Lamb v. Durant, 12 Mass. 54 ; Nicoll v.' Muiuford, 20 John. Gil ; 1 East. 20, 8 B. & Cres. 12; 3 Kent's Com. 154 j Doddington v. Ilallett, 1 Vcsey, 497. The doctrine declared by Lord Hardwickc in this case, so far as it affirms, that a ship may be the subject of a partnership, is the settled law of this country. But, Mr. Belt, in his '< Supplement to the Reports of Vesey, Senior," pp. 205-209, gives the agree- ment between the parties, and observes : " It appears rather sin- gular that Lord Ilurdwicke should have said so much as is re- ported on the subject of the contractors being partners, since the agreement between them on the inception of the undertaking nega- tives such a supposition as strongly as words could make it, and since this very argument is pressed by the defendant's counsel, towards the top of page 498." Lord Hardwicke might have stated the proposition in too broad terms, he might have erred in apply- ing it to the circumstances before him, but the principle itself is clear, that the several owners of a ship may stand to each other in the relation of partners, the ship being the subject of the partner- ship. In the case of Exparte Young, 2 Ves. & Beames' R. 242, a petition was presented by part-owners of a ship, contending that, though tenants in common, they were to be considered as joint owners, and upon bankruptcy, the distribution was to be as of joint property, to be applied first to the joint debts, according to Doddington v. Ilallett, especially as the bankrupts had been in- trusted as the managing owners. Lord Eldon began as usual with doubting. He thought it would be a very strong act for him, by an order in bankruptcy, from which there was no appeal, to reverse a decree made by Lord Hardwicke in a cause. " From a manu- script note, I know it was his most solemn and deliberate opinion, after great consideration, that the contrary could not be maintained ; and there is no decision in equity contradicting that." But after a liberal indulgence of his doubts, his lordship, at a subsequent day, said, that after great consideration, he must decide against the case of Doddington v. Ilallett. The opinion of Lord Hard- wicke was followed by the N. Y. Court of Appeals in Mumford v. Nicoll, 20 John. Gil, and by Chancellor Do Saussurc in the case OF PART-0"U'NERS. 359 sea, not to lie by the walls.''^ Hence, where part- owners have entered into no express agreement by which the employment of the vessel is to be con- trolled, the law in favor of commerce will interpose, and compel obstinate and dissenting part-owners, to yield the j)roperty, to be employed by the majority in value, " upon any probable design." 366. The jurisdiction of Courts of Admiralty in cases of part-owners, having unequal interests and shares, is not, and never has been applied to direct a sale, upon any dispute between them as to the trade and navigation of a ship engaged in maritime voy- ages, properly so called. The majority of the owners have a right to employ the ship in such voyages as they may please ; giving a stipulation to the dissent- ing owners for the safe return of the ship ; if the latter, upon a proper libel filed in the Admiralty, require it. And the minority of the owners may employ the ship in the like manner, if the majority lecline to employ her at all. If the minority hap- }en to have possession of the ship, and refuse to em- ploy it, the majority may, upon a warrant to arrest tie ship, obtain possession of it, and send it to sea, u:)on giving the customary security for the safe re- tiru of the ship.^ ofScabrook v. Ilosc, 2 Hill's (S. C.) Ch. R. 553; 1 Story, Eq. Juis., S. 400; Iloxicr v. Carr, 1 Sum. 173 ; 4 Maule & Sclwyn, 451. Molloy, B. 2, ch. 1. "The Stcrimhoat Orleans v. Phoebus, 11 Peters' II. 175; The Ap41o, 1 llagg. 300, 312; The Petrel, 3 Ilagg. Adm. 11.200. Sui? in the Admiralfy touching property in ships, arc of two kin'9 : one, called pciitort/ suits, in which the mere title to the 300 THE LAW OF siiirriNG. 3G7. When the part-owners are equally divided in opinion upon the question whether the ship shall be employed in any voyage or adventure whatsoever, the law, looking to the considerations of commercial policy already mentioned, gives effect, through the like Admiralty process, and upon the like condition, to the will of those who are in favor of her employ- property is litigated and sought to be enforced, independently of any possession, which has previously accompanied or sanctioned that title; the other, called possessory suits, which seek to restore to the owner the possession of which he had been unjustly de- prived, when that possession has followed a legal title, or as it is sometimes phrased, when there has been a possession under a claim of title with a constat of property. The distinction between petitory and possessory suits, admitted into the practice of the Bri- tish Admiralty, and permitting it to exercise jurisdiction in cases under the latter denomination, but excluding it in cases under the former, is unknown in our Admiralty Courts. The Tilton, 5 Ma- son, 465. See also. The Aurora, 3 Rob. 133, 136 ; The Warrior, 2 Dod's R. 288 ; The Pitt, 1 Hagg. R. 240. It is proper to ob- serve, that it was formerly held by the English Admiralty, and for a long period the right was exercised, to examine and to pronounce for the title of ships on questions of ownership. It was not until some time after the Restoration, that the Courts of common law interposed, and claimed that the jurisdiction belonged exclusively to them. Since that time, the Admiralty has not interfered with questions of this nature, except when the consideration of propert; arises incidentally, and in such a manner as is not disputed be twecn the parties. The former jurisdiction, however, is nor restored by the Act of 3 and 4 Victoria, chap. 65, which is ent- tlcd an " Act to improve the practice and extend the jurisdicti The Apollo, 1 Ilagg. Adm. II. lOG ; Jouanneau v. Shannon, 4 Louis. R. 330. » Gould V. Stanton, 16 Conn. R. 12 ; Card v. Hope, 2 B. & C. 661. In the whaling business, the owners of the vessel, as a OF PART-OWNERS. 363 369. When one part-owner of a vessel, known to be so by the other owners, did not, when he became a part-owner, comply with the Acts of Congress, but not for any purpose of fraud or concealment, and another part-owner obtained an enrolment of the vessel, swearing that he and some others were sole owners, without mentioning the name of the first part-owner, such omitted part-owner is entitled nevertheless to ask for security from the other own- ers, for the safety of the vessel on a voyage not ap- proved by him.^ general thing, appoint some person, usually one of their number, to be manager of the concern. This person orders the necessary repairs, furnishes the supplies, procures the seamen, in short, as ship's husband, does all that is necessary for the voyage, charging each shareholder his proportional part; and upon the return, after paying expenses, and deducting the usual commissions for his own services and allowances, and paying the officers and crew such proportions as they stipulated for, divides the balance, being the net proceeds, among the joint owners of the vessel, in proportion to the number of shares by them respectively owned. These agents, thus acting for the whole, become responsible to those who may happen to be owners. In this way, that delay and those con- flicts of opinion are avoided, which would arise from the meetings and consultation of such a number of persons as frequently have an interest in these voyages. This agent having been appointed by a majority of the shareholders, is supposed to speak and act the sentiments of the majority ; and in ordinary circumstances, that will most prevail. Gould v. Stanton, siij>ra. See Macy v. De Wolf, :J W. & M. 103. ' The Lodcmia, Crabbc's 11. 271. 'I'lie dissentient part-owner in tliis case owned one-eighth of the vessel, and he was secured in double the value of his share. It is provided by the oth section of the Act of July 29, ISilO, That the owner or agent of the owner of any vessel of the United States, applying to a collector of the customs for a register or en- rolment of a vessel, shul), in addition to the oath now prescribed 364 THE LAW OF SHIPPING. 370. As the law, upon considerations of national policy, enables a majority of the part-owners to employ the ship even against the will of the minority, so, as an incident of that power of employment vested in the majority, they have a right to appoint the oilicers and crew of the ship, and to displace them at their pleasure. But such a right carries with it a dut}^, — the duty of exercising a free and impartial judgment in the choice of every person who is to be intrusted with the management of the outfit, and with the navigation of the ship, ut dentur difj7iiori. Any contract, therefore, which is calculated to fetter the judgment, and bind some of the part-owners to concur in the nomination of particular persons, at the peril of an action, is a violation of that duty. The violation of duty becomes greater and more odious if the contract be founded on motives of peculiar gain and advantage to the contractor ; for all the part-owners ought to share rateably in every profit that may be made of the ship. And if such contracts were allowed by the law, they would directly operate to discourage all persons from be- coming part-owners of ships. The duty, however, is owing not only to the charterers and other part- owners of a ship, but also to all whose life or pro- perty may be embarked in her. And, hence, a vio- lation of the duty is contrary not only to the inte- rest of the charterers and part-owners, but also to by law, set forth in the oath of ownership, the part or proportion of Buch vessel belonging to each owner, and the same shall be in- serted in the register of enrolment; and that all bills of sale of vessels registered or enrolled shall set forth the part of the vessel owned by each person selling, and the part conveyed to each per- son purchasing. OF PART-OWNERS. 365 another most important object, namely, the pro- tection and safety of the lives and property em- barked on the sea. All such contracts are utterly void. An agreement, therefore, by two part-owners, who were the ship's husbands, with a third person, to sell him a part of their shares, and he to be appointed master (they holding the majority of interests), and they to be continued as the ship's husbands, and he or they to have the appointment of his successor, as master, has been held to be utterly void.^ 371. A Court of Admiralty will entertain a suit to dispossess the master, although he may be a part- owner. The dispossession of a master is not in its nature an uncommon proceeding : all that is required in cases where the master is not an owner, is that the majority of the proprietors should declare their disinclination to continue him in possession. In the case of a master and part-owner, something more is required before a Court of Admiralty will proceed to dispossess a person who is also a proprietor in the vessel, and whose possession, therefore, the common law is upon general principles inclined to maintain. It will require some special reason before it will interpose ; such, for instance, as that the master is irregular in his accounts with his owners.^ Mr. Justice Story lays it down as a rule of the connnon as well as the French law, that the majority of ' Card V. Hopo, 2 Barn. & Tr. OGl, 074, 075; Story on Tart- ncr.sliip, 000, 007. 'The Sisters, 3 Rob. Ad. K. 213; The New Draper, 4 Hob. 287 ; Edwards' Ad. K. 242. 366 THE LAW OF siiirriNG. owners may displace the master at their pleasure, even altliough he may be a part-owner/ 372. lie cites no authority for the position that the common law confers this power upon the major part of the owners ; and it may well be doubted if they have such power. If the Courts administering the maritime law of the country refuse to displace a master, who is also a part-owner, upon the mere application of the majority of owners, who have no ground for their application but their will, inclina- tion, or pleasure, then we apprehend that they can- not, of their own mere motion, do that which the maritime law will not permit to be done when its aid is directly invoked for that purpose. It is true, the two systems of law may differ upon this subject ; but we are aware of no decision of any Court of common law, or even the dictum of any Judge, that authorizes us to suppose that any such difference docs in fact exist. 373. We have already seen that where a majority ' Story on Partnership, GOG ; Boulay Paty, Droit Comm., tome i., tit. 3, p. 340. Where a party, late master, and claiming to be part-owner, of a vessel, prayed for possession, and also for security for her safe return from a voyage projected by the other owner, and the question of title depended on the state of the accounts between the parties, which could not conveniently be settled before the Court : an interlocutory order was made, that the vessel be delivered to the libellant, to proceed on the projected voyage, on his own stipulation for her return and submission to the order of the Court, and on payment of the costs accrued at the date of the order, but the ultimate liability for those costs to await a final decree. The North America, Crabbe, 420. OF PART-OWNERS. 367 of the part-owners decline to employ the ship at all, the minority, upon application to the Admiralty, will be permitted to send her on a voyage, upon the usual conditions and stipulations.^ And it has been contended, by eminent jurists, that they had the same right to employ her when the majority of the part-owners declined, not to employ her at all, but declined to employ her at the particular time and upon the particular adventure. " Many of the foreign jurists contend," says Kent, "that even the opinion of the minority ought to prevail, if it be in favor of employing the ship on some foreign voyage. Eme- rigon, Ricard, Straccha, Ruricke, and Cleirac, are of that opinion. But Valin has given a very elaborate consideration to the subject, and he opposes it, on grounds that are solid ; and he is sustained by the provisions of the old ordinance, and of the new code. Boulay Paty follows the opinion of Valin, and of the codes, and says that the contrary doctrine would enable the minority to control the majority, contrary to the law of every association, and the plainest principles of justice."' And this seems to be the prevailing opinion among learned jurists and writers of our own time.^ 374. But a mere wanton or obstinate refusal of the major part of the owners to employ the ship — a ' Ante, p. 3G0. « 3 Kent's Com. I'yC); Ord. do la Murine, liv. ii., tit. 8, art. 5; Valin'a Com., torac i., 573-584; Code de Commerce, art. 220; Cours de Droit Com. Mar., tomo i., 339-347. "See Story on rartncrsliip, 008; 3 Kent, 150; Abbott on Ship., pp. 70-70. 3G8 THE LAW OF SHIPPING. case not likely to occur often — the law will not countenance or permit. It is a principle discernible in all maritime codes, that every encouragement and assistance should be afforded to those who are ready to give to their ships constant employment; and this, not only for the particular profit of owners, but for the general interests and prosperity of commerce.^ 375. When the part-owners have equal interests, and are equally divided as to the employment of the ship upon any particular voyage or adventure, we have various and conflicting opinions as to what is to be done in such a posture of alDiirs. " In the predicament here mentioned," says Mr. Justice Story, "several cases may arise : 1. When the part-owners are equally divided as to the employment of the ship upon any voyage or adventure whatever, one being in favor and the other against any such employment, upon the ground that, at the time, it will be either unprofitable, or very hazardous, under all the circum- ' Willings V. Blight, 2 Peters' Adra. R. 292. "If agriculture be, according to the happy allusion of the great Sully, ' one of the breasts from which the state must draw its nourishment,' commerce is certainly the other. The earth, the parent of both, is the immediate foundation and support of the one, and ships are the moving powers, instruments, and facilities, of the other. Both must be rendered productive by industry and ingenuity. The interests and comforts of the community will droop, and finally perish, if cither be permitted to remain entirely at rest. The former will less ruinously bear neglect, and throw up spontaneous products ; but the latter requires unremitted employment, atten- tion, and enterprise, to insure utility and profit. A privation of freight, the fruit and crop of shipping, seems, therefore, to be an appropriate mulct on indolent, perverse, or negligent part-owners." Peters, J., in Willings v. Blight, supra. OF PART-OWXERS. 3G9 stances ; 2. "Where each part-owner is equally willing to have the shijD employed in some voyage or adven- ture, but they differ as to the voyage ; or, 3. Where each part-owner is ready to take the whole ship for a voyage to be planned by himself; but he will not engage wdth the other in any voyage whatsoever."^ 375 a. In the first case, it is the opinion of learned writers, and supported by the practice of the English Admiralty, that the part-owner who is willing to employ the ship for a voyage, or adventure, is en- titled to have it delivered to him for that purpose, upon giving the usual security.^ 376. In the last two cases, the part-owners present equal claims to the Court, and there is no sufficient grounds for preferring either. Under such circum- stances, therefore, the general maritime law, with, equal wisdom and justice, authorizes a sale of the ship, and divides the proceeds among the owners according to their respective shares. Judge Hopkin- son, however, in the case of The Seneca,^ in a very ingenious and imposing opinion, refused to decree a sale, on the a[)})lication of a part-owner, placed in the predicament here mentioned. 377. But, on appeal, and after a very a])lc and elaljorate argument. Judge Washington reversed the • Story on Partnership, p. 009. " Molloy, I), ii., ch. 1, h. 2, p. 308; J Montague on I'artn. b. ii., ch. Ij Ahbott on Shipp., p. 75; Story on Partnership, GOO, 610, and authorities cited. » 1 Gilpin's 11. 10. 24 370 THE LAW OF SUIPPING. sentence of the District Court, and decreed a sale of the vessel. He said the law applicable to the case was not found in the practice or adjudications of the Admiralty Court of England/ nor in those great sources of maritime jurisprudence, the Rhodian law, and the laws of Oleron and Wisbury. " Our atten- tion is, then, invited to the civil law, or, rather, to the Roman marine code, — another legitimate source of general maritime law, in which we find sundry wise provisions for adjusting disputes between part- owners of vessels, from which the three following rules may be deduced: — 1. That the opinion and decision of the majority in interest of the owners, concerning the employment of the vessel, is to govern ; and therefore they may, on any probable design, freight out or send the ship to sea, though against the will of the minority; 2. But if the majority refuse to employ the vessel, though they cannot be compelled to it by the minority, neither can their refusal keep the vessel idle, to the injury of the minority, or to the public detriment ; and since, in such a case, the minority can neither employ her themselves, nor force the majority to do so, the vessel may be valued and sold ; 3. If the interests of the owners be equal, and they differ about the employment of the vessel, one-half being in favor of employing her, and the other opposed to it, in that case the willing owner may send her out." 378. Having traced the maritime law thus far, and shown that neither of the foregoing rules applied to « Sec Ouston V. Hebdcn, 1 Wils. 101 ; The Apollo, 1 Ilagg. Ad. R. 30G. OF PART-OWNERS. 371 the case before liiin, in wliich there were no unequal interests, and no unwilling owner, but each party desirous, and equally desirous, to employ their ship. Judge Washington turned his attention to the French Ordonnance de la Marine, and decided the cause upon the authority of the 5th and 6th articles of that code.' There has been no other reported decision upon this point ; but the opinion of Judge Washing- ' See this case in 18 American Jurist, 48C. The following is the 6th article of the code : "No person may constrain his partner to proceed to the public sale of a ship held in common, except the opinions of the owners be equally divided about the undertaking of some voyage." Valin's exposition of this article is very satis- factory. In his first volume, p. 585, he says : " The case excepted in this article is, ' when the opinions of the parties are equally dividej in the undertaking of some voyage,' upon which we may remark that the question is not of two equal opinions, of which one is to leave the vessel without any kind of voyage, and the other to undertake such or such a voyage, there being no doubt in that case that the opinion favorable to a voyage ought to prevail, saving the right to discuss the projected voyage, but solely of the case of two opinions, equally divided upon the particular entcr- pri.se projected by one moiety of the persons interested, and re- jected by the other moiety, whether that moiety proposes on its part another voyage, or confines itself to a disapproval of it, pro- vided, nevertheless, that it gives plausible reasons for its conduct; otherwise, this would have the air of an absolute refusal to permit the vessel to be navigated, which justice could not tolerate, being contrary to the object of the vessel, to the original intention of the parties, and to the interests of commerce." The juri.sdictioii of the Admiralty to decree a sale of the vessel, where there is a di.spute between the part-owners, and fraudulent conduct is charged again.st one of them, was asserted by Judge Bcc, in the case of Skrinc v. Sloop Hope, lice's Adm. K. 2. Sco also the autlioritica cited upon this subject in Story on Partner- ship, p. 015, G18; 3 Kent's Cora., p. 154, note (a); Conkliug's Adm. 254-257. 372 THE LATT OF SUIPPING. ton has the support of the most eminent authority, and expresses, I apprehend, the rule of American laAV.^ 379. The repairs of a ship, and necessaries for the employment of it, ordered by one part-owner, are a charge upon all the owners, and, when ordered in a foreign port, constitute a lien upon the ship. When the order is given by the master, the creditor has his liabihty, as well as that of the owners, the master being considered their agent.' If, however, the repairs are made or the necessaries furnished upon the exclusive credit of the master, or the ship's husband, or of any other person, — one of the part- owners, even, — in that case the ship-owners are not liable. The law gives a remedy to the person making repairs, or furnishing supplies, — an ample remedy, a threefold remedy ; but, if he chooses to waive it, and enters into an express contract, upon the exclusive credit of another, without any intention of resorting to the owners, he is at liberty to do so. And he cannot afterwards, when he finds that the security which he deliberately chose is worthless, resort to the original security, which he deliberately aban- doned.^ ' Vide Benedict's Admiralty, p. 40, as to jurisdiction of Admi- ralty Courts to decree a sale of a ship. =» Muldon V. Whitlock, 1 Cowen, K. 290; Carlisle v. Steamer Eudora, 5 Louis. 11. 15; Chapman v. Durant, 10 Mass. R. 47; Scottin V. Stanley, 1 Dall. II. 129 ; Schermerhorn v. Soines, 7 John. R. 311. 3 Hurscy v. Allen, G Mass. R. 1G3 ; James v. Bixby, 11 Mass. R. 34 ; Cox v. Reid, 1 Payne & Carr. R. 602 ; Reid v. White, 5 Esp. R. 122 ; Ex parte Bland, 2 Rose, 91 ; Stewart v. Hall, 2 Dow. P. R. 29. / OF PART-OTTN-ERS. 373 380. T7hat circumstances will amount to giving exclusive credit, so as to discharge the owners, does not admit of being determined by any rule of uni- versal application. Generally, however, if the party who gives the credit knows that there are other part-owners, but charges the repairs or supplies to the part-owner who orders them, he is presumed to give an exclusive credit to him. But merely re- ceiving payment from one part-owner for his share, or charging the master, or ship's husband, or other agent, with the debt, will not of itself amount to giving an exclusive credit to them which will dis- charge the owners. Ordinarily, all the part-owners should be joined in a suit by the common creditor ; but where the credit is given, and the creditor does not know at the time that there are other part- owners, he may sue liim alone from whom he re- ceives the order. ^ In this latter instance, not know- ing that there were other part-owners when he gave the credit, he may join them all in the suit, for they are all liable. No exclusive credit was intended to be given ; for it cannot be inferred, from any act or knowledge of the party, that he elected to give exclusive credit.^ 381. By the civil law, the bare circumstance of persons being joint owners of a l)oat, does not make them responsible in aolido ; l)nt if they are associated • Story on rartncrHhip, s. 455 ; Abbott on Sliipp., 134. Seo also Leonard v. Harrington, 15 John. R. 298; Marquand v. Webb, 10 [l,id. S«>; Thompson v. Finder, 4 C. & P. 158. ' Story on Partnership, h. 455; Thomson v. Davenport, 9 B. & C. 78. 374 THE hAvr OF snirpiNG. together for the purpose of carrying goods and pas- sengers for freight or hire, they are responsible jointly and severally. And this, notwithstanding the losses happened by the fault of the master of the boat, and notwithstanding some or all of the owners were absent, and unable to prevent such loss/ By the common law, part-owners are liable in soUdo for all the debts contracted upon account of the ship, or other common property. That law does not, like the civil, restrict the liability of each part-owner to the payment of his own share or proportion of the com- mon expenditure, when there is no express agree- ment to be bound in soUdo. It regards them as standing to each other as qiiasl partners, accountable for the excess which one should have advanced or paid beyond the other ; or as tenants in common of a chattel, entitled to a remedy for any money ex- pended on the common property beyond the due proportion.^ 382. When repairs and supplies are ordered by one part-owner, and he gives to the creditor therefor, his negotiable promissory note, the other part-owners are not thereby discharged, unless it was intended as an absolute payment of the debt. Because by the common law, wliich is the law in this particular of all the vStates of the Union, except Massachusetts and Maine, a note taken in payment of a debt is or- dinarily but a conditional payment thereof; that is, I David V. Eloi, 4 Lou. 11. lOG ; Burke v. Clarke, 11 Lou. R. 206, and authorities therein cited from the civil law. * Gardner v. Cleveland, Pick. R. 334 ; Story on Partnership, §456. OF PART-OWNERS. 375 it is an absolute payment only when duly paid. The presumption, prima facie, of the common law is, that a note taken for a debt is a conditional payment only; but this presumption may be rebutted by proof, that it was taken as an absolute payment. On the contrary, in Massachusetts and Maine, the pre- sumption is, prima facie, that a note taken for a debt is an absolute payment, but this presumption may be rebutted by proof, that it was intended as a condi- tional payment only.^ 383. If, however, the creditor should take a note from the ship's husband, or other agent of the part- owners, and give a receipt therefor, as if the note were a discharge of the debt, and this enables the agent to settle with his principals, and receive from them a sum of money or other advantage, which otherwise he would not have been able to obtain, and the principals do in fact settle with the agent, they cannot be afterwards held responsible upon the contract of their agent, if he fails to pay. Because the creditor has so dealt with the agent as to give all parties to understand that the agent has dis- charged the debt.^ ' The Barque Cbusan, 2 Story's R. 455; Peter v. Beverly, 10 Peters' 507 ; Abbott on Sbipp., p. 135, and note ; Arnold v. ('amp., 12 John. 411 ; Muldon v. Wbitlotk, 1 Cowon II. 290; lliggius V. Packard, 2 Hall (N. Y.) 517. ^ Wyatt V. The Marquis of Hertford, 3 East's R. 147 ; Chccvcr V. Smith, 15 John. 270; Muldoti v. Wbitloek, 1 Cowcn R. 290. "If a creditor of the principal," says Judge Story (Com. on Agency, § 4.33), "settles with the agent, and takes a note or other security from the latter for the amount, due by the principal, although, as between the parties, it i.s intended only as conditional 37G THE LAW OF SHIPPING. 384. The ship's husband, whom it is usual for the several part-owners to appoint, is their agent or com- missioner. He may be a part-owner, or a stranger. His powers are by mandate or written commission by the owners, or by verbal appointment ; the lat- ter chielly when he is also part-owner. His duties are, 1. To arrange everything for the outfit and re- pair of the ship — stores, repairs, furnishings; to enter mto contracts of affreightment ; to superintend the papers of the ship. 2. His powers do not ex- tend to the borrowing of money ; but he may grant bills for furnishings, stores, repairs, and the neces- sary arrangements, which will bind the owners, although he may have received money wherewith to pay them. 3. He may receive freight ; but is not payment ; yet, if the creditor gives a receipt, as if the money were received, or the security were an absolute payment, so that the agent is thereby enabled to settle, and does settle, with the prin- cipal, as if the debt had been actually discharged, and the princi- pal would otherwise be prejudiced, the debt will be deemed, as to the latter, absolutely discharged. Upon this ground, when work was done for the principal, and the amount was presented to his steward, who gave his own check on a banker for the amount ; and thereupon the creditor gave a receipt for the money on account of the principal; and upon the dishonor of the check, the agent accepted a draft for the amount, payable on time; it was held, that if the principal had in the mean time settled his accounts with his steward, or had dealt with him differently in consequence of that receipt, so that he would be prejudiced thereby, the principal would be discharged. The same doctrine would apply to the case of a ship's husband, or a shipmaster, contracting a debt for sup- plies, or for repairs of the ship, where an exclusive credit is origi- nally given to him, or an absolute payment is afterwards acknow- ledged, by a receipt upon a note or other security being given by such agent for the amount, whereby he is enabled to settle with, and to receive the amount in credit or otherwise, from the owners." OF PART-0T7NERS. 377 entitled to take bills instead of it, giving up the lien by which it is secured. 4. He has no power to in- sure for the owner's interest without special autho- rity. 5. He cannot give authority to a law agent that will bind his owners for expenses of a lawsuit. 6. He cannot delegate his authority. Such is the summary which Mr. Bell, in his work entitled, Prin- ciples of the Law of Scotland,^ has given of the powers and duties of a ship's husband. ' Page 449. " It is usual," says Mr. Abbott (Abbott on Shipp., 136), " for the several part-owners to appoint a person, frequently one of their own number, to be the manager of their joint concern, their general agent in the use and employment of the vessel, under the name of ship's husband. Ilis duties and powers as such are often defined and limited by the terms of a special agreement for that purpose between him and his employers, or co-owners. When no such agreement has been made, he is to exercise an im- partial judgment in the employment of tradesmen and the appoint- ment of officers ; and be careful that his choice in the situation of a master be not biassed by any private pecuniary transaction. He is to see that the ship is properly repaired, equipped, and manned — to procure freights or charter-parties — to preserve the ship's pa- pers — to make the necessary entries — adjust freight and averages — disburse and receive moneys, and keep and make up the accounts as between all parties interested. His acts for these purposes arc considered to be the acts of all the part-owners, who arc liable on all contracts entered into by him for the conduct of their common concern — the employment of the ship. Yet, when a tradesman brought an action for cordage against the owners of a ship, and it was proved that he had taken a bill of the managing owner for the amount, which was dishonored, and renewed, and dishonored again, Lord EUonborough said, 'If the plaintiff, dealing with the managing owner, has adopted him, he has discharged the others. If he has adjusted accounts with liim (in that footing, the other defendants arc entitle! to thr benefit of it.'" See also, 1 Bell's Com., p. 411; Story's Com. on Agency, §30; Turner v. Uur- rows, 8 Wend. II. 144, 151. 378 TUE LAW OF snirpiNG. 385. The ship's husband, although appointed by the owners, and constituted their agent, with respect to the repairs, equipment, management, and other concerns of the ship, has no authority as such to bor- row money on their account, or to insure the ship, or to pledge the shares of the several owners for the expenses of a lawsuit. Nor is the power of a part- owner in these particulars, without an express or implied delegation of authority from the other own- ers, more extensive than the power of a ship's hus- band.' Hence, neither a ship's husband, nor part- owners, who insure the interest of their co-owners in a vessel without express authority, can recover the premium paid by them.^ It would be otherwise, if the several owners should afterwards sanction the insurance, in which case the underwriters would be bound, notwithstanding the insurance was originally effected without authority.^ o8G. The admission of a partner, with reference to a subject of copartnership, is binding upon the firm ; but this principle is not applicable to the case of an admission of a part-owner, with reference to a subject of copart-ownership. Such admission is not binding on his copartner." Neither the managing owner, ' Bell V. Humphries, 2 Starkie, 345 ; French v. Backhouse, 5 Burr. 2727; Campbell v. Stein, G Dow. 135; Hooper v. Surky, 4 Campb. II. 67. 2 Turner v. Burrows, 8 Wend. R. 144. See also, French v. Backhouse, sitj)ra ; Bell v. Humphries, 2 Starkie's R. 345 ; Law- rence V. Sebor, 2 Caines' II. 203. • Lucena v. Crawford, 1 Taunt. 325 ; Iloath v. Thompson, 13 East, 274 ; Ilagedorn v. Olivcrson, 2 M. & Sel. R. 485 j Turner V. Burrows, supra. * Jaggcrs T. Brunnings, 1 Stark. 14. OF PART-OWNERS. 379 nor ship's husband has any power to purchase a cargo on the credit of the owner. To bind them, upon any contract, made by such agent, beyond the outfit, care, and employment of the vessel, it must be shown that the agent has a superadded authority to make such contract.^ 387. It is the prevailing doctrine, indeed there is no adverse decision upon this point, that the ship's husband, whether he be a part-owner or stranger, has no hen upon the ship for his disbursements and outfits. We are unable to perceive any solid reason or substantial grounds of policy, for the rule that deprives him of this security. He stands upon the same footing with the master in this particular, and we have endeavored to show elsewhere, that by the general maritime law, and upon a principle of com- mon justice, the latter is entitled to the security of the ship for his disbursements on account of the ship. It is, therefore, unnecessary to repeat what we have already said. We may remark, however, that if the one is entitled to a lien upon the ship, the other is equally entitled, and upon the same grounds. If this lien is denied to one, consistency demands that it sliould be denied to the other. 388. The law, however, gives the ship's husband, if he is a part-owner, a lien for his disbursements and outfits upon tlie proceeds and profits of the voyage or adventure undertaken upon joint account and joint profit, as a sort oC partnersliip for the voyage or adventure. If he be a mere stranger, and has, in * Hewitt V. Buck, 17 Maine, 147. o so THE LAW OF SHIPPING. the course of his employment as such, come to the possession of the proceeds of the voyage, or of the ship itself, if sold, or of the ship's documents and freight, he will be entitled to a lien thereon for his reimbursement and indemnity. This, however, as the law now stands, is the bound and limit of his lien.^ 389. But whether a part-owner, in his character as such, has any lien upon the shares of his co-owners for expenditures, advances, and debts, incurred on account of the ship, as for repairs, or for outfits for a voyage, or by discharging existing liens on the ship, is a question of a different nature from the one we have been considering, — a question, too, upon which great jurists have differed, both in England and this country, and with respect to which the weight of judicial authority is so nearly divided between the opposing scales, that neither can be said to prepon- derate. In England, the opinion of Lord Ilardwicke is opposed to the opinion of Lord Eldon, the latter, however, ruling the law in that country.^ In America, the doctrine held by Lord Eldon has the support of Chancellor Kent and Judge Hopkinson. 'Story on Partnership, § 433 ; 1 Bell's Com., pp. 503-505; Ex parte Young, 2 Vcs. & Beam. 242 ; Mumford v. Nicoll, 20 John. R. GU. ' Doddington v. Hallett, 1 Ves. 497; Overruled by Ex parte Young, 2 Ves. & Beam. 242. ' Mumford V. Nicoll, 4 John. Ch. R. 522; Patton v. The Ran- dolph, 1 Gilpin, 457, 460. Chancellor Kent, in Nicoll v. Mum- ford, supra, referring to Doddington v. Hallett, supra, said, ''I dare cot follow a case which has never had effect, and has been so authoritatively exploded." (See Ex parte Young, 2 Ves. & Beam. OF PART-OTTNERS. 381 But it was deliberately overthrown by the New York Court of Appeals/ and the opposite doctrine was fol- lowed by Chancellor De Saussure, in the case of Sea- brook V. Rose/ who considered the decisions of the American Courts, in analogous cases, as entirely sub- versive of the equity doctrine prevalent in England. 242; Ex parte Harrison, 2 Kose's Cases in Bankruptcy, 76; Ex parte Gibson, 1 Montagu on Partnership, 102, note; and Ex parte Parry, 5 Vcsey, 575.) ''The late cases whicli have been referred to, are in point against the allowance of any partnership claim, or taking an account on the foot of any partnership in the vessel." In Patton v. The Randolph, it was suggested by the counsel of the libellants, that a joint owner has a lien on the share of his co- owner of a vessel for a balance which may be due him. " Opinions," said Judge Ilopkinson, '^ have differed on this point, and it ap- pears to me that the better opinion is against this doctrine. I should be disposed to follow the opinion of Lord Eldon in the case of Young Ex parte (supra'), as Chancellor Kent did on this ques- tion in the case of JMumford v. Nicoll, although a majority of the Judges in the New York Court of Appeals seemed inclined to sup- port the opinion of Lord Ilardwicke, in the case of Doddington v. Hallett, which was in favor of the lien." Judge Ilopkinson was also of the opinion that the Admiralty had no jurisdiction to en- force such a lien, even upon the supposition that it existed. ' Mumford v. Nicoll, 20 John. II. Oil. • 2 Hill's Ch. II. 553. Upon appeal, the Court of Appeals did not deem it necessary to give an opinion upon the point discussed by Chancellor Dc Saussurc. " The question is not really," said Chancellor Johnston, in delivering the opinion of the Court, "as it has often been conceived to be, whether a ship may be the sub- ject of partnership; for no doubt any species of property wliatcvcr may be held in partncrHhip. But the question is, whether a ship, owned in distinct shares, and employed in trade, is, as between the owners, partnership property, or liable to be so regarded by credi- tors, beyond certain specified limits." See also Hewitt v. Sturdc- vant, 4 B. Monroe, 458-9 ; Lamb v. Duraut, 12 Mass. 64; 3 Kent, 38; 11 Mass. 400; 2 Mumford, 387. o 82 THE LAW OF SniPPING. 390. Whatever coiillict there may be in the cases with respect to the precise point in question, it seems to be generally admitted that there may be a special partnership in a ship, as well as in the cargo, in re- gard to a particular voyage or adventure. And hence, the repairs, outfits, and other expenses, in- curred to accomplish the enterprise, are deemed to be made on joint account, and intended to be go- verned, as to rights and liens, by the rules of strict partnerships.^ 391. The ordinary remedy for part-owners to ob- tain an adjustment of the ship's accounts among themselves is a suit in a Court of Equity. It was held by Lord Stowell that a copartner could not ori- ginate a suit for accounts in the Admiralty,^ and that the Admiralty would not hang jurisdiction on such accounts, " upon the peg of a stipulation," taken by a dissentient part-owner, as a remedy for the loss of the ship. I am not aware that the question has ever been decided in this country. But I apprehend, that our Courts of Admiralty, possessed as they are with general equity powers, would have ample jurisdiction, in a case of that nature. Indeed, Lord Stowell did not deny that the language of the connnission or pa- tent of the Judge of Admiralty, would countenance his taking jurisdiction to enforce an adjustment of accounts among part-owners. But in declining to exercise the jurisdiction, he relied upon the fact that it never had been exercised, and that the " active 1 3 Kent, 40, 155 ; Story on Partnership, § 444. See the cases in 4 Pick. 450, and 6 Pick. 46. « The Apollo, 1 Hagg. R. 306. OF PART-OWNERS. 383 jurisdiction of the Court stood in need of the support of continued exercise and usage." 392. When a contract is made with two or more jDcrsons, and one only sues, the defendant may have the advantage of it on the general issue, without pleading it ; a fortiori if it appears from the plain- tiff's own showing that the contract was made with himself and others not named, nor any legal reason assigned for not naming them ; because it appears that no such contract was made with the plaintiff as he has declared on. But the several part-owners of a ship make in law but one person. Hence, if an injury Ije done the common property, all the part- owners ought to join in an action to recover damages for that injury. And this to prevent the defendant from being harassed by a multiplicity of suits. As the rule is estabhshed for the benefit and ease of the wrongdoer, he may waive it by not pleading in abatement. 393. It is well settled that he cannot take advan- tage of the irregularity under the general issue. And if he does not avail himself of the advantage which the law gives him, by plea in abatement to the first suit, he is estopped from taking the excep- tion in a])atement, if afterwards another part-owner sues for his own interest. The distinction is this : in actions by part-owners arising ex contractu, if all the part-owners do not join, the defendant may avail himself of the objection by evidence at tlic trial, and without plea in abatement. But in actions arising o 84 THE LAW OF SHIPPING. cx delicto, the non-joinder must be pleaded in abate- ment at the very beginning of the cause.' I Hart V. Fitzgerald, 2 Mass. R. 511 ; Thompson v. Hoskins, 11 Mass. R. 419; Addison v. Overcnd, 6 T. R. 7G; Rice v. Shute, 5 Burr. 2G11; Bloxain v. Hubbard, 5 East, R. 407; Abbott on Shipping, 140. The distinction stated in the text be- tween actions for tort and on contract, Mr. Justice Story says, is not very easy to establish upon any general reasoning. " It seems, however," he observes, " to proceed upon this ground, that, in cases of tort, the tort is treated as joint and several; whereas, in cases of contract, the contract is treated as an entirety, and as being incapable of separation as to the plaintiffs. And yet a dif- ferent rule prevails, even in cases of contract, as to the parties who are defendants in the suit; for, in the latter cases, the objec- tion of the non-joinder of all the proper contracting parties to the contract as defendants can be taken advantage of (as in the case of torts) by a plea in abatement only, and not upon the trial of the merits." Story on Partnership, s. 454. See also Robinson v. Gush- ing, 2 Fairf. 480, where it was held, that one of two or more joint owners of a vessel cannot maintain an action in his name alone for freight, though he be also master. Converse v. Symes, 10 Mass. 377 ; Barn v. Morris, 3 Caines' R. 54 ; Jordan v. Wilkins, 2 Wash. C. C. R. 482. " The necessity," says Lord Tenterden, *'of all the part-owners joining as plaintiffs in actions for the freight of goods conveyed in a general ship, is founded upon the consideration that all of them are partners with respect to the concerns of the ship; and upon this consideration Lord Chancellor Eldon, in a case of bankruptcy, wherein it appeared that the owners of a ship, upon a settlement of accounts with the master, who had become a bankrupt, were indebted to him, and that, on the other hand, he also was indebted to some of them severally upon sepa- rate and distinct concerns, refused to allow the latter to set off their respective demands against the claim of his assignees for their shares of the general debt. And although the share of each part-owner be his separate property, yet, when A., B., and C., were owners of a vessel, and B. and C. employed D. to sell it for them, which he did, and paid over their proportion of the purchase-money to B. and C, but refused to pay A. his proportion of the proceeds OF PART-OWNERS. 385 394. In an action ex contractu against part-owners, the non-joinder of one or more must be pleaded by the part-owners sued in abatement. If they neglect to plead in abatement that others ought to be im- pleaded, this is a waiver of their right; and they cannot afterwards avail themselves of this variance, either on the general issue or in arrest of judgment, if the fact becomes apparent upon the record. Their remedy is against the other part-owners, for contri- bution.' If, however, persons are joined in the action who ne\er contracted, or were not bound by the contract made with others, this goes to the foun- dation of the suit, and is fatal to it upon the merits, for it is a variance in substance.^ 395. In actions against partrowners ex delicto, as the party injured has his election to sue all or any of them, and upon the ground that tort is, in its nature, a separate act of each individual, it follows of the sale of the vessel, and A. alone sued him for the amount, it was held he could not recover. For here was a joint contract; and persons having separate interests in a ship may jointly agree to authorize another to sell the entirety for them. But if several part-owners allow one of their number to deal with their joint pro- perty as his own, and he lend the i)rocceds of it, and receive credit for them in account in his own name, although the property was joint, his contract with the borrower may have been separate; and they must show that it was not so, if they would sue upon it." Abbott on .Shipping, 110. » Converse v. Symmcs, 10 ."Mass. 11. 377; Robertson v. Smith, 18 John. II. a:)'.)) Dorcmus v. Sclden, 19 John. U. l!l;5; Zicle v. Executor.s of ('an)pbell, *2 John. Cas. v]82. « Livingston's K.v'rs v. Trcmpcr, 11 John. K. 101 ; Jones v. Wilkins, 2 Wash. C. C. K. 482; Tone v. Goodrich, 2 John. R. 213. 25 386 THE LAW OF SHIPPING. that the part-owner sued cannot plead the non-joinder of the otliers in abatement or in bar.' The doctrine is well established in this country ; but in England it has been much questioned, and the decisions are conllicting.^ 39G. "Part-owners of ships," says Mr. Justice Story, " are, without question, all responsible at the common law, severally, as well as jointly, in solido, for all torts personally committed or authorized by them, or occasioned to third persons by the negli- gence of one or more, or all, of them, or by that of the master of the ship, or ship's husband, or other agent thereof; but not for the wilful or malicious acts of the latter. The reason for this distinction between negligent and wilful or malicious acts is, that neither the master nor ship's husband, nor other agent, in doing such wilful or malicious acts, can properly be deemed to be acting within the scope of the authority confided to him by the owners, in the management of the ship or its concerns ; but cases of negligence may, and ordinarily do, arise in the very course of such management. The doctrine is clearly illustrated in the common case of a coUision, or run- ning down of ships on the high seas, or in port, whereby damage or loss is incurred. If the tort be by the wilful or malicious act or design of the master, or any other officer or agent of the ship, the owners 1 Low V. Mumford, 14 John. R. 420; PaUeu v. Gurney, 17 Mass. R. 182. 2 Govett V. Radnidge, 3 East, 52 ; Powell v. Sayton, 2 New Rep. 3G5 ; Max v. Roberts, 2 New Rep. 450 ; Same v. Same, ia Error, 12 East, 89 ; Weal v. King, 12 East, R. 452. OF PART-OWNERS. 387 are not liable therefor, but the party only who com- mits the tort. But if it be by the negligence of the master, or any other officer or agent, then the owners are liable therefor in solido, jointly and severally. On the other hand, if a tort be committed by one part-owner of a ship, who is not employed by the others about the concerns of the ship, or authorized to act for them, but he is acting solely, suo jure, as part-owner, the other part-owners will not ordinarily be liable therefor, whether the act be wilful or mali- cious, or merely negligent, for the very reason that he is not intrusted by them with the management or concerns of the ship. "1 397. A tradesman who has repaired a ship, and taken from some of the part-owners sums equivalent to their shares, has nevertheless a claim upon them for the residue, for which they remain responsible, if not paid by the others, unless at the time of the payment the tradesman specially agreed to discharge them from all further demand, upon some good con- sideration inducing him to do so.^ We have else- where seen^ that, if the credit, at the time the repairs or supplies were ordered, was given to the ship's hus- * Story on Partnership, s. 458. « Abbott on Shipping, p. 149. 'Ante, p. 380; Reed v. White, 5 Esp. 122. This was an action for cordage sold, against the defendant, as owner of the ship Princess Mary. Tlio dcfcmhint, Wliite, was the niaiiai^ing owner or ship's liushand. The i>hiinti(r took White's bill for the amount, which was dishonored, and renewed, and again dishonored. For the other defendants, it was insisted that the plaintiff liad Ring V. Franklin, 1 Hall's (N. Y.) R. 1 ; Tucker v. Buffing- ton, supra; Weston v. Penniman, 1 Mason, 318. In King v. Franklin, the action was brought against the defendant for work and labor, and materials found, &c., in repairing the ship Concor- dia, when she stood in the name of the defendant as ostensible owner, and the defence was, that the defendant was mortgagee out of possession, and therefore not answerable to the plaintifT for the repairs done by him. The plaintiif, to establish the ownership of the defendant, produced and proved the custom-house register of the ship, with the affirmation of the defendant, that he was sole owner, by which document so produced, it appeared that a new register had been issued for her on the 15th of October, 1824, her previous register, issued on the 27th of August next preceding, being then surrendered, in consequence of a change of property. The new register was issued at the request of the defendant, and upon his affirmation that he was the sole owner of the ship, and she was thereby registered in the usual form, as the sole property of the defendant. The affirmation of the defendant, when he ap- plied for and obtained the register, was also produced, by which it appeared that he, on the same 15th of October, 1824, affirmed, in the usual form, that he then was the true and only owner of the ship, and that there was no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested therein, or in the profits or issues thereof. And it was proved that no change had taken place in the registry, intermediate the date and issuing of the same and the time the work was done. The defendant, on the other hand, read in evi- dence a bill of sale of the ship from N. G. Minturn to him, bearing date the same 15th of October, 1824, and being on the face of it an absolute transfer of the ship to him. He then called Minturn, the apparent vendor, to prove that the bill of sale, though absolute in its terms, was given to him, the defendant, and taken by him as collateral security for a loan of six thousand dollars made by Franklin & Minturn to N. G. Minturn, the owner of the ship. OF THE LIABILITY OF MORTGAGEES, ETC. 397 410. The principle which governs the decisions is, that the quaUfied ownership created by a mortgagee, or a defeasible bill of sale, is not the cause or induce- ment of the credit which is given by material-men or others, nor will the law permit such qualified ownership to be a ground of liability. The creditor, if he trusts to it, must not look to the law for relief. The party must take possession, or hold himself out as the absolute owner, or he is not chargeable.' 411. " The owner, who is responsible, is the person The witness, upon his voir dire, declaring that he had no interest in the event of the suit, was admitted to testify, and proved the facts here stated. The absolute bill of sale was executed on the 15th of October, 1824, and the defendant afterwards, on the 29th of March following, to manifest the trust, gave a written acknow- ledgment as evidence of the contract. It was held, tliat the defendant, under these circumstances, was not liable for repairs and supplies. See also Birkbcck v. Tucker, 2 Hill. 121. In the latter case, it was said by the Court, that " the law was well settled, that wherever there is a loan and a se- curity furnished for that loan, the fact may be shown by parol proof, even though the instrument forming the security be abso- lute in its terms and upon its face. It becomes a question of in- tention entirely, and if the parties intended that the apparently absolute deed should in truth be but conditional, tlien that fact may be shown in any form of proof which can establish it. It is not necessary that the defeasance should be in writing; but the real object of the parties in furniiiig tlu; instrument may be proved by parol. The effect of the instrument is not conBncd to the im- mediate particrs, at all event.s, if third persons arc not prejudiced thereby. In this case, there is no pretence that credit wa.s given to thi.s ship, in con.sccjueuec of the interest which was vested in Ilowland. His part-ownership in nowise prejudiced the plaintiff, and Ilowland cannot be made liable from this cause." 'Duff v. Bayard, 4 W. & S. 240. 398 THE LAAV OF SHIPPING. ■who, having some kind of claim or title, has the con- trol anil management of the vessel, and has the right to receive her freight and earnings. And the ground of this liability seems to be the common maxim, qui sentit commodum sentlre debet et onus: it being ob- viously right and just that he who enjoys the bene- fits of the vessel, and controls her operations, who receives her gains or has the chance of so doing, ought to pay debts incurred for the fitting out, sup- pl}', and navigation of the vessel, which is to produce for him those earnings, and not a person who merely holds a right in her without the profit or usufruct." 412. The Admiralty in England, upon questions of mortgage, has declined to entertain jurisdiction.^ The question has not been raised in this country in such a direct form that it required to be determined. No reported case contains any decision upon the point. In the case of Leland v. The Ship Medora,^ Judge Woodbury observed, that his impression was against the right of the Admiralty to take jurisdic- tion of such cases. By the Act of 3 & 4 Victoria,^ the Courts of Admiralty in England may now decide on the rights of mortgagees to ships, if they are under arrest, or their proceeds are in Admiralty. In the latter case, I presume there could be no objection to ' The Neptune, 3 Hagg. Ad. E. 132 ; The Dowthorpe, 2 W. Rob. 80 ; The Highlander, Ibid. 109; 2 Brown. Civ. & Adm. Law. 95; Atkinson v. Maling, 2 D. & E. 462; 3 Hagg. 402. ^ 2 Wood. & M. 92. " Ch. 05, s. 3. OF THE LIABILITY OF MORTGAGEES, ETC. 399 our Courts assuming jurisdiction, in the absence of any special authority/ * See Gardner v. The New Jersey, 1 Pet. Adm. 227. By the Act of July 29, 1850, it is provided, "That no bill of sale, mort- gage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the col- lector of the customs, when such vessel is registered or enrolled. The lien by bottomry, however, created during the voyage of the vessel by a loan of money, or materials necessary to repair or en- able such vessel to prosecute a voyage, does not lose its priority, nor is in any way affected by this act." Sec. 1. 400 CHAPTER III. OF PILOTS. 413. A PILOT is a person taken on board at a particu- lar place, for the purpose of conducting a ship through a river, road, or channel, or from or into a port.' His duty, therefore, is properly the duty to navigate the ship over and through his pilotage limits, or as it is commonly called, his pilotage ground. The ship must be capable, in point of crew, equipments, and situation, of being navigated. No pilot is bound to go on board a vessel in distress to render pilot- service for mere pilotage reward. If a pilot, being told he would receive pilotage only, refused to take charge of a vessel in that condition, he would be sub- jected to no censure, and if he did take charge of her, he would be entitled to a salvage remuneration.^ " Pilotage," said Dr. Lushington, in the case of The Elizabeth,^ "is confined to conducting into port a ' Abbott on Shipping, 2G5 ; Hobart v. Drogan, 10 Peters' R. 108. = The Frederick, 1 W. Rob. R. 17 ; The Elizabeth, 8 Jurist, 305 ; The Cumberland, 9 Jurist, 191 ; The Star, 14 Law Rep. 487 ; Flanders' Maritime Law, 330. 3 8 Jurist, 305. If, when a pilot goes on board a vessel to bring her into port, not in a state of distress, but afterwards a wind arises, and she is in danger of being cast upon the shore, it is the duty of the pilot to exert his utmost labor and skill to pre- OF PILOTS. 401 vessel in no state of alarm, or having no apprehen- sion of distress arising from antecedent causes." 414. The office of a pilot is not a public one, unless expressly so constituted. Ordinarily, it is considered as a mere private profession, trade, or calling, which may be, and is in most instances, subjected to cer- tain regulations and restraints, by the interposition of legislative authoritj^ When the law provides for the appointment and license of pilots, they ac- quire a right in their pursuit, which becomes a species of property, subject, of course, to all the re- strictions imposed by the law, and liable to be for- feited for any of the reasons specified by the law.^ 415. The first Congress that assembled under the Constitution, found existing in several of the States, a system of laws for the regulation of pilots and pilotages. Tlie Constitution has conferred on Con- gress the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." It is admitted that the power to regulate commerce includes the regulation of naviga- scrvc her; and for so doing, he cannot set up a claim for compen- eation as a salvor. That which a pilot docs in the ordinary course of his duty, can never be made the foundation of a claim for sal- vage; and the difficulty and exertion being more or less in such a ca.sc, can make no difTi-rciico. lie takes his chance for such hazards, lie knows he must be exposed to them ; and it must be presumed that his official compensation is calculated on the proba- bility of such exposures. He cannot be at the same time, and in the same act, a pilot and a salvor. Wlicn he goes beyond his offi- cial duty, he becomes a salvor. The Elvira, Gilpin's II. 05. ' Low v. Com. of Pilotage, R. M., Charlton's (Ga.) II. 310. 20 402 THE LAW OF SHIPPING. tion. The regulation of navigation means the esta- blishment of rules b}^ which it must be carried on. The power extends to the persons who conduct it, as well as to the instruments used/ The Congress of 1789, instead of proceeding under the constitu- tional grant to enact a general system respecting pilots and pilotages, simply adopted the laws of the several States, then existing. They became by that adoption, to every purpose, laws of Congress. But the Act of 1789,^ not only adopted the laws of the States found existing at the organization of the government, but it went further. It declared, " That all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regu- * Cooley V. Board of Wardens of the Port of Philadelpliia, 12 How. R. 299. " A pilot," say the Court, " so far as respects the navigation of the vessel in that part of the voyage which is his pilotage ground, is the temporary master charged with the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew. He is not only one of the persons engaged in navigation, but he occupies a most impor- tant and responsible place among those engaged. And if Congress has power to regulate the seamen who assist the pilot in the management of the Tcssel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power. It is true that, according to the usages of modern commerce on the ocean, the pilot is on board only during a part of the voyage between ports of different States, or between ports of the United States and foreign countries ; but if he is on board for such a purpose, and during so much of the voyage as to be en- gaged in navigation, the power to regulate navigation extends to him while thus engaged, as clearly as it would if he were to re- main on board throughout the whole passage, from port to port. For it is a power which extends to every part of the voyage as much as in another part, or during the whole voyage." 2 Act of 7th Aug., 1789, sec. 4. OF PILOTS. 40 o latecl in conformity with the existing laws of the States, respective!}', wherein such pilots may be, or with such laws as the States may respecthely hereafter enact for the purpose, until further legislative provi- sion shall be made hy Congress." 416. No " further legislative provision," has been made by Congress, and the question has arisen, whether the legislation of the several States, upon the subject of pilotage, since the Act of 1789, and prospectively adopted by it, is constitutional. Or, in other words, whether the power to regulate com- merce delegated to Congress by the Constitution, is an exclusive power. It is admitted, that if the power exclusively belongs to Congress, then Congress cannot authorize the several States to exercise it. If the States do exercise it, their legislation is simply a nullity, — that is, upon the supposition that the power resides exclusively in Congress. All Acts under that legislation are void Acts. They bind no one. Congress may, however, adopt that legislation, and from that moment it possesses vitality. But the adoption of Congress does not impart vigor to it, and render valid Acts under it, anterior to the adop- tion. It does not relate back, and make valid that legislation ah initio. It may be added, that when the legislation of the States is adopted, it becomes the legislation of (Jongress, mid the States thereafter have no more right or autliority to modify or amend the adopted laws, than they have to amend or mo- dify any other Acts of Congress, 417. The question now arises, whether Congress 404 THE LAW OF SHIPPING. can 'pra'ipcctivehj adopt the laws which the several States may hereafter enact upon the subject of com- merce or any of its incidents. If so, this strange result follows, — that Congress may invite the States to legislate upon a subject exclusively within its own power (we are now assuming this to be so), with the previous guarantee that its legislation shall be sanctioned by Congress, — thus doing what the Supreme Court of the United States, in the case of Gibbons v. Ogden,' declared that Congress could not do, namely, authorize or enable a State to legislate. If this is so, it follows that all the laws of the several States, passed since the Act of 1789, are void, unless the States possess a concurrent power over the sub- ject of commerce, or the laws are in their nature police regulations, which, it is admitted, the States have a necessary and legitimate power to enact. 418. The latter branch of the alternative does not fall within the scope of our inquiry. The former meets us at the threshold. The question is a simple one. Have the States concurrent power with Con- gress over commerce and its incidents? If they have, then the laws of the States with respect to pilots and pilotages are valid.^ " The grant of com- » 9 Wheat. R. 218. 2 In 1803, Pennsylvania passed an Act " to establish a Board of Wardens for the port of Philadelphia, and for the regulation of pilots and pilotages," &c. One section of the Act provides " That every ship or vessel arriving from or bound to any foreign port or place, and every ship or vessel of the burden of twenty-five tons, or more, sailing from or bound to any port not within the river Delaware, shall be obliged to receive a pilot. And it shall be the duty of the master of every such ship or vessel, within thirty-six OF PILOTS. 405 mercial power to Congress," says Mr. Justice Curtis, in the case of Cooley v. Board of Wardens, &c., " does not contain any terms which expressly ex- clude the States from exercising an authority over its subject-matter. If they are excluded, it must be because the nature of the power thus granted to hours next after the arrival of such ship or vessel at the city of Philadelphia, to make report to the master-warden of the name of such ship or vessel, her draught of water, and the name of the pilot who shall have conducted her to the port. And when any- such vessel shall be outward bound, the master of such vessel shall make known to the wardens the name of such vessel, and of the pilot who is to conduct her to the Capes, and her draught of water at that time. And it shall be the duty of the wardens to enter every such vessel in a book to be by them kept for that pur- pose, without fee or reward. And if the master of any ship or vessel shall neglect to make such report, he shall forfeit and pay the sum of sixty dollars. And if the master of any such ship or vessel shall refuse or neglect to take a pilot, the master, owner, or consignee of such vessel shall forfeit and pay to the warden afore- said a sum equal to the half-pilotage of such ship or vessel, to the use of the Society for the llelief, &c., to be recovered as pilotage in the manner hereinafter directed : Provided always, that when it shall appear to the warden that, in case of an inward-bound vessel, a pilot did not offer before she had reached lleedy Island, or, in case of an outward-bound vessel, that a pilot could not be obtained for twenty-four hours after such vessel was ready to depart, the penalty aforesaid for not having a pilot, shall not be incurred." In affirming the validity of this Act, the Supreme Court of the United States (Justices M'Lcan and Wayne dissent- ing), in the ca.se of Cooley v. Board of Wardens, &c., 12 liuw. II. 290, said : " We arc of opinion that this State law was enacted by virtue of a power residing in the State to legislate; that it is not in conflict with any law of Congress; that it docs not interfere with any system which Congress has established, by making regu- lations, or by intentionally leaving individuals to their own uiin;- stricted action." 406 THE LAW OF SHIPPING. Congress roquircs that a similar authority should not exist in the States." 419. When a power is expressly granted to Con- gress, the presumption is, that it was deemed neces- sary that it should exclusively reside in Congress. The Constitution does not declare that if time and experience demonstrate that the " nature" of any of the granted powers is such that they may be exer- cised by the States, then the States are at liberty to exercise them. The Constitution cannot intend, when it confers on Congress the power " to regulate commerce," to enable the States to exercise it when- ever Congress does not. It is admitted that, when Congress exercises the power, the States cannot. It then becomes exclusive. But when Congress " sleeps upon its post," the States may seize its armor, and exercise its authority. The laws which the States enact during the somnolency of Congress, the Supreme Court says, are valid. They certainly are, if enacted within the admitted sovereignty of the States, and must continue so, notwithstanding they may conflict with any subsequent legislation of Congress. 'O' 420. " Can Congress," asks Mr. Justice M'Lean, in his dissenting opinion, " annul the acts of a State passed within its admitted sovereignty ? No one, I suppose, could sustain such a proposition. State sovereignty can neither be enlarged nor diminished by an Act of Congress. It is not known' that Con- gress has ever claimed such a power." Yet the majority of the Court, in the case of Cooley v. OF PILOTS. 407 Board of Wardens, &c., assumed that the State Laws might at any moment be overruled by the action of Congress. We shall pursue the argument no farther. The question, by the judgment of the Supreme Court, is settled. And it now must be understood that the laws of the several States, for the regulation of pilots, " are enacted by virtue of a power residing in the States to legislate," and are valid until Congress interposes, and establishes some other system of regulations. 421. The Admiralty has jurisdiction, as well in personam as in rem, for pilotage services. They properly arise under a maritime contract, and differ in no substantial respect from the contract for mari- ners' wages.' And since the Act of 1845, extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same, it is not necessary, in order to give the Admi- ralty jurisdiction, that the pilotage should be due for services performed on, from, or to the sea. 422. That Act declares tliat the District Courts shall have, possess, and exercise, the same jurisdic- tion in iiijitters of contract and tort, arising in or upon or concerning steamboats and other vessels of twent}' tons Ijurden and upwards, enrolled and licensed for tlie coasting trade, and at the time emi)loyed in business of commerce and navigation between ports and places in dillerent States and territories, aa was at the time of the passage of the ' The Anne, 1 Mason's 11. 508; llobart v. Drogan, 10 Peters' K. 108. 408 THE LAW OF SIIIITING. law possessed and exercised by the District Courts in cases of like steamboats and other vessels em- ployed in navigation and commerce on the high seas, or tide-waters within the Admiralty and mari- time jurisdiction of the United States. We have elsewhere seen that the Supreme Court of the United States has affirmed the constitutionality of this enact- ment.^ 423. Although by the Pennsylvania Act of 24th February, 1820, the penalties denounced by the Act of 29th March, 1803, that is, the half-pilotage fees, are put upon the same footing as the claims of mate- rial-men, against domestic ships, in regard to which United States Courts have always felt themselves authorized to take jurisdiction, yet Judge Kane, in the case of The Creole,' said he had not sanctioned the use of Admiralty process to collect them. He said that Courts of Admiralty, like Courts of Equity, refused their aid to the enforcement of penalties, even such as are imposed by law for a breach of con- tract strictly within their cognizance. He intimated, however, that he might hereafter recognise the half- pilotage lien created by the Pennsylvania Pilot Act, as one to be enforced by Admiralty process, but he did not deem it necessary to consider the question in the case before him. 424. To relieve the commerce of the country from any embarrassment, arising from the laws of diffe- ' The Propeller Genesee Chief v. Fitzbugh, 12 Howard's R. 443. * Leg. Intell., May 7th, 1852. OF PILOTS. 409 rent States, situate upon waters which are the boundary between them, Congress has provided that it shall and may be lawful for the master or com- mander of any vessel coming into or going out of any port, situate upon waters which are the boundary between two States, to employ any pilot duly li- censed or authorized by the laws of either of the States bounded on the said waters, to pilot said ves- sel to or from said port, any law, usage, or custom to the contrary, notwithstanding.^ 425. By the laws of most maritime States, masters of vessels are compelled to take pilots on board.^ While on board, the pilot is considered as master, pro hac vice. He has absolute and exclusive control of the shi}). If the master is bound by any law to take a pilot on board, he, as well as the owners, are ex- empt from liability for any damage arising from the neglect, defliult, or incompetency of the pilot.^ This » Act of March 2, 1837. 2 Vide, Laws of Oleron, Art. 23 ; Molloy, B. 2, ch. 9, § 8 and §7. ' The Protector, 1 W. Rob. Ad. 11. 45; TLo Christiana, 2 Hagg. Ad. R. 183 ; The Loclilibo, 1 Eng. Law & Eq. Rep. G51 ; Carruthers V. Sydehotliain, 4 Maul. & Sclw. 77; SncU v. Rich, 1 John.s. R. 305; Mackintosh v. Slado, G Barn. & Cressw. 657; Opinion of Judge Kane in the case of The Creole, The Legal Intelligencer of May 7, 1852; The Marin, 1 ^V. Rob. R. 95. But see contra, Busscy V. Donaldson, 4 J)all. K. 20(5; Yates v. Brown, 8 Pick. 23; The Transit, cited in the case of The Protector, 1 W. R. 45; The Neptune, 1 Dod. R. 107. The ground upon which the Court pro- ceeded in YatcH V. Hrown, was, that the pilot is the agent of the owners, and therefore the owners arc equally liable for his acts, within the scope of his employment, as for the acta of the master done within the scope of his enjployment. 410 THE LAW OF SHIPPING. rule is fonndcd upon considerations of obvious jus- tice. When the appointment rests with the owner himself, as in the case of the master and crew, it is reasonable that he should be held responsible for their acts, who are agents selected by himself; and he is bound to provide persons of adequate skill, dili- gence, and sobriety. 42G. But when a person is compulsorily put on board the vessel, and the owner's authority is super- seded by legislative enactment, it would be a viola- tion of all justice to hold such owner responsible for the skill, sobriety, and caution of an individual with respect to whom he has no power of selection ; whose (qualifications he has no opportunity of deciding upon, but which are to be ascertained and deter- mined by others : the owner himself being entirely debarred from any possibility of interference.^ 1 The Protector, 1 W. Eob. Ad. R. 45 ; Dr. Lushington ; The Maria, Ibid. 95. It should be here observed, that while the rea- soning of Dr. Lushington in both of these cases, and in the subse- quent case of The AgricoUi, 2 W. Rob. R. 10, proceeds upon the general principle that no man should be held responsible for the acts of an agent, who was forced upon him by the provisions of law, it must, at the same time, be understood, that owners and masters are specially exempted from liability by the Act of Par- liament of G Geo. IV., c. 125, s. 55. However, " I am of opinion," said Dr. Lushington, in the case of The Maria, " that indepen- dently of the express provisions in those statutes, the compulsory taking of a pilot does, upon general principles, relieve the owner from all responsibility for his acts. The principle is one that is recognised by common sense and justice all over the world." This is the pro- vision of G Geo. IV., " And be it further enacted, that no owner or master of any ship or vessel shall be answerable for any loss or damage which shall happen to any person or persons whomsoever, OF PILOTS. 411 427. In the case of The Girolamo/ the accident did not arise from any act of bad steerage, want of knowledge of shoals, or any incapacity of the pilot, but from the vessel going on in a fog. The question was raised whether the master was not in pari de- licto, from not having interposed, and brought the vessel up. " It seems to be nearly admitted," said Sir John Nicholl, " that if the vessel had set off in this fog, blame would have been imputable to the master ; if so, was he not blaraable for going on in the fog ? Had he not a right to resume his autho- rity ? Did he not owe it to his owners and other persons, whose property might be damaged by a col- lision, to insist on bringing the vessel up ? If he was in as much haste to get out of port as the pilot was to finish his job, are they not in imri delicto? Was not the master in duty bound, at least, to re- monstrate with the pilot, and to represent the dan- ger of proceeding ? Yet he says in his alhdavit, he did not in the least interfere. In this respect, the case is, as far as I am aware, new, and one of too much dilllculty to arrive at any hasty decision upon, unless there be no other points upon which the case may be disposed of." 428. The point thus left undecided by Sir John Nicholl, ultliuiigli it is evident that the leaning and from or by reason or moans of :iiiy neglect, default, incompetency, or incapacity of any licensed pilot, acting in the charge of any such ship or vessel, under or in pursuance of any of the pmvisions ot this Act, where nnd no lourj as such pilot shall hr dull/ qunlljird to have the rhart/c of such ship or vessel, or where and so long as no duly qualified pilot shall hare offered to take charge thcreoj. » '6 Ilagg. Ad. K. 1G9. 412 THE LAW OF SniPPING. bearins^ of his mind was that the master would be responsible, for not having interfered under the cir- cumstances, has recently been adjudicated by Dr. Lushiniiton. in the case of the Lochlibo/ In that case, it was held, that when a pilot is taken on board, it is his duty, and not that of the master, to determine where, and whether or not, the ship shall be brought up. Referring to the case of The Giro- lamo, Dr. Lushington proceeded to say : 429. "1 am bound to tell you what is my own opinion. I am bound to tell you, looking at this case, whatever might be the decision in the one already referred to, I am of opinion, that where a pilot is taken on board at Dungeness, for the pur- pose of navigating a vessel to Margate or Gravesend, or wherever it may be within his pilot grounds, it does appear to me that all the responsibility attaches on the pilot under all the circumstances ; it is not part of the duty of the master to interfere or deter- mine whether the vessel ought to be brought up at the North Foreland, or in the Downs, or in Margate Roads ; but that is clearly a part of the vocation of » 1 Eng. Law & Eq. R. G51. See also The Maria, 1 W. Rob. 110; The Duke of Manchester, 10 Jurist, 865. It was held in this case to be the duty of the master to look after the pilot where there was palpable incompetency, or intoxication, or a loss of his faculties ; and scmbh, if the master sec that the pilot is incompe- tent, he is not blindly to follow his orders. In the case of U. S. V. Forbes, Crabbe's R. 558, it was held, that the pilot is an officer of the ship when on board in the exercise of his duties, but the captain is still master of the vessel, and the pilot's orders are con- sidered as the captain's. See also, to the same effect, U. S. v. Lynch, 2 N. Y. Leg. Obs. 51. OF PILOTS. 413 the pilot, and I cannot consider that in this case the master was to blame. Even suppose you should consider the pilot was to blame for not having brought up the vessel, it appears to me it would be a most dangerous doctrine, considering the duty im- posed upon pilots, and the local knowledge they are supposed to possess, if I was to sanction the hiter- ference of the master, in any way, in the performance of a duty, which duty they ought to be competent to discharge, and with respect to which the master, in the majority of cases, must be a very inferior judge to the pilot. Of course I do not mean to go the extraordinary length of sa3-ing, that, if it was quite manifest that the pilot was utterly incapable, it would not be the duty of the master to interpose for the preservation of life and the property under his care; for I will ever bold the doctrine that it would be his duty in the extreme case." 430. Interference, as distinguished from sugges- tion, is the doing that which the pilot alone ought to have done.^ A hail from any of the crew on the look-out to alter the helm, if such advice be adopted by the pilot as a proper measure in his own judg- ment, will exonerate the owners ; but it would be otherwise if tlie advice were adopted by the pilot untliinkingly, and on the mere report of the look- out.' 431. Wlif-n a vessel is at sea, and a pilot puts off, tlion- is, midcr the provisions of tlic Pilot Acts, a compulsion upon the master to receive sucli pilot, * 1 Eng. Law & Eq. R. 651. " H'i^l. 414: THE LAW OF SHIPPING. if he be the first that presents himself. But when vessels are lying in port and about to sail, the mas- ters and owners have the right to select their own pilot, provided he be duly qualified to conduct the vessel. And although he may be under a permanent engagement to conduct certain vessels out of port, the owners are not responsible for accidents occur- ring while the vessel is under his charge. It has been contended that they are justly liable in such a case, because the pilot is to be considered rather as a servant, voluntarily engaged by the owners, than as an ordinary pilot taken under the compulsory provisions of the statute. 432. But a contrary view of the subject is taken by the Courts. There is nothing in the Pilot Acts, no restrictive enactment to prevent any individual duly qualified from accepting or undertaking a con- stant and permanent engagement. And it is con- sidered highly advantageous, not only to the owners of vessels, but to the public at large, that the same pilot should be constantly employed on board a ves- sel, inasmuch as he becomes thereby well acquainted with the master and crew, and is consequently more likely to conduct the vessel amicably and properly.^ 433. It should be observed, that when the pilot has assumed the charge of the ship, the exclusive command is his, and the exclusive duty to decide upon the proper time, place, and manner in which the anchor should be dropped.^ " If the pilot, then, is ' The Batavia, 2 W. Rob. Ad. R. 407. 2 The Agricola, 2 W. Rob. Ad. R. 10 ; The Gipsey King, Ibid. 547. OF PILOTS. 415 to decide the mode of anchoring a vessel, it seems to follow as a necessary consequence," said Dr. Lushing- ton, in the case of The Gipsy King,^ "that the pilot is responsible to see that the anchor is in a proper situation to be dropped when necessary. The crew are under his superintendence and direction, and bound to execute his orders." This is true, but the reasoning is not altogether satisfactory. The posi- tion is a sound one, that the mode, the time, and the place of bringing a vessel to an anchor, is within the peculiar province of the pilot who is in charge. 434. But is it not the duty of the master to have the anchor in a proper situation, so that the order of the pilot to drop it, may be at once executed? The vessel must be properly equipped, or rather, be suffi- cient in point of equipments to be conducted over the pilotage grounds. But suppose there is no anchor on board, and a collision arises from its absence. Clearly, the pilot is not responsible in such a case. Now, on the other hand, suppose that the anchor is in such a situation that it cannot be used. Can it be said that the vessel is sufficient in point of equip- ments, while the anchor is in that predicament? 43'j. Tlic question sini})ly is, whether it is the duty of tlie master and crew to have the means of conducting tlie vessel into port, and anclioring her, in a suitable condition to lu' employed under the direc- tion of the ])ilot, oi' wlietlier tluit duty devolves upon the l;itt<')". It seems to us, that justice and common sense agree upon this point, and should pre- • 2 W. llob. Ad. R. 547. 416 THE LAW OF SHIPPING. scribe the rule of law. We think that it is mani- festly the duty of the master to see that the anchor is in a proper condition to be used, and that the pilot is exonerated from any liability for damages that may ensue, from its not being in a proper condi- tion to be dropped when necessary. 436. A vessel in charge of a licensed pilot, whilst in tow of a steam tug, is, under ordinary circum- stances, to be considered as navigated by the pilot in charge. If the course pursued by the steam tug is in conformity with his directions, and a collision takes place, the pilot is responsible, and not the owners of the vessel or of the steam tug. If, how- ever, the steamer disregarded the directions of the pilot, and the collision was occasioned by her mis- conduct, the owner of the ship, in that case, would be responsible, as for the acts of their servant ; and they must seek their redress against the owners of the steam tug.' It should be added, as a proper qualification of the general doctrine, that although the course pursued by the steam tug is in confor- mity with the directions of the pilot, he will be exonerated from liability, if it can be made to ap- pear that he acted with good faith and with his best judgment, that he betrayed neither carelessness nor ignorance, but simply misjudged or miscalculated in circumstances where the most prudent man might have erred. It is not uncommon for the best and wisest designs to miscarry." I The Gipsy King, 2 W. Rob. Ad. R. 537, 542. " The Constitution, Gilpin's R. 579. OP PILOTS. 417 437. The owner being discharged from liability for any mischief or damage occurring from the neglect, default, or incapacity of a qualified pilot, in charge of a vessel, it would seem necessarily to follow, that the ship itself is discharged. It seems a contradic- tion in terms to say that the owner cannot be held answerable for the acts of an agent of the law, but the owner's property may be. Yet that was the principle declared by Sir John Nichol, in the case of The Girolamo.^ The Girolamo was a foreign vessel, which left the London Docks with a licensed pilot on board, towed by a steamer. After she had passed Blackwell, a fog came on, during which she ran foul of the Edward, a British convict vessel, moored a little below Woolwich, in the proper berth for such vessels. The Girolamo was arrested, and gave bail in £200. 438. Sir John Nichol said it could not be doubted that, before the passage of the Acts of Parliament,^ upon which the respondents relied, exonerating masters and owners when a licensed pilot is in charge of the vessel, the remedy in rem existed in the Court of Admiralty, and the legislature had not in express terms taken it away. And he sustained the proceeding in rem against the vessel. 431). The same ({uestion came buibre Judge Kane, in the case of The Creole,^ and was decided upon a • 3 Hogg. Ad. II. 109. « G Geo. 4, c. 125 ; 1 and 2 Geo. 4, c. 75, s. 32. 3 Legal Intelligencer of May 7, '52, Eastern Difltrict of Penn- sylvania. Since the text was written, we have understood that 418 THE LAVr OF SllimNG. principle more in conformity with Law iind common sense. " There can be no Uability," said his Honor, " for collision, where there has been no wrong : the foundation of the demand against the owner in per- sonam, or the vessel in rem, is that he, or his repre- sentative, had the power to prevent the wrong. The master is the owner's representative ; for the owner selects him, and substitutes him for himself, or does Avithout him, if he pleases, and takes the command in person. Qui facit ^)er al'ium, &c., ex- plains this liability very perfectly. But it never has been held, that the ship-owner should answer for the conduct of a prize-master, or the piracies of a revolted crew ; — nay, not even for their contracts, though made for the benefit of the ship ;^ and for the simple reason that there is no such thing as a representative in invitum, and no such thing as lia- bility for the acts of a stranger. The pilot, if it is the law that places him in charge of the vessel, is as little the owner's representative as the marshal is, who holds her in possession under a writ of attach- ment For the present case it is enough to say, the vi'i major of the law must be esteemed as effective as any other in absolving both the ship and her owner; and that, therefore, whether the vessel can or cannot be regarded, in any case, as the subject of an independent liability, she can never be regarded as liable for the consequences of an act done under legal compulsion." the Circuit Court of the United States has reversed the decision of Judge Kane, and held that, although the vessel is in charge of a licensed pilot, and the injury arises from the fault of the pilot alone, still, the vessel is bound in specie to answer for the damage. 1 The Ann, 1 Mason's K. 508-513. OF PILOTS. 419 440. There can be no doubt as to the duty of the master engaged in a foreign trade to put his ship under the charge of a pilot, both on his outward and homeward voyage, when he is within pilotage limits/ This is a duty he owes to his owners ; and if he fails to take a pilot, when he might have obtained one, and grounds, the underwriters are discharged.^ But, ' The William, 6 Rob. 316; Law v. Hollingsworth, 7 T. R. 160; 3 Kent's Com. 175. » Phillips V. Headlam, 2 B. & Adol. 380; M'Millan v. U. Ins. Co., 1 Rice's S. C. R. 248. In this case it was held that where the master fails to employ a pilot to navigate a vessel, in coming into or leaving a port where it is customary to do so, and a loss happens in consequence of a pilot not having been employed, the underwriters upon a policy on the cargo would be discharged. But if the vessel pass uninjured through the dangers to avoid which a pilot is usually employed, and the loss happens at a point beyond which the pilot's services cease to be necessary, the assured would be entitled to recover. The true principle was said to be this : if a vessel without a pilot sustain injury in entering or leaving a harbor where it is customary to have a pilot, that then such injury does not come within the perils insured against. It is not a peril of the sea; it is a loss from the bad navigation of the vessel, and is to be set down to the fault of the master, and, con- Bequcntly, the owners would be liable for it. The general rule is, if the owners would not be liable for the loss, that then the in- surers arc. In the case of Flanigen v. Washington Ins. Co., 7 Barr's R. 300, it was held that the Pilot Law of Pennsylvania did not create a statutory Hcaworthincss. And therefore a policy of insurance on an outward-bound vessel is not avoided by reason of not having on board a pilot, although a loss occurred in pilot-ground in the bay, and at the time of the voyage there was an establishment of pilots at the port of departure, and the Act of 1803 required such a vessel to take a licen.sed pilot, or forfeit a sum equal to half- pilotage. The Court, however, did not deny that if u vessel sails from a port where there is an establishment of pilots, and the 420 THE LAW OF siiirriNG. aside from the duty the master is under to the owners, of taking a pilot, it has been doubted whether a foreign ship is compeUable, under the usual provisions of pilot laws, to take a pilot.' The o-eneral English law nuxkes no distinction, whatever may be the case under some of the British pilot laws, between foreign and domestic ships ; and the compulsory provisions of our Pilot Acts apply equally to foreign as to domestic ships. The Pennsylvania Act of 1803 mulcts foreign vessels in special liabili- ties.' It should be also observed that the neglect to nature of the navigation requires one, it is his duty to take a pilot on board. This, as a general proposition, was admitted to be true. It required, however, the Court said, to be received with some qualification. " It is not necessary," observed Rogers, J., "in all cases, to take a pilot, without regard to the burden of the vessel or the nature of the trade. In 1 Emerigon, p. 402, it is laid down that a captain who knows the place to which he is bound is not obliged to employ a coast-pilot. These matters must be regulated by the custom of the port; and hence the necessity of inquiring into the custom, which can be done only through the medium of a jury. Is it customary or necessary for a vessel engaged in the coasting trade, of the burden of the one in question, to take a pilot, when the master, in the opinion of the owner, has competent skill to conduct her to the ocean ? That the river and bay of the Delaware is pilot-ground for all vessels engaged in the foreign or coasting trade, is most true; but it is made so, not by force of the Act of 1S03, but by the usage of the trade or port. It is coeval with the settlement of the province, or, at any rate, existed, and was judicially known, long before the passage of the Act in ques- tion. That the usage may be modified by statute may be con- ceded, but not to the extent of creating a statutory seaworthiness." Vide the case of Bolton v. Am. Ins. Co., reported in 3 Kent's Com. 176, note; and Keeler v. Firemen's Ins. Co., 3 Hill's R. 250. ' The Girolamo, 3 Ilagg. Ad. li. 175. ^ The Legal Intelligencer, May 7, '52. OF PILOTS. 421 take a pilot, when it ought to be done, will subject the owners to a suit for the damages that may hap- pen to shippers and others by such default/ 441. It is not sufficient for the owners of a vessel doing a damage to allege merely that there was a licensed pilot on board, and upon that simple aver- ment to claim exemption from liability, unless the other side can prove the damage not to have arisen from the fault of the pilot. They are bound to prove that the pilot was actually directing the course of the vessel. "The general liability of vessels doing damage," says Dr. Lushington, in the case of The Protector,^ " remains as it was. The ancient rule of the Admiralty and common law are not abolished. The effect of the Act is merely this, that the liability is restricted to certain cases, and the extent of that liability limited to the value of the ship and freight. But the great principle that a wrong-doer is responsible to the injured party, saving in the excepted cases, continues unaltered. 442. " Is it not incumbent, then, upon the parties who claim an exemption from a general liability by reason of a special legislative enactment, to show the grounds on which the exemption is claimed ; and if, as in these cases, the exemption is rested upon the fact that the ficcident was the fault of a pilot on board, nrc tlicy not bound to prove the misconduct ' M'.Millan v. Ing. Cn., 1 Rico (S. C), 248; Kcolcr v. Fire- men's Ins. Co., 3 Hill, 250; 3 Kent's Com. 17(), note; Abbott on Shipping, 2H0. ' ] W. Hob. K. 45. 422 THE LAW OF SHIPPING. of that pilot? dan the Court infer, in all cases, that a collision arises from his fault ? It may be accidental, or arise from the fault of the master or mariners, or even from some defect of the vessel itself. How can I, then, throw the otius prohandi on the owners of the vessel which has received the damage ? It is almost impossible they could prove it. The accident, in cases of this kind, most fre- quently occurs in the darkness of the night. In such cases, then, how is the owner of the suffering vessel to prove that the collision arose from the fault of the master, or the neglect or misconduct of the crew on board the vessel by which the damage is occa- sioned? He has no means of so doing; and it would, I conceive, be an aggravation of the injury, if this Court were to impede the attainment of his redress, by imposing demands upon him which, in the majority of instances, he would be wholly unable to satisfy." We cannot but think that these considerations are conclusive, and should outweigh the opposite decisions, in Bennett v. Moita,^ Ritchie v. Bousfield,^ and in The Christiana,^ where Sir C. Robinson appears to have adopted the doctrine of the first two cases. ' 7 Tuunt. R. 258. ^ Ibid. 309. " 2 Hagg. Ad. R. 183. 423 CHAPTER IV. OF THE CONVEYANCE OF PASSENGERS. 443. The aiithoritj- of a master at sea is necessarily summary and often absolute. All on board are sub- ject to his authority, and within its scope are bound by it.^ Whatever is necessary for the security of the » Chamberlain v. Chandler, 3 Mason's R. 242, 245. "For the time," said Judge Story, in this case, " the master exercises the rights of sovereign control ; and obedience to his will, and even to his caprices, becomes almost indispensable. If he chooses to per- form his duties, or to exercise his office, in a harsh, intemperate, or oppressive manner, he can seldom be resisted by physical or moral force; and, therefore, in a limited sense, he may be said to hold the lives and personal welfare of all on board in a great measure under his arbitrary discretion. He is nevertheless responsible to the law; and if he is guilty of gross abuse and oppression, I hope it will never be found that Courts of justice are slow in visiting him, in the shape of damages, with an appropriate punishment." By the Act of Congress of May 17, 1848, chap. 41, sec. 5, it is provided that the captain of any vessel, whether of the United States or any other country, having sufficient capacity, according to law, for fifty or more passengers (other than cabin passengers) employed in transporting sueii passengers between the United States and Europe, is authorized to maintain good discipline, and such habits of cleanliness among such passengers, as will tend to the preservation and promotion of healtli ; and to that end he is required to cause such regulations as he may adopt for tliis pur- po.sc to be posted up, before sailing, on board such vessel, in a place accessible to such pa.sscngcrs, and shall keep the same so posted up during the voyage. 424 THE LAW OF SHIPPING. vessel, the discipline of the crew, the safety of all on board, the master may lawfully require, not only of the ship's company, who have expressly contracted to obey him, but of those also whom he has engaged to carry to their destination on the implied condi- tion of their submission to his rule/ On the ap- proach of an enemy, he has a right to assign pas- sengers on board a station, which it is their duty to accept.' This is but an example of the application of the general doctrine, that a passenger is bound to do works of necessity for the general security, and for the preservation of the lives of all on board.^ 444. And for his services he is entitled it seems to remuneration. The reason assigned is, that except under peculiar circumstances, the passenger is at liberty to give up his passage and quit the ship. Hence, if he remains to assist the shi^) in her dis- tress, and at the risk of his personal safety, he does so voluntarily, and may, therefore, be entitled to remuneration. Yet, in a case where the ship is attacked, where the passenger has no means of leaving her, and would have no right to quit her, even if he had, in such a case, where he is compelled to remain and assist in the defence of the ship, he will be entitled, it is said, to prize money. So that ' Abbott on Shipping, p. 282. » Boyce v. Bayliffe, 1 Camp. N. P. K,. 58 ; Same v. Douglass, Id. 60. 3 Newman v. Walter, 3 Bos. & Pull. G12. It was held in this case that a passenger may become a salvor. Vide, also, to the same point, The Two Friends, 1 Rob. Ad. H. 285 ; The Beaver, 3 Rob. Ad. R. 202 ; The Joseph Harvey, 1 Id. 306. OF THE CONVEYANCE OF PASSENGERS. 425 his rio-ht to remuneration does not in all cases de- pend upon the fact, whether his services were volun- tary or not.^ 445. The contract for the conveyance of passen- gers on the high seas, or on the navigable waters of the United States in steamboats, and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in business of commerce and navigation between ports and places in different States and ter- ritories, is a maritime contract, and a subject of Ad- miralty jurisdiction.' Hence, on a breach of a passenger contract, and damage resulting, the ship, as well as the owner, is bound to respond, and all the reasons in the maritime law for charging the ship in case of the breach of a contract of affreight- ment of goods and merchandise, apply Avith equal force in the case of the breach of a passenger con- tract, and the one is as much the appropriate subject of Admiralty jurisdiction as the other.^ 44G. If the contract stipulates that the carrier will convey the passenger to a designated port, and, without the consent of the passenger, or any default or neglect on his part, he is carried to a diflerent port, no recovery can be had for the amount of the • Newman v. Walters, 3 IJos. & Pull. G12. "The I'ropcllcr Gcncsco Chief, 12 How. 443; The Abcrfoyle, JJlatcl.ford'rt R. 300; The Pacific, Id. 5G9; The Creole, 2 Whart. Dig. G55; The Ach.sah, Ibid. ; (!haiubcrlain v. Chandler, 3 Ma.son. 242. ' The Aberfoylc, 1 inatchford'.s K. :',W ■ The Pacific, Li. OOH. 42G THE LAW OF SHIPPING. passage-money. On the contrary, the passenger may recover of the carrier any damage he may have sustahied from this breach of the contract. If the contract itself specifies a certain sum, as the penalty to be incurred upon a failure to perform the conditions of the contract, and those conditions are not performed, the penalty is thereby forfeited, and may be recovered. But if there is a part perform- ance, the penalty may be modified accordingly. 447. Hence, when a passenger advances half the sum stipulated in the contract, which has a penal clause of one thousand dollars in case of failure, and the other party fails to complete his part, the pas- senger cannot recover back the sum advanced and the penalty too ; he can only recover the penalty.^ When the contract is express, the parties must be governed by its terms. The usage of the particular trade, however, will be taken into consideration, in the interpretation of those terms. If the contract is not express, it may also be evidenced by such usage. ^ 448. If the time of sailing forms an essential part of the contract, and is not complied with, the ship- owner cannot recover the passage-money, but is responsible for the damage the passenger may have sustained from his non-performance. If, on the con- trary, the time of sailing is not a real and essential > M'Gloin V. Henderson, G Lou. K. 715; La. Code, Ar. 2123 ; Pothier on Ob., No. 342. 2 Abbott on Shipp., 284; Gillan v. Simpkin, 4 Camp. N. P. Pt. 240 ; Andrew v. Moorhouse, 5 Taunt. R. 435. OF THE CONVEYANCE OF PASSENGERS. 427 part of the contract, but only matter of representa- tion while the negotiation is going on, in that case there is a compliance with the contract, if the ship sails in a reasonable time.^ When the day is fixed for the ship to sail, and the passenger has paid the price of his passage, but, owing to his misfortune or neglect, without any laches being imputable to the master or owner of the ship, is left behind, he can- not recover back the passage-money. The principle "Empty for full" is equally applicable to this case as to the case of freight where no cargo is put on board according to agreement.^ ' Yates V. Duff, 5 Car. & P. 3G9. *1 Peters' Ad. R. 297, note. "Near forty years ago," says Judge Peters, " in my outset at the bar, I brought hulch. r/ss»???j). for money had and received, &c., against the master of a ship, for ninety guineas paid, in advance, by a gentleman, for himself and others, who took the cabin, and agreed for their passages from an outport of England to Philadelphia. The day for going on board had been fixed by the parties. The passengers loitered on their route from London, and did not arrive at the port appointed until the ship had departed. Tlie case turned out to be as befm-c f^tatcd, though conceived by my client to be otherwise, as to the day fi.Kcd. Such of the stores as were in preservation, and laid in by the passengers, were returned. I failed in the cause. The passage- money was held to be legally retained, among other reasons, on the principle mentioned in the above case (The Brig Cynthia) ; namely, that freight is earned, ' empty for full,' when the disap- pointment is owing to the misfortune or neglect of the freighter, and no laches are itnputalile to the master or owner of the ship. In this ca.sc, it appeared that the wind, which had been adverse, veered to a point favorable to the ship's departure from the Down.s, and afforded an opportunity which could not, at that season of the year, be ju.stifiably neglected. She had waited three or i'lur days after that agreed on." Vide, with respect to passenger contracts, MuUoy V. Hacker, f) East, .'510; Siordet v. IJrodie, 3 Camp. N. 428 THE LATT OF SHIPPING. 440. A contract to carry passengers differs from a contract to carry goods. For the goods, the carrier is answerable, at all events, except the act of God and the public enemy. But, with regard to passengers, his undertaking and liability goes only to this extent, nameh', that he, or his agent, shall possess competent skill, and that, as far as human care and foresight can go, he will transport them safely. Hence, he is bound for defects in the means of conveyance, if they might have been discovered and remedied upon the most thorough and careful examination of the vehicle ; but he is not liable for accidents happening from an internal and hidden defect, which a thorough and careful examination could not disclose, and which could not be guarded against by the exercise of a sound judgment and the most vigilant oversight.' 449 a. Carriers, engaged in the business of con- P. R. 253 ; Young v. Fcwson, 8 Car. & P. 56 ; Prendcrgast v. Compton, Ibid. 454. ' To bring a person within the description of a common carrier, he must exercise it as a public employment ; he must undertake to caiTy goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation, pro hac vice. A common carrier has therefore been defined to be one who under- takes, for hire or reward, to transport the goods of such as choose to employ him from place to place. Story on Bailments, 322 ; See The Huntress, Duvies' R. 82 ; Citizens' Bank v. Nantucket Steamboat Co., 2 Story's R. 16; Christie v. Griggs, 2 Camp. 79; Aston V. Heaven, 2 Esp. R. 533 ; 2 Kent, 406 ; Boyce v. Ander- son, 2 Peters, 150; Stokes v. Saltonstall, 13 Id. 181; Stockton V. Frey, 4 Gill. 408, 423 ; Ingalls v. Bills, 9 Metcalf, 1. OF THE CONVEYANCE OF PASSENGERS. 429 veying goods and passengers, are bound to receive passengers on board, if they iiave suitable accommo- dations, and there is no reasonable objection to the character or conduct of the person applying for a passage. The right of passengers to a passage on board of a steamboat is not an unlimited right. It is subject to such reasonable regulations as the pro- prietors may prescribe, for the due accommodation of passengers, and for the due arrangements of their business. They have the right, also, to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to admit passengers on board who refuse to obey the reasonable regula- tions of the boat, or who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, or whose characters are doubtful, or dis- solute, or suspicious, and, a priori, whose characters are unequivocally bad. Nor are they bound to admit passengers on board whose object is to inter- fere with the interests or patronage of the proprietors, so as to make the business less lucrative to them.^ 450. As passengers are bound to obey the orders and regulations of the proprietors, unless they are oppressive and grossly unreasonable, whoever goes on board, under ordinary circumstances, impliedly contracts to obey such regulations, and may be justly refused a passage, if lie wilfully resists or violates tlicm.^ If a passenger should use threats of personal violence towards the captain, he may ex- « Jcncks V. Coleman, 2 Sum. II. 221, 224; Citizens' Bank v. Steamboat Co., supra. « Ibid. 430 THE LAW OF SHIPPING. elude liiin from the table, and require him to take his meals in his own private apartment. If the husband be excluded Irom the cuddy-table, and the wife, not from compulsion, but from a wish to be with her husband, take her meals with him in pri- vate, this will not amount to a breach of contract on the part of the captain so far as regards the wife. 451. The contract of passengers is not for mere ship-room, and personal existence on board ; but for reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for toleration merely, but for respectful treatment, for that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evil without reluctance, and that promptitude which administers aid to dis- tress. In respect to females, it proceeds yet further : it includes an implied stipulation against general obscenity, — that immodesty of approach which bor- ders on lasciviousness, and against that wanton dis- regard of the feelings which aggravates every evil, and endeavors, by the excitement of terror, and cool malignity of conduct, to inflict torture upon suscep- tible minds. The law gives compensation for men- tal sufferings occasioned by acts of wanton injustice, equally whether they operate by way of direct or of consequential injuries. In each case, the contract of the passengers for the voyage is, in substance, violated ; and the wrong is to be redressed as a cause of damage.^ ' Chamberlain v. Chandler, 3 Mason, 242, 246. " I do not say," observed Judge Story, " that every slight aberration from propriety or duty, or that every act of unkindness or passionate OF THE CONVEYANCE OF PASSENGERS. 431 / 452. Where a person agrees for a cabin passage, and pays his passage, he is entitled to the benefit of his contract. If, therefore, he is excluded from the cabin, the owner of the vessel is responsible in damages. And it is no defence to an action for the injury, that, when the passenger goes on board, he is told by the master that he is unable to lodge him in the cabin, and proposes that he should forbear taking his passage on board, or stay with his bag- gage on deck. No proposition of this nature can absolve the owners from the obligation to accommo- date him in the cabin, together with his baggage.' 453. Formerly, it was the received doctrine that folly, is to be visited with punishment; but, if the whole course of conduct be oppressive and malicious, — if habitual immodesty is accompanied by habitual cruelty, — it would be a rcpnxich to the law if it could not award some recompense." In the case of Young V. Fewson, 8 Car. & P. 5G, which was an action against the captain of a ship for not furnishing good and fresh provisions to a passenger on the voyage, Lord Denman, in his address to the jury, .said : " I think the result of the whole is, that the cap- tain did not supply so large a quantity of good and fresh provisions as is usual under such circumstances. But there is no real ground of complaint, no right of action, unless the plaintiff has really been a sufferer J for it is not because a man does not get so good a dinner as he might have had, that he is therefore to have a right of action against the captain who does not provide all that he ought. You must be satisfied that there was a real grievance sus- tained by the plaintiff." ' St. Amand v. Lizardi, 4 Lnu. R. '24.']. An agreement between the master of a vessel and a passenger, that the latter shall remain on board until he has paid his freight, is lawful, lie cannot plead, as a .'^et-off, that the master did not furnish the provisions which ho .stipulated. These are mutual covenants, in wliich each party may have an action. Com. v. Shultz, Bright. 11. '2'.*. 432 THE LAW OF SHIPPING. the carrier, whether by hand or water, was not habk^ for the baggage of passengers, unless a dis- tinct price had been paid. It was placed on the ground that the carrier is liable only in respect to his reward, and that the compensation should be in proportion to his risk. But now, by common usage, sanctioned by the Courts, a reasonable amount of bagaa2;e is deemed to be included in the fare of the passenger. The Courts, however, will not allow this custom to be abused, and, under pretence of baggage, permit articles to be included not within the scope of the term or intent of the parties. They will not permit the carrier to be defrauded of his just compensation, nor subjected to unknown hazards. Hence, when a trunk, containing valuable merchan- dise, and nothing else, was taken on board a steam- boat, and deposited with the ordinary baggage, and lost, it was held that the carrier was not liable.^ ' Pardee v. Drew, 25 Wend. R. 459; Orange County Bank v. Brown, 9 Wend. 85; Gibbon v. Paynter, 4 Burr. 2298; Bennett V. Dutton, 10 N. H. 481, 48G ; Blancbard v. Isaacs, 3 Barbour's S. Ct. 388 ; Batson v. Donavan, 4 Barn. & Aid. 321 ; Brooke v. Pickwick, 4 Bing. 218; Peixotte v. M'Laugblin, 1 Strobhart, 4G8 ; 1 Sniitb's Leading Cases, 2G9. In tbe former of these cases, Nelson, J., in delivering tbe opinion of tbe Court, did not put it upon the ground that the passenger intended to impose upon the carrier, and, under the cover of baggage, obtain the transportation of merchandise, free of expense : this, be said, was not material. " It is sufficient,'' he observed, " that such is the practical effect of his conduct. Neither the captain, nor any of the bands on board the boat, could have suspected that it was a box of costly merchandise, requiring extraordinary attention and care. They could regard it only as the ordinary baggage-trunk of the traveller, containing the usual personal conveniences belonging to him in that character, falling within the customary fare, and to OF THE COXVETANGE OF PASSEXGEKS. 433 454. So, too, the carrier would be exempt when the baggage consists of an ordinary travelling-trunk, in which there is a large sum of money. Such money is not considered as included under the term " baggage."^ Money, however, taken hona fide for travelling expenses and personal use, may properly be regarded as forming a partof a traveller's baggage. The passenger is not bound to give notice of the con- tents of his trunk, unless particular inquiry be made by the carrier. But it must be fully understood that money cannot be considered as baggage, except such as is hona fide taken for travelling expenses and per- sonal use ; and to such reasonable amount only as a prudent man would deem necessary and proper for such purpose. But money intended for trade or business, or investment, or for transportation, or any other purpose than as above stated, cannot be re- garded as baggage.'^ be stowed away in the place where such articles are usually de- posited. The carrier is thus doubly wronged : — 1, deprived of his just reward for carrying the goods, and, 2, prevented from exer- cising proper precaution against the dangers to which the property may be exposed." ' Orange County Bank v. Brown, 9 Wend. 85. ■ Jordan v. The Fall River Railroad Company, 5 Gushing, G9. This was an action against the railroad company, who were common carriers of freight and pas.sengcrs from Boston to Fall River. The plaintiff purchased two tickets, from Boston to South Braintrec, and from .South Braintrce to Bridgewater. Ilcr trunk contained articles of clothing, a bracelet, and three hundred and twenty-five dollars in gold. The trunk wa.s delivered, at the station in Boston, to a person who had been in the habit of receiving the baggage of passengers. It was therefore held that a delivery to him was a delivery to the Company. They were bound to keep an agent at the station in Boston, to receive baggage ; and if the train was not 28 434 THE LAW OF SHIPPING. 455. In the recent English case of The Great Northern Railway Company v. Shepherd/ it was held, that if a passenger on a railway, by a third- class parliamentary train, carry merchandise packed up with his personal luggage, the railway com- at the station, and the baggage was delivered to the baggage- master, or person acting in that capacity, then the Company was liable for it. Fletcher, J., in delivering the opinion of the Court, said that the time had been, in this country, when the character and credit of our local currency were such, that it was expedient and needful for persons travelling through different States to pro- vide themselves with an amount of specie which could not be con- veniently carried about the person, to defray travelling expenses. " But even if bills are taken for this purpose, it may be convenient and suitable that they should be, to some amount, placed in a travelliug-truuk, with other necessary articles for personal use. This would seem but a reasonable accommodation to the traveller. It has been objected that the carrier will not expect that there will be money with the baggage, and will not, therefore, be put upon his guard. But, surely, a carrier may very naturally under- stand and expect that a passenger will place his money for ex- penses, or some part of it, in his trunk, instead of carrying it all about his person ; he certainly might as naturally expect this, as that there would be jewels, or u watch, in a travelling-trunk, for which articles a carrier has been held responsible But in the present case, if the money in the trunk could not be con- sidered as a part of the plaintiflp's baggage, according to the rule now stated, so that the defendants would be actually responsible for it as common carriers, yet, as the trunk was in the custody of the defendants, they would, upon common and familiar principles, be answerable for gross negligence, wholly irrespective of their liability as common carriers. This principle is well settled in the case of Brooke v. Pickwick, 4 Bing. 218; Batson v. Donovan, 4 B. & Aid. 21." See, also, M'Gill v. Rowand, 3 Barr, 451 ; Jones V. Voorhees, 10 Ohio, 145, 150; Hawkins v. IIoflFman, 6 Hill's R. 580; Orange County Bank v. Brown, 9 Wend. 85; Weed v. Saratoga & S. R. R. Co., 19 Wend. 534. • 9 Eng. Law and Eq. 477. OF THE CONVEYANCE OF PASSENGERS. 435 pany are not responsible for the value of the mer- chandise, if the luggage be lost from the train. But if the merchandise be so packed as to be ob- viously merchandise to the eye, and the railway company make no charge or special bargain for the carriage, they will be responsible for the loss. By Act of Parliament, each third-class 23assenger is allowed 56 lbs. luggage.^ It was held that this per- mits a husband and wife, travelling together, to take 112 lbs. weight of luggage betw^een them. 45G. The proprietors of public conveyances are not responsible for injuries to the persons of pas- sengers, unless such injuries arose from their negli- gence. If they have done all that human foresight and care can do to insure the safety of the pas- sengers, they are not liable to respond in damages.^ The same rule, however, does not apply to the baggage of passengers. It is clear, upon the autho- rities, that, in the case of baggage, the carrier is held responsible for all losses, except such as arise from inevitable accident, or the enemies of the country. Hence, a company, using steamboats and railroads for the transportation of passengers and their Ijaggage, are liable, as common carriers, for damages ha))pening to the baggage of passengers from a defect in the vehicles or machinery used, althou^rli tlic (;omi)any is not chargeable with actual negligence, or want of skill, or want of care, in ' 7 anfl 8 Vict., c. 85, s. 6. 2 The ('.inidcn & Ainhoy R. & T. Co. v. Burke, 1:] WmJ. (ill ; Story'.s bailments, 001; Stokes v. SaltoiLstall, 13 Peters, 181 j ante, sec. 449, and authorities there cited. 436 THE LAW OF SHIPPING. securing the safety of the baggage ; and this upon the ground ahvady stated, that, when injury happens to it, nothing -will excuse the company but inevitable accident, arising from superhuman causes, or the acts of the enemies of the country. Nor will the com- pany be excused, in such a case, under a notice in the usual form, that " All baggage is at the risk of the owners," notwithstanding the notice is brought home to the knowledge of the passengers. AVhat- ever may be the effect of such notice generally, — and that question will be hereafter considered, — it has never been understood to excuse the carrier from accidents arising from the breach of the im- plied agreement, in every contract of that nature, that the vessel, or coach, or vehicle, whatever it be, is sufficient for the business in which it is employed.^ 457. A common carrier has two distinct liabilities, the one for losses by accident or mistake, where he is liable as an insurer ; the other for losses by default or negligence, where he is answerable as an ordinary bailee. He may, however, restrict his liability as insurer, and thus protect himself against misfortune, but public policy, moving upon enlarged and liberal considerations, requires that he should not be per- mitted to stipulate for impunity where the loss occurs from his own default or neglect of duty.'^ ' Camden, &c., Co. v. Burke, 13 Wend. 611 ; Lyon v. Molls, 5 East, 428 ; Dorr v. N. J. Steam Nav. Co., 4 Sand. S. C. R. 136. 2 Clay V. Willan, 1 II. lil. 298; Evans v. Soulc, 2 M. & Selw. 1; Smith v. Home, 8 Taunt. 11. 146; Bodenham v. Bennett, 4 Price, R. 34 ; Down v. Froraont, 4 Camp. R. 41 ; Story's Bail- ments, 8. 549 J Dorr v. N. J. Steam Nav. Co., 4 Sandford's S. C. OF THE CONVEYANCE OF PASSENGERS. 437 458. The question now arises, whether the carrier can restrict his liability, as insurer, by a public no- tice, or whether, to effect that object, there must be an express special contract. By the common law, the carrier may, by exj)ress contract, restrict his liability.^ Many of the modern English cases went still further, and held that he might restrict his common law liability by a public notice, where the notice was brought home to the bailor, and his as- sent could be presumed.^ 459. This extension of the doctrine, however, did not meet with universal favor, and the Courts, at one period, evinced, and wisely evinced, a disposition to hold that common carriers could not, by their no- tices, shake off the responsibility fastened upon them by the common law. There is, however, it is be- lieved, no case in which the right of a carrier thus to limit his responsibility, was ever by express decision denied. Tlie doctrine produced much mischief So many questions sprung up, as to what should be the character of the notice, and what should be sufficient evidence that the notice came to the knowledG;e of the bailor, &c., that Parliament at length interposed R. 13G; N. Y. Steam Nav. Co. v. Merchants' Bank, How. R. 344; Austin v. The Manchester, &c., Ilailway Co., IG Jurist, 7Go. See article upon the Law of Carriers in the American Law llegis- ter, vol. i. (]'). ' Alcyn, 03 ; 4 Co. 84 ; Note to Southcote's Case, 4 Burr. 2301, per Yates, J.; 1 Vent. 100, 238; Peake's N. P. Cas. 150; 2 Taunt. 271; 1 Htarkic's II. IHO. 2 Nicholson v. AVillan, fj East, r>07 ; Kccr v. Same, 2 IIm<1. 53; Harris v. Packwood, 3 Taunt. 271; liut.'ion v. Donovan, 4 B. & Aid. 21. 43S THE LAW OF SHIPPING. to relieve the public from the doubt and uncertainty that hung over this branch of the law. By the Car- riers' Act of 11 Geo. 4, and 1 Will. 4, ch. 68, passed July 23, 1830, limitations by public notice were pro- hibited, whilst by the Gth section of the Act, special contracts or agreements remained upon the same footing they occupied before its passage. This Act restored, in effect, the ancient and salutary rule of the common law. 460. Such is the state of English law upon this subject, and our American law occupies the same ground. It is reasonable, it is just, and in con- formity with sound policy, to permit the carrier by express special contract, to restrict his liability as insurer, and protect himself against misfortune, where the loss does not occur from his own default or neglect of duty. " The necessity of allowing common carriers upon the seas to make special con- tracts with the owners of property committed to their care, was early seen and recognised, and ex- ceptions in bills of lading, restricting the carriers' liability, have from time to time been added. The same necessity exists as to the domestic commerce in this vast country of ours, where the internal trade is so extensive, reaching as it does, over the greater part of a continent, traversing rivers in length equal to the distance across the Atlantic, stretching out over large inland seas, where the amount of property annually carried has swollen up to hundreds upon hundreds of millions of dollars, — where there exist extensive lines of transportation, reaching through different States, and controlled in OF THE CONVEYANCE OF PASSENGERS. 439 different parts by the several owners, and where in- surance companies are organized for the protection of the owners of the property thus transported."^ ' 4 Sandford's Sup. C R. 136 ; Campbell, J., overruling Gould v. Hill, 2 Hill's R. G23 ; N. J. St. Nav. Co. v. Merchants' Bank, 6 How. (U. S. R.) 344 ; Wills v. The St. Nav. Co., 2 Comstock, 204; Gordon v. Walker, 8 Serg. & Raw. 533. This latter case was a suit against the defendant as a common carrier, there being an exception in the bill of lading of the dangers of the river, &c. Tilghman, C J. said, " If the case had rested solely on the written contract, there would have been much to say in favor of the deci- sion of the Court, because, be the common law what it may, the parties have a right to alter or modify it by special contract, and when they have done so, the question is, What is the construction of the contract ?" See the following recent English cases : Austin v. The Manchester, &c., Railway Co., 21 Law J. (C. P.) R. 179, S. C. 10 Jurist, 703 ; Chippendale v. The Lancashire, &c., Co., 21 Law J. R. (2 R.) 347 ; Shaw v. The York, &c., Co., 20 Id. 440; Austin v. The Manchester, &c., Co., 18 Ibid. 181; Carr v. The Lancashire, &c., Co., 21 Law J. R. 201. In the case of Chippendale v. The Lancashire Railway Co. (21 Law J. R. 21), it was held that the following ticket, given by the Company, and signed by the bailor or his agent, formed a special contract between the parties, and exempted the Company from all risk whatever of damage to the animals during the journey : " N. B. This ticket is issued subject to the owner undertaking all risks of conveyance whatever, as the Company will not be responsible for any injury or damage, howsoever caused, occurring to live stock of any de- scription travelling upon the Lancashire and Yorkshire Railway Company, or in their vehicles." Notwithstanding, the truck in which the animals were conveyed was found by the jury to be so defectively constructed, as to be un6t and unsafe for the purpose of conveying cattle along the lino, the Court held, that by the tcrm.s of the ticket it was to be understood that the owner i)f flic cattle took upon himself all risk whatever of damage to them during the journey, and, consequently, that the Company were fully protected. The Court, however, studiously confined their opinion to the particular case, and laid down no general rule. " I 440 THE LAW OF SHIPPING. 4C1. The doctrine that the cjirrier may restrict liis liability by express special contract, has its basis in the common law. It is the American doctrine. It is productive of no evil consequences. It throws over the subject neither doubt nor uncertainty. It impairs no right. But the extension of the doctrine to public notices, finds no foundation in the common law, is supported by no sound reason, and is produc- tive of manifest mischief. The law, from motives of policy, throws upon the carrier grave responsibilities. Shall he rid himself of these res^Donsibilitics by pub- licly declaring that he will not be responsible ? And shall the assent of the bailor to that declaration be implied from the simple circumstance that know- ledge of it is brought home to him ? The argument is, that when a party delivers goods to be carried, after seeing a notice that the carrier intends to limit his resjDonsibility, his assent to the terms of the no- tice may be implied. But this argument entirely overlooks a very important consideration. Notwith- standing the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of goods under such circumstances au- takc it," said Earlc, J., " that the carriage was fit for the journey, and fit for the weight, and that the damage has entirely arisen from the freight being living animals, who made an eff'ort to escape, and so injured themselves. That seems to me to be a risk for which the Company peculiarly said that they would not be respon- sible. I think that a limitation, however wide in its terms, being in respect of live stock, is reasonable." The doctrine stated in the text is not recognised in Pennsylvania. General notices limit the responsibility of the carrier. See Camden & Amboy R. Co., v. Baldauf, 16 Penn. State II. G7 ; Angell on Carriers, 525-610. OF THE CONVEYANCE OF PASSENGERS. 441 thorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to iiisist on his legal rights, as it is that he was willing to yield to the wishes of the carrier.' 4G2. The carrier is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate him- self without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public, limiting his obligation, which may or may not be assented to. He is bound to receive and carry all the goods offered for trans- portation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. And we agree with the Court in the case of Hollistcr V. Nowlen, that, if any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner in- tended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualifi- cation. The burden of proof lies on the carrier, and notliiug short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employ- ment. The exemption from these duties should not ' Hollistcr V. Nowlen, 10 Wend. 234 j N. J. St. Nav. Co. v. Mcr. Bank, G How. 344; Dorr v. N. J. St. Nav. Co., 4 Sand. S. C. K. I3(Jj Halo V. The Same, 15 Conn. 539. By entering into a special contract, the owner of the goods virtually agrees that the carrier, as to the particular transaction, is not to be regarded as in the cxerci.se of his public cn)ploynicnt. lie stands in the posi- tion of an ordinary bailee for hire. 442 THE LAAY OF SHIPPING. depeiKl upon implication or inference, founded on doubtful and conllictiug evidence; but sbould be specific and certain, leaving no room for controv-ersy between the .parties/ 463. Common carriers are bound to deliver to each passenger, at the end of his journey, liis trunk or baggage. The whole duty in this respect rests upon the carrier. The exercise of ordinary care in marking the baggage, entering it upon a way-bill, and delivering a check-ticket to the owner, renders easy its discharge. The passenger is not required to expose his person in a crowd, or endanger his safety in the attempt to designate or claim his property. If, however, the delivery should be conformable to a well-established and notorious usage, known to the j)assenger, the carrier would probably be discharged. He is bound to make the delivery, but the particular mode in which this shall be done may well be deter- mined by the usage.^ 464. The same rules are applied to passage-money, as are established on the subject of freight. Hence, if it is paid in advance, and the passenger is not carried to the place of destination, by reason of any event not imputable to him, the passage-money is to be repaid, unless there is a special agreement to the contrary. This is the admitted doctrine of the 1 N. J. St. Nav. Co. V. Mer. Bank, 6 How. 344, 382 ; Nelson, J., 1 Smith's Leading Cases, 279. * Cole V. Goodwin, 19 Wend. 251 ; Brown v. Balston, 9 Leigb; Valin on the French Ord., torn. 1, p. 530 ; 2 P^sp. 693 ; Abbott on Shipp. 463. OF THE CONVEYANCE OF PASSENGERS. 443 maritime law, and is in conformity with tlie esta- blished principles of the common law/ • 4G5. Strictly, passage-money is not due before the passenger arrives at the port of destination. The period of payment, however, may be controlled by contract, or established by usage. In point of fact, a distinction is usually made between freight and passage-mone}^, the latter being pre-paid, and the former not until the termination of the voyage. If no contract is made, the usage must control the rights and duties of the parties. 4GG. In the recent case of Cope v. Dodd,^ the pas- senger paid in advance the price of his passage, from Philadelphia to Liverpool. The captain gave him a receipt for the same, which expressed the money to have been paid for his cabin passage in the ship Thomas P. Cope, "to sail to-day for Liverpool." This was held to be a contract to carry the passen- ger to the destined port. And as the ship was lost on the voyage, he was entitled to recover back the amount paid for his passage. The ship-owners en- deavored to show that there was an estaljlished custom ]jy wliich, under circumstances like those in the present case, the passage-money was not to be refunded. The Court held, that such custom could not ])e proved by single isolated instances. A usage which is to govern a question of right, should be so ' Ilnwlniid V. Tlio Urig Tiavinia, 1 Peters' Ad. R. 12G; Griggs V. Austin, :; J'ick. 20; Watson v. Day Binck, 3 Johns. II. 335; Cope V. Dndd, 1 Harris, 33; Lemon v. Gordon, 8 Carr & Pay. 392; Barker v. IIodg.son, 3 M. & S. 2G7j MoUoy, 250, 2G0. 444 THE LAW OF SUIPPING. certain, unirorni, niul notorious, as i)roba1)ly to be known to anil understood by the parties, as entering into their contract.* 4G7. The master of a ship has, of course, no lien on the passenger liiniself, or the clothes which he is actually wearing, when he is about to leave the vessel. But he has a lien on any other property he may have on board. There is no reason why there should not be the same lien for the recovery of passage-money, as for the recovery of freight. The lien attaches to the luggage of the passenger, and the master may detain it until the passage-money is paid.^ 468. The general rights of passengers, in ships upon the high seas, whether those rights are defined by special contract, or are derived from the law, may be successfully asserted by the judicial tribunals. But it has been found necessary, both in England and this country, in order to repress the cupidity and recklessness of ship-owners, to invoke the aid of special legislation. We propose to close this chapter by a concise statement of the several Acts of Con- gress upon this subject. It must be understood, however, that the passenger laws of the United States apply only to passengers whilst on their voyage, and until they shall have landed. After the landing of passengers, the laws of the United ' Cope V. Dodd, 1 Harris, 3.3 ; U. S. v. Duval, Gilp. 356 j Dean V. Swoop, 2 Bin. 72. ' Wolf V. Summers, 2 Camp. N. P. R. 631 ; Abbott on Sbipp., p. 288. OF THE COXYEYANCE OP PASSENGERS. 445 States do not come in conflict with the laws of a State, which oblige security to be given against their becoming chargeable as paupers; and for their re- moval out of the State, in the event of their having become so chargeable.^ But any State law, which imposes a tax or duty on passengers, arriving at the ports of such State, is in conflict with the powers of Congress, and repugnant to the Constitution of the United States.^ 469. By a recent Act,' it is provided, that if the master of any vessel, owned in whole or in part by a citizen of the United States of xVmerica, or by a citizen of any foreign country, takes on board such vessel, at any foreign port or place, a greater number of passengers than in the following proportion to the space occupied by them, and appropriated for their use, and unoccupied by stores, and other goods, not being the personal luggage of such passengers, that is to say, on the lower deck or platform one passen- ger for every fourteen clear superficial feet of deck, and on the orlop deck (if any) one passenger for every thirty such superficial feet, in all cases, with intent to Ijring such passengers to the United States of America, and shall leave such port or place with the same, and ))ring the same, or any number there- of, within the jurisdiction of the United States afore- said, or if any such master of vessel shall take on ' City of New York v. Milii, 1 1 Tutcrs' R. 102. « Passenger Cases, 7 How. 11. 402, 470, 5.57. "Act of 22(1 Feb., 1847, cinq.. Ki, s. I. ^^^r tlio cases of The Creole and The Acli.sab, an abstract of wbicb is given in 2 Wbart. Dig. 655. 446 THE LAW OF SHIPPING. board his vessel, at any port or place witliin the jurisdiction of the United States aforesaid, any greater number of passengers than the proportions aforesaid admit, with intent to carry the same to any foreign port or place, every such master shall be deemed guilty of a misdemeanor, and upon convic- tion thereof beibre any Circuit or District Court of the United States, shall, for each passenger taken on board beyond the above proportions, be fined in the sum of fifty dollars, and may also be imprisoned for any term not exceeding one year. 470. This section, that is, the first section of the Act of 1847, was amended by the Act of March 17, 1848,^ so that, when the height or distance between the decks of the vessel referred to in the said section shall be less than six feet and not less than five feet, there shall be allowed to each passenger sixteen clear superficial feet on the deck : and if the master of any such vessel shall take on board his vessel, in any port of the United States, a greater number of passengers than is allowed by this section, that is, the eighth section of the Act of 1848, with the in- tent specified in the first section of the Act of 1847, or if the master of any such vessel shall take on board at a foreign port, and bring within the juris- diction of the United States, a greater number of passengers than is allowed by this section (the 8th of the Act of 1848), such master shall be deemed guilty of a misdemeanor, and upon conviction there- of shall be punished in the manner provided for the punishment of persons convicted of a violation of the ' Chap. 41, sec. 8. OF THE CONVEYANCE OF PASSENGERS. 447 Act of '47 ; and in computing the number of passen- gers on board such vessel, all children, under the age of one year, at the time of embarkation, are ex- cluded from the computation. By the 10th section of this Act, so much of the first section of the Act of March 2, 1819,' or any other Act that limits the number of passengers to two for every five tons, is repealed. 471. It is also provided, that if any vessel owned as aforesaid, has more than two tiers of berths, or if the interval between the floor and the deck or plat- form beneath is not at least six inches, and if the berths are not well constructed, or if the dimensions of such berths are not at least six feet in length, and at least eighteen inches in width, for each passenger, the master of such vessel shall forfeit and pay the sum of five dollars for each and every passenger on board of the vessel on such voyage, to be recovered by the United States in any Circuit or District Court of the United States, where such vessel may arrive, and from which she sails.^ For all the purposes of the Act of 1847,^ two children, each being under the age of eiglit years, are deemed equal to one passen- ger. Children under the age of one year are ex- cluded, as before observed, in computing the number of passengers. It should be here observed, that the penalties denounced l^y the Act of 1847, arc declared to be liens on Uu) vessel or vessels incurring them, and they may Ije lil)elled and sold, upon their arrival within the jurisdiction of a District Court of the United States.'* » Ch. 46. » Act of Feb. 22, 1847, sec. 8. Mbid. *Sec. 5. 448 THE LAW OF SIIIPriNG. 472. The Act of 1848' has imposed many and new regiihitions upon the masters of passenger-ves- sels, having for their object the comfort and security of the passengers. We do not propose to detail with particularity all the provisions of this Act. We shall only refer to them in a brief and cursory manner. The first section requires that all vessels, whether of the United States or any other country, having suf- ficient capacity according to law for fifty or more passengers (other than cabin passengers) shall, when employed in transporting such passengers between the United States and Europe, have on the upper deck, for the use of such passengers, a house over the passage- way leading to the apartment allotted to such pas- sengers below deck, constructed and secured in the manner therein described. All vessels so employed, and having the capacity to carry one hundred and fifty or more passengers, are required to have two such houses. It is provided, however, that vessels having three permanent decks, may substitute booby hatches for such houses. 473. Provision is also made for ventilators/ for cooking-ranges on deck, for victualling passenger- vessels, &c., with adequate penalties annexed. The vast multitudes that annually leave the shores of Europe for the United States, crowding, as they do, the decks of every vessel, will at once suggest the wisdom and humanity of the various Acts of Con- gress that have been passed to secure and promote their health and comfort. » March 17, chap. 41. ^ y^j^ ^^^.^ 2. 449 CHAPTER y. OF THE CONVEYANCE OF GOODS IN A GENERAL SHIP. 474. A TRADixG-SHiP is employed by virtue of two distinct species of contract. First, the contract by which an entire ship, or, at least, the principal part thereof, is let for a determined voyage to one or more places. This is usually done by a written instrument, signed and sealed, and called a charter- party. Secondly, the contract by whicli the master or owners of a ship, destined on a particular voyage, engage separately with a number of persons, uncon- nected with each other, to convey their respective goods to the place of the ship's destination. A ship employed in this manner is usually called a general ship.' Tlie nature of this latter contract, and the rights and duties growing out of it, will form the subject of discussion in this chapter. 475. It should be observed that the owners are bound \)y every lawful contract made by the master relative to the usual employment of the ship. Tlie law gives the shipper of goods a twolbld remedy : 1, against the owners, and, 2, against tlie master ' Abbott on Ship]!., p. 15G. 2'J 450 THE LAW OF SHIPPING. porsoiially. The ship, too, is specifically bound, in accordance with the ancient and wise policy of the general maritime law: — "Xr hatcl est ohliye d, la marchandise, et la marcliandlse aii hatel."^ 47G. In the contract which we are now consider- ing, — that is, the contract for conveyance in a gene- ral ship, — the bill of lading is commonly the evi- dence of the contract. The cargo being put on board, the master executes two or more bills of lading. The shipper receives one of these for his own use, another goes to the consignee or correspondent, and the master retains the third, which is, in general, legal evidence of the specific cpiantity of merchan- dise shipped.^ 477. It is not essential to the validity of the contract that the bill of lading should have been signed by the master himself. It is equally bind- ing upon all parties, if signed by his authorized agent. And if the authority of the agent does not appear upon the bill of lading, he may be called as a witness to prove such authority.^ It must be ' ''The ship is bound to the merchanclise, and the merchandise to the ship." Cleiarc, Us. et Coustumcs de la Mer, p. 72. 2 Woolrych's Com. Law, 59. » Putnam v. Tillotson, 1.3 Mctcalf, 517. It was held in this case, that where goods are ordered to be sent to a distant pur- chaser, a delivery to a carrier appointed by the consignee vests the property in the purchaser. Vide, as to the same point, Stanton V. Eager, 16 Pick. 467. So, a delivery to a common carrier, in the usual course of business, when no carrier is named by the purchaser, is a good constructive delivery to vest the property in the vendee. Also, such carrier, who has executed a bill of lading. OF THE CONVEYANCE OF GOODS, ETC. 451 understood that the simple fact of a person being the master of a vessel does not, i)er se, clothe him Avith the authority to bind the owner by signing a bill of lading for goods received on freight. But this authority he must have, to make the contract binding on the owners. He may have it, however, either by express delegation, or it may be implied from the usual employment of the vessel. The master of a vessel employed in the freighting busi- ness, who is in the habit of receiving goods for hire and signing bills of lading, has authority to bind the owner as much as if the authority were expressly given.' by himself or his authorized agent, becomes thereupon answerable to the consignee; and, in case of non-delivery, the action may be brought by the consignee. As to the first point, see Dutton v. Solomonsoii, 3 Bos. & Pul. 582, and, as to the last, Dawes v. Peck, 8 T. 11. 330. 1 Nichols V. De Wolf, 1 N. J. Rep. 277. '' The owner," said Greene, J., in giving the opinion of the Court in this case, " can- not reap the benefit of the captain's contracts without likewise being liable for the losses, if the contracts are made within the scope of the captain's agency. But there are various kinds of voyages. A man may send his vessel to procure a cargo on his own account, and in such cases the master has no power to take freight ; or he may send his vessel to get freight, and then the very business is to procure goods on freight, and sign bills of lading, and the signature binds the owner. The vessel may be employed in ])oth ways. She may be sent to procure goods on account of the owner, and, if she be not fully laden on owner's account, to iill up with gootls upon freight. By such inridcntal contracts for freight tlie owner is bouml. Did the defendant's vessel sustain this twofold character? The (jiustinn in this case is, whether such an authority can be infeircd Ik mi (lie usual employment of the vessel. If the captain was in tlie hahit of taking goods on freight, and of signing bills of lading, an«e as having arisen by implication of law, the consignee ought not to iiKiintain his action." ' Stephenson v. Hart, 4 Bing. R. 470 ; Wilson v. Churchman, 4 Louis. R. 452; Duff v. Budd, 3 Brod. & Bing. 177. ^ Swain v. Shepherd, 1 Mood. & Rob. 223 ; Fragano v. Long, 4 B. & C. 219. In this case, Fragano, the plaintiff, scut an order to Mason & Sons, at Birmingham (he residing at Naples), for certain good.s, "to be despatched on insurance being effected. Terms to be three months' credit from the time of arrival." But for that order the goods never would have left Mason's warehouse, and when sent were marked with Fragano's initials. The risk of the good.s was thrown upon Fragano the moment (he transit began. At Liverpool, Stokes it Co., Mason's shipping agents, sliipped the goods and took a receipt. On (he passage, the goods, through the negligence of the n)astcr, were damaged. It was held (hat the ac- tion was rightly brought in the name of Fragano, in wlmni vested the property of the goods the moment (hey left Mason's warehouse. See also Stanton v. Eager, IG Pick. 407. 464 THE LAW OF SHIPPING. 488. If the carrier expressly contracts to be liable to the consignor in consideration of the carriage, in that case the action may be brought in the name of the consignor, not on the ground of any right of property that he may retain in the goods, but on the ground of the agreement.' 480. The shipper has the sole authority, in the first instance, to direct the consignment, and if he fills up the bill of lading with the name of a parti- cular consignee or bearer, with a view to some negotiation of his own, which, however, he does not accomplish, and does not deliver the bill of lading, the insertion of such name gives the consignee no authority over or interest in it.^ If the name is left blank, the property passes by a delivery of the bills of lading by the shipper.^ And this is sufficient to enable the holder to receive and hold the property against any person except a prior endorsee without notice. •« 490. Where the shipper of goods draws a bill of exchange upon the credit of the consignment, and, as collateral security, delivers to the holder the bill of lading, by which the goods are to be delivered to the consignee or bearer, and the consignee refuses to ac- ' Moore v. Wilson, 1 T. R. 659, vide Stanton v. Eager, 16 Pick. 46, as to the effect of an order, and goods shipped in pursuance of it. = Allen V. Williams, 12 Pick. 297 ; Hibbcrt v. Carter, 2 D. & E. 71; Lickbarrow v. Mason, 5 T. E. 367; Ilaille v. Smith, 1 B. & P. 568 ; Buffington v. Curtis, 15 Mass. 528. 3 Low V. De Wolf, 8 Pick. R. 101. * Nathan v. Giles, 5 Taunt. 558 ; Allen v. Williams, 12 Pick. 297. OF THE CONVEYANCE OF GOODS, ETC. 465 cept the draft, but afterwards obtains the goods from the master of the vessel and sells them, it is held, that upon the refusal to accept the draft, the holder becomes entitled to the possession of the goods, and may maintain an action against the consignee for the proceeds of the sale/ 491. In the case of Allen v. Williams, where this point was settled, the question was presented to the Court, whether the consignee did not make himself liable to pay the draft, from having received the consignment, that being the fund from which it was to have been met. It was contended that when a consignee is advised of a provisional consignment, and, at the same time, of a bill of exchange, drawn expressly upon the credit of such consignment, and the bill of ladini;; and the draft are tendered together, if the consignee will accept the consignment at all, he does ipso facto accept the draft, and may be charged in an action as acceptor. On the other hand, it was said, that wdien the drawee not only declines accepting the draft, but in terms refuses to do so, and gets possession of the property shipped, not by means of the bills of lading, held hy the holder of the draft, but by some other means, it would bo pressing the doctrine of constructive acceptance too far, to charge such consignee as acceptor. The Court declined giving an opinion upon the point, it not being necessary to a decision of the cause, l)ut ob- served that such a (jucstion might well depend upon a careful discrimination of the circumstances of each particular case. > Nalhau v. Giles, 5 Taunt. 558; Allou v. Williaiiiy, 12 Pick. 297. '80 4G6 THE LAW OF snirpiNG. 402, The general principle deduciblc from the cases, although they are not in all respects recon- cilable, is that actions against ship-owners, as carriers, in their implied contract, and actions for the loss or injury of the goods intrusted to them, must be brought by a person who has some property in the goods. The consignee will be deemed to have such a pro- perty, unless the contrary appear. To enable a person to maintain an action of trover for goods, or for not delivering goods to him, he must also have a right of possession. In the case of an express con- tract, evidenced by a bill of lading, the action may be brought by the shipper with whom the master contracted, or by the owner of the goods, whose agent the shipper was, or, in some cases, by the person to whom, by the terms of the bill of lading, the master undertook to deliver them.^ ' Abbott on Shipp., 414. See, also, the recent case of Grove V. Brien, 8 How. R. 429. For cases where, by the terms of deal- ing between the consignor and consignee, the property in the goods vested in the latter at the time of shipment, and, therefore, determined the question as to who should bring an action against the ship-owner for the loss or injury of the goods, see Haille v. Smith, 1 B. & P. 5G3; Cox v. Harden, 4 East, 11. 211; Branett V. Bowlby, 2 B. & Ad. 932 ; Zachrisson v. Akman, 2 Sandf. S. C. 11. 08; Walley v. Montgomery, 3 East's R. 585. In this latter case, the consignor advised the consignee, by letter, that he had chartered a certain ship on his account, and inclosed him an invoice of the goods laden on board, which were therein expressed to be for account and risk of the consignee, and also a bill of lading in the usual form, expressing the delivery to be made to order, &c., he paying freight for the said goods according to charter-party; and the letter of advice also informed the con- signee that the consignor had drawn bills on him at three months for the value of the cargo. It was held that the invoice and bill OF THE CONVEYANCE OF GOODS, ETC. 467 493. "Warehousemen and forwardiiig-merchants are responsible only for want of good faith, and reasonable or ordinary diligence; but one of the first duties of a consignee for transmission is to obey the instructions of the consignor, either express or fairly implied. AYlien they undertake to vary from the instructions, proceeding from whatever motive it may, and a loss is occasioned thereby, they are clearly liable to the owner of the goods/ 494. Hence, when the consignor and owner de- livers goods to a forwarding-merchant, directed to "J. F.," and, instead of forwarding them in the manner directed, he inserts, without any authority, the name of a consignee in the bill of lading, which was not marked on the goods, and, in consequence, the goods are seized and sold by a sheriff as the pro- perty of the person whose name is thus inserted, the forwarder is liable to the real owner.^ of lading sent to the consignee, and the delivery of the goods to the captain, vested the property in the consignee, subject only to be divested by the consignor's right to stop the goods in transitu, in case of the insolvency of the other. And the consignor's agent liaving obtained possession of the cargo under another bill of lading, and having refused to deliver it up unless the consignee would make immediate payment, which he declined doing, but offered his acceptance at three months in the manner before stipu- lated, it was held that the consignee might maiiitaiu trover against such agent, without having tendered payment of the freight cither to him or the captain, the defendant having possessed himself of the goods wrongfully. Scf3 also Ogle v. Atkinson, T) Taunt. 759, Mitdiel v. Kdo, :} JVrry k, Dav. 01.'{, as to conditional cnnsign- monts. Also, IJarrow v. Coles, 3 Camp. 92; "Wilmsliurst V. IJowkcr, 5 liing. N. C 5. ' Forsytbc v. Walker, 9 Barr, 148, Rogers, J. ' Ibid. 4GS THE LAW OF SIIirPING. 495. A bill of lading, like other contracts, is to be construed according to the intention of the parties. Usage of trade is always presumed to be within the knowledge of the parties, and the bill of lading is supposed to be made Avitli reference to it. Hence, where the bill of lading expresses that goods are to be carried from one port to another, a direct voyage is primd facie intended ; but this presumption may be controlled by a usage to stop at intermediate ports, or by personal knowledge, on the part of the shipper, that such a course is to be pursued.^ 496. If, after the signing of a bill of lading, war ensues between the country to which the ship belongs and the country to Avhich, with the cargo, she is destined, the contract is dissolved. The bill of lading is of no legal effect after the declaration of war, nor can any action be maintained upon it. In such a case, it is always a sufficient answer that it has become impossible to perform the contract with- out violating the laws of the country.^ 497. The voyage performed, it remains for the master to make a delivery of the cargo. " In con- sidering to whom he will be safe in making and in refusing delivery, it may be useful," observes Mr. Abbott, " to remind the master that he can rarely incur any responsil)ility by adhering strictly to his engagement with the shipper. In case of conflicting claims, it may be prudent to require indemnity ; but » Lowry V. Russel, 8 Pick. 300. ^ Brown v. Delano, 12 Mass. R. 370. OF THE CONVEYANCE OF GOODS, ETC. 4G9 if he make delivery to the person who first claims the goods under a bill of lading regularly assigned to him, the consignor will seldom have much color to complain that orders drawn up by himself have been too strictly observed."^ 498. If several tenants in common make a ship- ment of goods, and consign them to the master, the consignment is to be considered as several, not- withstanding the instructions and bill of lading are to him as in a joint concern. He has no authority, therefore, on the return voyage, to consign the whole exclusively to two of the owners, excluding the others. Being himself the general consignee, he ought, upon the homeward voyage, to make the consignment general to himself for the use of the owners, or to them directly, according to their respective shares. But if, instead of doing this, he makes the consignment to one of the tenants in common, the latter has no lien on it for any sepa- rate and distinct demands against the other tenants in common, nor against any firm of which they may be partners with a third person, nor can he set off such debts, in a suit Ijrought against him by the other tenants, or Ijy their assignee, in equity, to account for their share of tlie property.^ 49'J. If go(j(ls are put on board a vessel without the knowledge of" tin; nuister, lie may put tlicm ' Abb. on Shipp., p. 414, 415. " Jackson v. Kobinsoii, '.i Mason's II. l']8. In general, the doctrine of ect-oS' is the same in equity as at law. 470 THE LAW OF SHIPPING. ashore, for there is no implied contract of affreight- ment. If he retains them on ))oard, and carries them on to the port of destination, he is entitled to freight for their carriage, and would be answerable, I presume, as well as the ship-owner, whose agent he is, for the want of care and diligence, with respect to them. For the undertaking to carry them is vo- luntar}-, and the law would therefore hold him to the same degree of accountability and responsibility, as if he undertook their carriage by express contract. If, however, the goods are not discovered until the ship sails, the better opinion is that the master is not to leave them at an intermediate port without necessity, but to carry them to the port of destina- tion. 500. But the ship-owner, in such a case, is not re- sponsible for any loss or injury that may happen to them on the voyage, nor is he responsible when the master takes goods on board clandestinely, beyond the scope of his authority. When goods are brought into the ship without the master's knowledge, and are not discovered until after the ship sails, the question arises as to the nature and degree of his responsibility. Being made a bailee without his knowledge and against his will, the law will not, I apprehend, hold him accountable to all the rigid conditions and responsibilities attached to that cha- racter when voluntarily assumed. He would be bound to ordinary care and diligence, and answer- able for gross negligence or wanton injury. And that upon the most obvious principles of law and OF THE CONVEYANCE OF GOODS, ETC. 471 justice should be the measure and limit of his re- sponsibility.^ 501. The words, " contents unknown," annexed to a bill of lading, imply that the master only meant to acknowledge the shipment in good order of the goods, as to their external condition, or rather as to the external condition of the cases, &c., in which they are put up, excluding any implication as to their quantity or quality, or as to their condition at the time they were received on board, or as to whether properly packed or not in the boxes.^ » Bonncy v. The Huntress, Davies' R. 82 ; "Walter v. Brewer, 11 Mass. 09 ; Ord. de la Marine, art. 7 ; Code dc Commerce, No. 202. ' Clark V. Barnwell, 12 How. U. S. R. 272 ; Abbott on Shipp. 41G. <'If there is any dispute," says Mr. Abbott, ''about the quantity or condition of the goods, or if the contents of casks or bales arc unknown, the words of the bill of lading should be varied accordingly." 472 CHAPTER VI. OF THE EARNING AND PAYMENT OF FREIGHT. 502. Freight is the hire which is earned by the transportation of goods. This is the original and elementary signification of the word. It is due for the service which is rendered in transporting them from a place where they are supposed to be worth less, to a place where they are worth more. This service has given to the merchandise a new value which it had not before ; as much so as is given by a tailor to a piece of cloth, which he had made into a coat, or by any other mechanic, when he has, in the way of his trade, changed the form of a thing, and converted it into what is technically called in the civil law, a new species. Though here has been no change in the form of the thing, yet there has been a service performed by which it has received a new and additional value, as certain and as distinguishable from its former value as that which is given by a mechanic who converts one species into another. It is a general principle of law, extending to a great variety of cases, that a person who has, by his own labor, thus added a new value to a specific article, has a lien on the article for the value of his service. It is a right consonant to all OF EARNING AND PAYMENT OF FREIGHT. 473 ideas of natural equity, and is highly favored by the law/ 503. Freight, in its general signification, is applied to all rewards, hire, or compensation paid for the nse of ships, and the same rules are applicable to pas- sage-money as are established on the subject of freight. In the legal sense of the term, the compen- sation paid for the transportation of passengers is freight, the same as the compensation paid for the transportation of goods.^ Ships engaged in carrying passengers on the high seas for hire, stand, as we have observed in a previous chapter, on the same footing of responsibihty, according to the maritime law, as those engaged in carrying merchandise, the passage-money being equivalent to the freiglit. It follows, therefore, that on a breach of a passenger contract, and damage resulting, the ship as well as the owner is bound to respond. All the reasons in the maritime law for charging the ship in case of the breach of a contract of affreightment of goods and merchandise, apply with equal force in the case of the breach of a passenger contract, and the one is as much the appropriate subject of Admiralty jurisdic- tion {IS the other.^ ' Poland V. The Freight and Cargo oC ihr i;ii,i; Sparlaii, Ware's R. i;54, l.'iS; 2 Kent's Com. 490. » Giles V. The Cynthia, 1 Peters' Adm. R. 200; The Brig T>a- vinia, Ihid. 120; M'CuMooIi'h Com. Diet. ; Pothier, Traite dc Chartc- partic, n. 1; Wafson v. l)u}kinclc, '.', John. K. .'!'{'); (ircggs v. Austin, .'5 Piek. 20. ^Thc Aherfoylc, Rhitehford'H Ad. 11. ."CO; TIk' \'.f the supplies, 478 THE LAT7 OF SHIPPING. 507, The contract for tlic carriage of goods being an entire one, it follows that the shipper is not bound to pa}^ freight, unless there is a performance on the part of the carrier. The goods must be delivered at the port of destination, except in the cases hereafter specified, or no freight is earned. For a partial con- veyance is not within the terms or intent of the con- tract. And it is no answer to a denial of freight that the whole voyage was defeated by an over- whelming calamity, common to the whole adventure, which prevented a delivery of the goods, and ren- dered a sale of them necessary at an intermediate port. On the other hand, the shippers are bound to pay the full freight for the voyage, if the cargo is carried to the port of destination, and specifically remains, notwithstanding at its arrival it is, by rea- son of sea damage, utterly ruined and worthless. And after the shipment of the cargo on the voyage, the shippers have no right to demand it at any inter- mediate port, short of the port of destination, with- out full payment of the freight for the voyage, whether the cargo arrive there in a damaged or undamaged state.' or the making of the repairs. Hence, if the owner should refuse to permit the repairs for which he had contracted, the ship would not be liable. Short of actual repairs or supplies, the parties must look to the master or owner for any damages in case of a breach of contract, as no lien attaches to the vessel within the terms of the rule. ' Jordan v. Warren Ins. Co., 1 Story's R. 342, 352 ; Miston v. Lord, Blatchford's R. 355 ; The Ship Nathaniel Hooper, 3 Sum- ner's R. 554; Caze v. The Baltimore Ins. Co., 7 Cranch. R. 358, 362 ; Halwerson v. Cole, 1 Spears' R. 323 ; Hunter v. Princeps, 10 East's R. 378 ; Hunter v. The Union Ins. Co., 1 Wash. C. C R. 530. OF EARNING AND PAYMENT OF FREIGHT. 479 508. If, however, the voyage is broken up in con- sequence of the goods being in such a state as would endanger the safety of the ship and the Hves of the crew, if carried, no freight is due ; because, indepen- dently of any duty that the master owes to the cargo, the interest of his owners dictates the break- ing up of the voyage; and the shipper having derived no benefit under his contract, there is no principle, legal or equitable, that would subject him to any part of the freight. And if the cargo is so much damaged that to proceed with the voyage would render it worthless, it is the duty of the master to land and sell it at the port of necessity, in the absence of instructions from the shipper, even though it may be in a condition to be carried in .specie to the port of destination, and there landed. In cases of necessity happening during the voyage, tlie master is, by law, created the agent for the benefit of all concerned ; and his acts done under such circumstances, in the exercise of a sound dis- cretion, are binding upon all parties in interest. 509. And in such a case the carrier is entitled, it seems, to no freight. In the case of the Ann D. Richardson,' it was held that the master having failed to deliver the cargo accordiug to the bill of lading, and there having been no waiver of per- formance, either express or implied, hy the shipper or his agent at the port of distress, the owner of the vessel was not entitled to freight, notwithstanding the damaged state of the cargo justified its sale hy the master at tlic jiort of distress; tliat tlic agency » Blatchford's II. 358, note. 480 THE LAW OF SHIPPING. of the master on behalf of the shipper at the port of distress, arising out of the necessities occasioned by the disaster, was limited to the sale of the cargo ; that no case had extended it farther, and that sound principles forbade any further interference "with the rights of the shipper. 510. In Halwerson v. Cole,^ the Court said that the only cases where the owner of the goods is bound to pay full freight without delivery are those in which the goods have been thrown overboard for the general benefit, or so used as to make the loss of them a subject of general average. " In such cases," ■ 1 Spear's (S. C.) R. 321. This was an action to recover the amount of forty-five dollars twenty-two cents, for freight, being the balance due for freight of twenty bales of hay, and one hun- dred and five bags of corn, &c., &c., shipped on board of the schooner United States, and to be delivered at Pilatlca, East Florida. It was proved at the trial that the twenty bales of hay and the one hundred and five bags of grain were shipped on board of the schooner United States, of which the plaintiff was captain, by Zealy & Wade, the agents of the defendant, on the 27th day of October, 1840 ; and that the amount of freight to be charged was sixty-six dollars twenty-five cents, at two dollars pei bale of hay, and twenty-five cents per bag of grain. The schooner, before arriving at Pilatka, put into St. Augustine, Florida, in distress, having received damage from a gale; and it was found, on examining her cargo, that the twenty bales of hay were damaged, and were ordered to be sold, for the benefit of the owners, by the surveyors of the port of St. Augustine, and that the net amount of the sale, after deducting the expenses attending it, amounted to thirty-five dollars, ciglity cents. The balance of the cargo, to wit, the one hundred and five bags of grain, were delivered at the port of destination. The defendant was also charged with the sum of fourteen dollars, twenty-seven cents, being his proportion of an account for general average. OF EARNING AND PAYMENT OF FREIGHT. 481 the Court observed, "the payment of the general average is a substitution for delivery, and subjects the owner to the payment. There are some cases where the owner is liable to pay partial freight, or pro rata intlneris ; but the obligation to pay this can arise only from an agreement to accept the goods at a place short of the place of destination. In the case of Hunter v. Princeps,^ the vessel had been cap- tured, recaptured, and carried into St. Kitt's, where she was wrecked, and the goods sold by order of the Court of Admiralty, and on the application of the cap- tain, but without orders. The sale was made for the benefit of all concerned, and the application on the part of the captain for the sale honafide. Yet it was held that the shipper was not bound to pay freight even pro rata intlneris, but was entitled to recover for his goods, without any deduction for freight. The only ground upon which the plaintifl"s case can be placed, with any appearance of plausibility, is, that in the condition in which the captain was placed, he was so far the agent of the shipper as to be authorized to determine on the expediency of selling the damaged goods, for the benefit of the owner. Now, it does not seem to me that this posi- tion can be maintained. There is no authority to sustain it. The master is the general agent for the ship-owners, and cases may arise in which his act might bind both the insured and insurer; but I have found no case where, on the question of freight, he is considered the agent of the shipper, in a matter of personal interest to himself. It would involve the abstirdify that one of two parties to a, contract « 10 East. II. 378. 31 482 THE LAW OF SIIIPriNG. was the agent of the other, to determine the expe- diency and necessity of dispensing with the perform- ance of his part of the agreement. But, besides this, the HabiUty of such an agency to abuse, and the strong temptation to abuse it, are sufficient reasons why no such principle should be estabhshed as a part of the law of the contract. Cases may arise, in which there may exist a necessity for disposing of a damaged cargo. If it be for the general benefit, it may be a subject of general average. But, in all other cases, the shipper has a right to insist on the delivery of the goods, as a condition precedent to the payment of freight. It is no answer to say the ship- owner acted bona fide, and the sale was for his benefit. He has commissioned no one to judge for him on that subject. He may prefer to have the goods in a damaged state. It is his right, and can- not be withheld from him without a forfeiture of the demand for freight." 511. It is not pretended, and there is no authority for subjecting the shipper to freight, where the port of distress and of acceptance of the cargo is the port of shipment, and where no part of the voyage has been performed.^ The right to freight does not commence until the ship has broken ground and begun the voyage ; and therefore no partial payment can be claimed for goods laden on board, if the ship is prevented, even without the fault of the master, from setting forth on the voyage.^ * Miston V. Lord, Blatcbford's R. 357 ; vide, also, Jordan v. Warren Ins. Co., 1 Story's 11. 352; Violett v. Stettinius, 5 Cranch, C C. R. 559 ; Scott v. Libby, 2 Jobn R. 336. ^ Curling V. Long, 1 Bos. & Pul. 634. OF EARNING AND PAYMENT OF FREIGHT. 483 512. There are exceptions to the general rule that no freight is due unless the goods are delivered at the port of destination. But they stand on spe- cial grounds. If it is shown that the non-arrival was occasioned by no defixult or inabihty of the carrier ship, but was occasioned by the defiiult or waiver of the merchant shipper, then, upon the ordinary principles of commercial law, full freight is due. In the former case, the merchant shipper cannot avail himself of his own default to escape the payment of freight ; in the latter case, he dis- penses with the entire fulfilment of the original con- tract for his own interest and purposes.^ 513. To perfect the right to freight, there must be not only a conveyance of the goods, but a de- livery of them, The conveyance and deUvery of the cargo is a condition precedent, and must be ful- filled. But if the delivery be prevented by the act of the shipper, or if he dispense with it, the master may then demand his whole freight. Or, if the voyage is performed, and the goods tendered to the consignee at the port of destination, l)ut an order of the government of the country prevents their being 'The Ship Nathaniel Hooper, 3 Sumner's R. 342; Bork v. Norton, 2 M'Lcan's Jl. 422; Ilalwcrson v. Colo, 1 Spear's 11. 323. Upon the Kuhject of tlii.s cIkiiiIi r, llio cases arising in the Courts of common law have hcon freely eited; and thoy furnish a safe guide in the investigation of questions of this nature. " In the interpretation of eoniincrcial contracts, " says Mr. Justice Story (3 Sumner's II. .Orj.^ij, "the decisions of these (Jourts (the Courts of common law) are entitled to the fullest consideration and weight ; for, in general, they guide, although they ^) ; (Jilldi v. Simpkin, t Carnp. 241 ; Tbo Urifj Lavinia, 1 I'etcrs' Adni. Ih'.c lUC; I'ilman V. Hooper, .'5 Siinim. H. AO, 0(5; .^lansfield v. Maitlaiid. I H. k A. 582; Cope v. Dodd, 1 Harris, II. .'5.".. 492 THE LAW OF SHIPPING. back. It is an ancient form of expression, that freight is earned " empty for full," when the disap- pointment is owing to the misfortune or neglect of the freighter, and no laches are imputable to the master or owner of the sliip.^ 523. It has been supposed that there is a distinc- tion between payment of freight and an advance of it. This distinction was urged in the case of Griggs V. Austin, and it was contended that the freight was recoverable back in the latter case, but not in the former. But this distinction is unsupported by either reason or authority. An advance of freight means the same thing as payment of freight beforehand or in advance ; whether the whole is paid, or a part, makes no difference. 524. If the cargo consists of living animals, whether men or cattle, and some of them should die during the voyage, without any fault or neglect of the persons belonging to the ship, and 1;here is no express agreement respecting the pajanent of freight, the general rule is that freight shall be paid for the dead as well as for the living. If, however, the agreement be to pay freight for the transportation of them, then no freidit is due for those that die on the voyage, because as to them the contract is not performed.^ * 1 Peters' Adm. R. 207, note ; Detouches v. Peck, 9 John. R. 210. » Abbott on Shipp., p. 498 ; "Walcott v. Eagle Ins. Co., 4 Pick. 434; Kent's Com. vol. .3, p. 225; Dig. 14, 2, 10; Roccus, n. 70, 77, 78. "When slaves or horses," says Roccus, "are carried OF EARNING AND PAYMENT OF FREIGHT. 493 525. Where goods are sent in a general ship, and the parties enter into no agreement respecting the freight, the amount will be determined by the usage on frcigbt, and any of tliem die on board, is freight payable for such as are dead ? Three cases are to be noticed. First, If the charter-party express that freight shall be paid for so many men or animals as shall be put on board, and any of them die before the ship reaches her destined port, freight is due, because the contract is fulfilled; and it is a principle of law, that a person who has en- gaged to do a particular act for a certain reward, is entitled to receive the reward, if he has been prevented from performing his engagement by any other means than his own fault.' The second case is where freight is promised for conveying men or animals to a certain place, and before the ship's arrival at that place any of them die, freight is not payable for those that arc dead, because the contract is not complete by which freight was promised for their actual conveyance. Freight is not due in this case, even though the loss happen without any fault on the part of the mari- ners J for it is a mutter of indifference how the accident occurred, since the payment of freight was conditional, to wit, if the slaves are conre^cd. The third case is, when it docs not appear precisely for what freight was to be paid ; whether for taking the animals into the ship, or for their actual conveyance. In this case, freight must be paid, if they are merely taken on board, although the animals or slaves should die before the ship reaches the destined port. The reason is, that it does not appear expressly what was intended ; and as no fault is shown on the part of the sailors, the contract remains entire, and the whole freight must be paid. A doubtful contract must be construed against the shipper." ' Mr. Ingcrsoll, the translator of Roccus, obsorvos as follows, upon this note : '♦Our author seems to forget the just and liberal principles which he expressed in Note XXIX. If the doctrine quoted from tlie civil law govern this case, it will apply equally well to that which ho states in the ensuing note, on which ho gives a contrary opinion. 'The word fretght implies ex »i tmniui, that somctliing is to ho carried from one place to an- other. Therefore, whenever freight is stipulatcil for, it must be \inder- Btood to be for actually carrying the things or the persons shijiped, and not for the mere permitting them to bo put on board.' " 494 THE LAW OF SHIPPING. of trade. If there be a special agreement, the rights of the parties will be governed by it, and no obliga- tion will be intended beyond those which are im- posed by it.^ 52G. Tn the case of a charter-party, where the charterer hires, either the whole or a specified part of the vessel, he is bound to pay the stipulated freisiht, whether he makes use of the whole or the part, as the case may be, or not. If the whole ves- sel is chartered to take a cargo, at certain specified rates per ton, if the freighter does not furnish a full cargo, the owner of the vessel is entitled to freight, not only for the cargo actually put on board, but also for what the vessel could have taken, had a full cargo been furnished.^ 527. Where, by the terms of the charter-party, the vessel is to go abroad for a cargo to a designated port, and upon her arrival there, no cargo is put on board in pursuance of the covenants of the charter- party, the merchant is liable to pay the whole freight which would have been earned if he had complied with his agreement. This is the doctrine of the miiritime law, and it is in accordance with the common law.^ 528. If it is a condition of the charter-party that the merchant shall put on board the specified cargo, or shall load the whole vessel, or a specified part of » Robertson v. Bethune, 3 John. R. 342. 2 Duffie V. Hayes, 15 John. R. 337. 3 Kleine v. Catara, 2 Gallis. R. 61. OF EARNING AND PAYMENT OF FREIGHT. 495 it, upon its arrival at a certain place, without any unreasonable delay, and the master of the vessel ap- plies for the cargo on a Sunday, and finding no per- son ready to deliver it, refuses to wait until Monday, but goes to sea without it, the ship-owner is not only not entitled to the stipulated freight, but, on the contrary, is bound to make compensation to the shipper for any loss sustained in consequence of the captain not waiting and taking on board the stipu- lated cargo. ^ > Dunbar v. Buck, 6 Munf. R. 34. In this case it appeared that a contract was made in November, 1807, between Robert Dunbar, of Falmouth, and David Henderson, of Fredericksburg, for the sliipping of one thousand bushels of corn by Dunbar, in a vessel belonging to David Henderson «fe Sou, to be carried to the Island of Antigua, and there sold on his behalf. He had the re- quisite quantity at home, and put on board at Fredericksburg six hundred and seventy-nine bushels ; but having purchased about five hundred bushels of a Mr. John Skinker, whose plantation, called the Hopyard, lay some miles lower down the Rappahannock, and Skinker having urgently pressed him to take it away, he pro- posed to Henderson that the vessel should take in the balance of the thousand bushels at the Hopyard, to which the latter agreed, but said he should expect the vessel would meet un unrousDuablc delay. To guard against this, Dunbar, on a Saturday afternoon, furnished the captain with bags to hold the corn, and expecting the vessel to drop down the river on Sunday, and receive it on Monday morning, sent his agent to have it measured and put on board at that time; but the captain, wlion he arrived at the Hop- yarJ, finding the overseer cither absent, or unwillinL; tn dclivi r tin' corn on the Lord's day, i)roceeded (in his voyage without it. ^Vlun the captain returned with the account of sales, a charge was made against Dunbar for dead freight on three hundred ami twenty-one bushels of corn, as so much not delivered by him a(;cording to con- tract, which charge he considered highly unroason;ible, and, on the contrary, contended that Henderson ought to make him compen- sation for the loss in the sale, occasioned by the fault of his agent, 496 THE LAW OF SHIPPING. 520. If a freighted ship becomes disabled during her voyage, the master has his option of two things: either to refit in a reasonable time, or to hire another ship to carry the goods ; and if he does this, or if the shipper will not consent to it, he will be entitled to the whole freight. It seems, from the general lan- guage of the authorities, that it is not imperative upon the master to tranship the cargo, unless there be another vessel in the same or a contiguous port, which he is able to hire. In a case of necessity, in- stant, unforeseen, and unprovided for, the character of agent and supercargo is forced upon the master, and in that capacity he is bound to act for the best interest of all concerned. If, in the execution of such a trust, he procures another vessel to take on the cargo, the freighter is bound to pay the extra freight, if any, for the renewed voyage in the vessel procured by the master, that is, the freight beyond what would have been earned under the original charter-party, if the necessity of hiring another ves- sel had not intervened.^ 530. Where the charter-party contains an express stipulation for the payment of freight from a certain day, for a certain number of months, and so much the captain, in not taking on board the full quantity. Henderson insisted on retaining the dead freight, and refused to make good the loss. The Supreme Court of Appeals held in conformity with the doctrine of the text. ' Emerigon, torn. i. 429-4.33 ; The Gratitudine, 3 Rob. Ad. R. 240 ; Miller v. Fletcher, 1 Doug. 231 ; Searle v. Scovell, 4 John. Ch. 221; Shipton v. Thornton, 9 Ad. k Ellis. 814; 3 Kent, 212; Mumford v. Com. Ins. Co., b John. R. 262. OF EARNING AND PAYMENT OF FREIGHT. 497 longer as the vessel sliall be employed by the char- terer?!, they are bound to pay freight during the time the vessel may be undergoing repairs, provided the ship was sufficient at the outset of the voj'age, and also that there was no improper delay in repairing her.^ 531. If a ship is chartered for a voyage at a cer- tain sum per month, for so long a time as the char- terers may continue her in their employ, they are bound to pay freight during the time of detention, occasioned by a hostile seizure, provided she is after- wards released, and performs her voyage. The doc- trine applicable to a case of this nature is, that the ship-owner must be paid for the whole time the ship is out of his possession in virtue of the contract, whether her voyage be long or short, and by what- ever accident she may be delayed ; provided the delav does not arise from his own defliult, and also that the voyage be finally completed.^ 532. When A. takes a charter-party of a vessel for a voyage to a certain port and back, at a certain sum per month, payable three days after her return, the owners furnishing officers, crew, and provisions, lie has a riglit to load the vessel himself, or allow others to do it, under express contract witli him. ]>iit neither tbc mnslcr nor owners liave a riglit to take goods on board without the charterer's per- mission, or on his belialf Xor liave they any right ' Ripley V. Scaifc, 5 Barn. & Ores. 1G7 ; Ilavclock v. Gcddcs, 10 Knst, f);')'). « Spafford V. Dodge, li xMass. II. GO. 82 498 THE LAW OF SHIPPING. to demand freight of the sub-shippers. They must look to the terms of the charter-party, and follow them.' 533. In a case where the owners, by charter- party, engaged their vessel to take a cargo to a designated port, at a specified freight, and it was agreed by the parties that twenty running days should be allowed for unloading and discharging the vessel after her arrival at the port of destina- tion, and that, for every additional day's detention, the shippers should pay fifty dollars demurrage, it was held that the stipulation of payment for demur- rage did not affect the contract for freight ; and if the consignee failed to unload and discharge the vessel within the lay days allowed, there being no impossibility of his doing so, and afterwards, wliile the vessel was detained on demurrage, the vessel and cargo were lost, without the default of the master or mariners, the ship-owners are entitled to recover the freight, as well as the demurrage.^ 534. If the master of a steamer, by false repre- sentations, induces an agent of a third person to ship merchandise on his boat at a certain freight, ' Perkins v. Hill, 2 Wood. & M. R. 158. Sec, also, Weston v. Minot, ?> Wood. & M. 43G, where it was held that freight con- tracted for in gross, for a voyage out and in, cannot be apportioned and recovered for a part of the cargo, or a part of the voyage, unless, from some expression in the contract, or nature of the voyage, or act of the hirer of the vessel, or measure of the govern- ment, an apportionment becomes feasible and just. ^ Brown v. Ilalston, Leigh's 11. 532 ; Lacombe v. Wain, -l Binney, 299. OF EARNING AND PAYMENT OF FREIGHT. 499 and the bill of lading states that the merchandise is taken " with the privilege of reshipping," and it is reshipped on another boat and brought to the port of destination, the owner of the merchandise cannot require its deliver}^ before paying the freight due to the boat on which it was so reshipped, the contract by the master of the second boat having been made in good faith, at a reasonable rate, with a party who held a possession apparently fair, under a bill of lading authorizing a reshipment. The bad faith of the master of the first boat does not operate to deprive the owners of the second boat of the remuneration due for their labor. Not being mere agents of the first carrier, they have a lien on the goods for their freight.^ * Walker v. Cassaway, 4 Louis. R. 19. But see Robinson v. Baker, 5 Cushing, 11. 137, where it was held, that a common carrier who innocently receives goods from a wrong-doer, without the consent of the owner, express or implied, has no lien upon them, for their carriage, against such owner. See also York v. Grenough, 2 Ld. Hay. 8G6; King v. Richards, Whart. 418; Fitch V. Newberry, 1 Doug. (Mich.) 1 ; Biukirk v. Turin, 2 Hall, 561 ; Saltus v. Everett, 20 Wend. 207, 275. There is a distinc- tion between the cases here cited and the doctrine of the text. In the former case, the carrier receives the goods from a wrong-doer : he receives them innocently, it is true, but he might have inquired into the title. Caveat emptor is the principle that applies to him. In the latter case, it is the carrier who is the wrong-doer. But the shipper might have informed himself of the truth of the carrier's representations. Third parties arc not to suffer from his want of prudence or diligence. In Evart v. The Brig Lowndes, 5 Louis. II. 420, it was held, that in an act inn against a vessel ami owners for the non-delivery of freight, the defendants may, under the general issue, introduce testimony to show that the identical goods claimed by the [ilaintiff were shipped by another person, who took a bill of lading for them. See, also, Dcvillcrs v. 500 TUE LA^Y OF SHIPPING. 535. Cases may occur where the question as to the liability of the carrier for the loss of the goods, or injury to them, may depend very much upon the question whether he was entitled to freight. Thus, when a steamboat is in the habit of charging freight for carrying remittances of money, if a package con- taining money is handed to the captain, without in- forming him of its contents, there being no charge for freight, the owners of the vessel are not liable for the money in case of its loss. The captain, in such a case, would be responsible merely as deposi- tary.^ 53G. It is universally conceded that the master of a carrier ship, on his arrival at the port of delivery, has a right to retain the goods until the freight is paid by the consignee. But when the right to detain is not insisted upon, and the goods are de- livered to the person authorized to receive them, without the payment of freight, the lien is gone, and the law will imply no agreement on the part of the person receiving them to pay the freight."^ Maritime liens differ essentially from liens recog- nised by the common law, and distinctively in this : that in cases where the lien by the common law is lost by parting with the possession of the thing, in those same cases, in the maritime law, it continues. But the maritime law, equally with the common, discountenances these secret encumbrances upon Schooner John Bell, G Louis. 544, as to liability of the carrier in cases of reshipincnt. * Mechanics' and Traders' Bank v. Gordon, 5 Louis. R. 604. "- Scaife v. Tobin, 3 B. & Adol. .523. OF EARNING AND PAYMENT OF FREIGHT. 501 property in all cases where no public policy is sub- served by sustaining them, and the rights of third parties would suffer from their continuance. Hence, where the master gives up the goods to the con- signee, without the payment of freight, he gives up, at the same time, his lien. It is different from the case of a material-man consenting to the departure of a ship upon which he has a lien. It is for the benefit of commerce that the vessel should not be detained; and therefore the maritime law wisely provides that the lien shall continue, notwithstanding she goes upon her vo3'age. But no public policy is subserved by permitting the lien of the master upon the goods for his freight to continue after he has parted with the possession of them. On the con- trary, serious injury would be likely to ensue to the rights of third parties, if it were sustained. 537. The right to retain the cargo for the freight has grown out of the usage of trade, and does not exist, nor can it be enforced, when the parties have expressly regulated the time and manner of paying freight by stipulations in a charter-party, and espe- cially if tlic cargo is deliverable before the arrival of the periods of payment. Such an agreement, if inconsistent willi the continuance of the lien, \vill be construed as an express renunciation of the right to insist oil freight before (lie cargo is (IcllNorcd.' ' Chandler v. Bclrlcn, 18 John. K. IfiT; Thnso v. "Wcstmnrc, 5 M. & Sohv. iHOj Crawshay v. Iloriifray, 4 Barn, k Aid. r)0 ; Gracio v. Palmer, 8 Wheat. 11. (»()."); lluggle.s v. IJiicknor, I Paine, C. C. 11. 35H ; The Schooner Volunteer, 1 Sumner's R. 550; Certain Logs of Mahogany, 2 Sumner, 5S9; The Schooner 502 THE LAW OF siiirriNG. The party must resort to his action.' If, however, he has been induced to deUver the goods to the consignee by a false and fraudulent promise of the latter that he would pay freight as soon as they were received, the delivery will not amount to a waiver of the lien, but the carrier may disaffirm, and sue the consignee in replevin.^ 538. If the master notifies the person who re- ceives the goods that he must take them, subject to the charge for freight, the person so receiving them becomes liable therefor. Or if, by the terms of the bill of lading, the goods are to be delivered to the consignee, or to his order, on payment of freight, the party receiving them, whether the consignee or an endorsee, to whom the bill of lading has been transferred by the consignee, makes himself respon- sible for the payment of freight. The law implies a promise on his part to pay the freight, such being the terms on which, by the bill of lading, the goods were to be delivered. The person who accepts and receives the property thereby makes himself a party to the contract. When the consignment, therefore, is to A., or his order, and A. endorses the bill of lading, and orders a delivery to B., to whom accord- ingly the goods are delivered, B. becomes bound to pay the freight, and A. is discharged.^ Cassius, 2 Story's R. 81 ; Clarkson v. Edes, 4 Cow. 470 ; Pick- man V. Woods, G Pick. 248 ; Pinney v. Wells, 10 Conn. 104. ' Shatzell v. Hart, 2 A. K. Marsh. 191. 2 Bigelow V. Hcaton, 6 Hill (N. Y.), 43. 3 Merian v. Funck, 4 Denio, 110; Grant v. Stone, 1 N. J. R. 292; Trask v. Duval, 4 Wash. C C. R. 184; Cock v. Taylor, 13 OF EARNING AND PAYMENT OF FRl'.IGIIT. 503 539. But whilst the hability of the consignee is admitted where he receives goods under a bill of lading such as we have here described, it does not follow that the consignor is exempt. There is no shifting of liability. The contract of the consignor and consignee is not considered to be inconsistent with each other ; each is an original contract upon a sufficient consideration.' In commercial transac- tions, nothing is more common than that there should be several persons, all of whom are liable for the same thing. And in this country the cases all proceed upon the principle that the clause in the bill of lading, " He" (the consignee) " paying freight," is introduced for the benefit of the carrier, not of the consignor.- East, 399; Spcnco v. White, 1 Iredell's R. 23G; Ilayward v. Middloton, 3 M'Cord, 121 ; Layng v. Stewart, 1 Watts k Serg. 222; lloberts v. Holt, 2 Show. K. 432; Douglass v. Kemble, 3 Bing. 383 ; Brouncker v. Scott, 4 Taunt. 11. 1. ' Grant v. Wood, 1 N. J. 292; Barker v. Havens, 17 John. R. 234; Domett V. Beckford, 5 B. & Adol. 521. But see Van Zeller v. Sanders, 2 Gale & Dav. 244. a In the case of Moorsoin v. Kymer, 2 Man. & S. 318, Mr. Justice Bailey supposed that the consignee is liable only where the consignor is not. "Where the bill of lading," he observes, "expresses that the goods are to be delivered to the consignee, or his assigns, he or they paying freight for the same, if the captain deliver the goods to the assigns without procuring the freight for then), I am not prepared to say that he can resort back to A. B., the shipper, where A. H. has never expressly stipulated tliat he will pay th(! freight." In the case of Drew v. Bird, 1 Moody & M. 15(5, Lord Tcntordcn ruled, at Nisi I'rius, in accordance with the opinion of Justice Bailey. In that case there was no charter- party. The bills of lading stated the goods to be " shipped by A. Bird" (the defendant), "by the ship Meih.ra, for London, to be delivered to E. Grinitlhs, for The Imperial Distillery, or to his 504 THE LAW OF SIIirPING. 510. ]^)ut if the goods iire not owned by the con- signor, and lire not shipped on his acconnt, and for his benefit, in that case, it was said in Barker v. Havens,* the carrier is not entitled to call on him for freight. And, on the other hand, if the consignee is only the agent of the consignor, and is known to the master to be acting in that capacity, he does not make himself debtor for the freight by accepting the consignment, or entering the goods in his own name at the custom-house.^ 541. The master has a lien upon the freight for all the advances which he may make on account of the ship, and can intercept it, when earned, to reim- assigns, he or they paying freight for the same." The goods were conveyed to London, and delivered to Griffiths without receiving freight. Afterwards, and after several ineffectual applications to Griffiths and to the Company for payment, the plaintiffs applied to the defendant by letter, and received an answer that ''if Griffiths did not pay, he, the defendant, would." On this state of facts, Lord Tenterden, in summing up to the jury, said : " Independently of the letter of the defendant, I think there is nothing to entitle the plaintiffs to a verdict. The bill of lading directs them to deliver to Griffiths, he paying freight ; they deliver them without receiving it. Tlunj cannot therehi/ maJce Jiird liable to them, if he were not so oriyinalli/ ; and on the face of the bills of lading nothinrj appears to charge him." But the authority of Drew v. Bird was overruled by the subsequent case of Domett v. Beckford, 2 Nev. k M. 374, where it was held that the consignor is liable for freight, although by the bill of lading the goods are to be delivered to the consignee, he paying freight for the same, and they are delivered to the consignee without payment being required. See also Shep- herd v. De Bernalcs, 13 I'^ust, 5G5, and also the observations of Mr. Sergeant Shce, in Abbott on Shipping, p. 511, note. ' 17 John. II. 234; 3 Kent, 221, note. 2 Ward V. Felton, 1 East, 507. OF EARNING AXD PAYMENT OF FREIGHT. 505 burse himself.^ Whether he has such lien for his wages, is a controverted point in our jurisprudence. Whenever the question has been presented for judg- ment in the Courts of Connnon Law, it has been ruled that such lien does not exist.^ 542. But it was held by Judge Ware, in the case of Drinkwater v. The Freight and Cargo of the Brig Spartan/ that the master's lien for his wages rests on as good ground as for his liabilities or disburse- ments. " The money," he said, " is as much due to him in the one case as the other, and the credit has in each grown out of the same service, a service which has contributed to create the fund against which his claim is made. I can see no sufficient reason for ' The Ship Packet, 3 Mason's R. 255 ; The Brig Spartan, Ware's R. IGO; Hodgson v. Ikitts, 3 Cranch, 140; Lane v. Pcnniman, 4 Mass. R. 91. See ante, Chap. 13. 'Lewis V. Hancock, 11 ^lass. 72; Ingersoll v. Van liokkclin, 7 Cowen, G70; S. C, 5 Wend. 314. It was said in the kttcr case, that the agreement for wages is a personal contract with the owner, and that there was no substantial grounds of e(iuity for giving liiin a preference over other creditors. Any one, said tlie Chancellor, in giving his npininn, who is sufTu-icntly iiitolliircnt and discreet to discharge the responsible duties of master, must be perfectly competent to provide for his own wages in the contract. On the oIIkt hand, tiie reasons which render it proper for the mas- ter to hypothecate the ship and freight to procure the necessary supplies occasioned by goiuc unforeseen disaster in a iurcign i)iiit, and whicli, by the maritime law, give a lien upon IidiIi, tn persons who have furni-xhed those supplies, or whose property was taken for the purpose, in tlic nature of a forced loan, seem to be e(|ually applicable to the case of the master where the rcfpiisite supplies have been furnished from his own properly, or on the pleilge of his individual credit. ' Ware's R. 103. 50G THE LAW OF SHIPPING. making a distinction between them. His wages are as mucli a charge on the earnings of the ship as those of the seamen, or as the advances which he makes for incidental expenses. What remains, after these are discharged, constitute tlie net freight of the owners. Besides, if the reason given for exchiding the master from Admiralty process against the ship, that he has a lien on the ship, means anything, it means that he is a privileged creditor against the freight. A lien ex vi termini imports a privilege. If it is not this, it is nothing. Upon the whole, find- ing that he has a lien on the freight for his disburse- ments, and seeing no reason in law or justice for making a distinction between this claim and that for wages, I do not feel the authority for introducing a distinction asrainst him which I do not fnid esta- blished." If this doctrine is founded upon the cor- rect principle, it follows that the master has a right, as against his owners, to receive the freight, and that payment of it to the owners, on their demand, will not be a discharge against a claim by the master. 543. In a case where a consignee, known as such to the master, sells the goods before they are landed, and the buyer receives them, and enters them in his own name at the custom-house, the buyer becomes liable for the freight. Although there be no original priority of contract between the purchasers from consignees and the owner, yet the taking of goods by purchasers under a bill of lading, is evidence of a new agreement by them, as the ultimate appointees of the shippers, to pay the freight for the carriage of the goods, the delivery being stipulated with the OF EARXIXG AND PAYMENT OF FREIGHT. 507 shippers to be made to the consignees named in the bill of lading or their assigns, he or they paying the freio'ht for the sanie.^ It seems obvious that the assignee of a bill of lading, avIio receives the property mentioned in it, is liable to the owner of the ship for the freight. 544. If, however, the assignor is bound by charter- party to pay it, or if the person who is sought to be charged with the freight promised to pay it, not ab- solutely as owner, but conditionallj', if the assignor did not, and as surety for him, and received the goods not as the assignee of the bills of lading, but as agent and surety of the supposed owner, in neither of these cases does the law raise an implied promise, on the part of the receiver of the goods, to pay the freight.^ But even here if the master should claim freight of the receiver of the goods, Ijefore they were delivered, and deliver them sul)ject to the charge, there would arise an auxiliary original con- tract between the receiver and the ship-owner for the freight. And more especially would this be the case, if the master refused to deliver the goods with- out an express promise from the consignee or as- signee of the bill of lading to pay the freight.^ 510. Wlien the goods jjccome so much deteriorated during the voyage as not to he worth tlie IVcight, it is an important question whether the merchant is ' AMmtt on Phipp., f)!! ; Cock v. Taylor, 1.3 East, '.IW. Soc also (;f)lliii.s V. rnioii Trans. Co., 10 Watt.s, .'58 I. « Mnorsom v. Kyiiicr, li .M. tt S. JJOn ; Tn.slc v. Duvall, 1 Wm^Ii. C. C. K. ISl. ' Abbott on Sliijip., \>. ;')]:;, nulc by the Kiiglish cditcr. 508 THE LAW OF SHIPPING. bound to receive them, or is at liberty to abandon them to tlie master in discharu'o of IVeinht. The l)oint has been directly adjudicated in this country. It arose in the case of Griswold v. The New York Ins. Co.,' and it was held that the owner had no right to abandon the deteriorated goods in discharge of the freight. The consideration for the freight is the carriage of the article shipped on board, and the state or condition of the article at the end of the voyage has nothing to do with the obligation of the contract. It requires a special agreement to limit the remedy of the carrier for his lien to the goods conveyed. It cannot be deduced from the nature of the undertaking. The ship-owner performs his en- gagement when he carries and delivers the goods. The condition which was to precede payment is then fulfdled. The right to payment then becomes abso- lute, and whether we consider the spirit of this par- ticular contract, or compare it with the common law doctrine of carrying for hire, no principle can be discovered which makes the carrier an insurer of the goods as to their soundness, any more than he is of the price in the market to which they arc carried. If he has conducted himself with fidelity and vigi- lance in the course of the voyage, he has no concern witli the diminution of their value. It may impair the remedy which his lien afforded, but it cannot affect his personal demand against the shipper. If the deterioration has arisen from the negligence, carelessness, or improper conduct of the master or crew, the damage will be deducted from the freight.^ ' 3 Johns. R. 321 ; 1 John. R. 205. - Edwards v. Todd, 1 Scuinmon's R. 408; Leech v. Baldwin, .5 OF EAKNIXG AND PAYMENT OF FKEIGHT. 509 54 G. But if the deterioration has arisen from an intrinsic principle of decay naturally inherent in the goods themselves, whether active in every situation, or only in the confinement and closeness of a ship, the merchant must bear the loss as well as pay the freight.' No freight is due for goods which perish during the course of the voyage from perils of the sea. This is the doctrine of the maritime law, and the decision of the Court in the case of Frith v. Barker is in conformity with it. 547. In that case it appeared that fifty hogsheads of sugar were shipped on freight. They were pro- Watts, R. 446 ; IJumplirey v. Reed, G Whart. R. 435. In Glover V. Dufour, G Louis. R. 400, it was held, that where casks of wine had been so badly stowed, that in a gale of wind of no great vio- lence, they were turned with the bungs down, so as to cause loak- aire throuizh the vent-holes left fur the fermentation of the wine, the vessel was not entitled to freight. In the case of Knox v. The Ninetta, Crabbe's R. 534, where the goods were accepted by the consignee, and in a damaged condition, it was contended that the carrier was thereby discharged from liability. " This, I think," observed Randall, J., " is confdunding the liability of the party to pay freight with the liability of the vessel for damage. It is true, that if a con.signce accepts goods which arrive in a damaged state be in bound to pay freight, and in l-iiigland he could not plead the damage by way of set-off, but was put to his separate act inn to re- cover it. Ilnw far this circuity of action wouM be ( iicnuraLicd in this country it i.s unnecessary now in (lilcrminc, as this is a IiIh I for the very damage Hustained, but this disposes of one of tlie points made by the proctor for the libellant: that the freight was forfuitcd by the conduct of the master. I do not think sn. Tiie liliellant seeks to recover what he would liave obtained had (lie wheat been delivered in a sound state, and must therefore pay what lie would have been nbligcd to pay had it been so delivered." ' Abbott on Shipp., 517. « 2 John. U. 327. 510 THE LAW OF SHIPPING. perly stowcil, but during the course of the voyage the ship leaked, owing to tempestuous weather, by means of which the sugar was washed out, and upon the arrival of the vessel at the port of destination, the hogsheads were empty, and some of them fell to pieces. It was held that no freight was due. The sugar was as effectually destroyed as if it had at once been swept into the sea, and gone to the Ijot- tom. Bringing into port the empty hogsheads was not bringing the hogsheads of sugar, which the car- rier had undertaken to do.^ The authorities all concur upon the point that no freight is due for casks leaked out by perils of the sea, as the subject- matter of the contract no longer exists. But, if the commodity is lost by other causes than the perils of the sea, such as internal decay, leakage, evaporation, and the like, the freight is due nevertheless.^ 548. In a case where the master has been under the necessity of selling part of the cargo to defray the expenses of the ship in a foreign port, the owners of the cargo, if they have been the authors of the delay by 'which the expenses were occasioned, are bound to pay full freight upon all the goods. This doctrine proceeds entirely upon the assumption that the owner of the cargo is i)i delicto, and that the sale resulted from his fault.^ If a part of the cargo is sold, from necessity, to obtain provisions or repairs, in that case, inasmuch as the owners are bound to pay to the merchant the price which the goods ' See also Pothier, Charte-Partie, No. 60. 2 2 John. K. 327. 3 The Angerona, 1 Dod. Adm. R. 382. OF EAKXIXG AND PAYMENT OF FREIGHT. 511 Avoiild have brought at the port of destination, they are justly entitled to charge him with the freight that would have been due, had the goods been con- veyed thither. So, too, if part of the cargo is thrown overboard for the necessary preservation of the ship and the remainder of the goods, and by that means the ship is preserved, and performs the voyage, the value of the part sacrificed is to be answered to the merchant by way of general ave- rage, and the value of the freight thereof to the owner. ^ 549. If the goods are captured on the voyage, then recaptured, and restored upon payment of salvage, freight is to be paid in proportion to the voyage performed and the property saved, after deducting the salvage. The salvage is a loss to which, by law, vessel, freight, and cargo, are liable to contribute, and therefore diminishes freight pro tanto.^ 550. Where the ship is chartered for a specific sura, for the voyage, the contract, as before ob- served, is an entire one; and the general rule is, that, unless it ho entirely performed, by a delivery of the goods at the port ol" destination, no freight is due. Consecjuently, if \yAYi ol" llu' cargo is lost by perils of tlie sea, and part conveyed to the place of destination, tliere can l^e no apportionment of the freight, under the charter-party. That is to say, if ' Abbott on Shipping, p. 514. '■' Pinto V. Atwatcr, 1 Day's K. 103. 0l2 THE LAW OF SHIPPING. the ship-owner seeks to recover upon the charter- party, he is hound hy its terms, and therefore pre- chided from obtaining freight, because he has not full}- performed the conditions of his contract. It is presumed, however, that a Court of law woukl sustain a special action on the case (a part of the cargo being carried to the port of destination, and there accepted), founded on the implied assumpsit, arising from the acceptance of the goods, unless, indeed, it should appear, from the particular words of the charter-party, that the parties intended to make the freigiit absolutely dependent upon the delivery of the whole cargo/ In the case of a general ship, or one chartered for freight, to be paid according to the quantity of goods, freight is due for what the ship delivers.^ 551. Where, before abandoning a vessel from necessity, the seamen take out a portion of the goods into the boat, and are afterwards taken up at sea, and carried into port by salvors, it is held that no freight is due on the goods so saved ; and for the very valid reason that no part of the cargo is deli- vered by the ship. The salvors, and not the ship- owner, are the deliverers of the goods saved. There is, in such a case, no part performance by the ship- owner, and no dispensation of performance by the owner of the goods.' • Post V. Robertson, 1 John. R. 24. 2 Ritchie V. Atkinson, 10 East, 29.5; 3 Kent's Com. 227. See also Weston v. Minot, 3 W. & M. 43G, as to apportionment of freigiit. 3 Dunnett v. Tomhagen, 3 John. R. 1.54. OF EARXIXG AND PAYMENT OF FREIGHT. 513 552. We have elsewhere seen that where a ship is forced into a port short of her destination, and in her present condition cannot finish the voj-age, the master must repair in a reasonable time, or proceed in another ship. If, however, the owner of the cargo will not wait for the repair, nor consent to the tran- shipment, the master will be entitled to the wdiole freight. He stands ready to fulfil his contract, but is prevented by the shipper. If, on the other hand, the master refuses to go on with the voyage, his claim for freight is gone; he has not fulfilled his contract. But if the shipper voluntarily accepts the cargo at the port of distress, or at an inter- mediate port, freight is due in proportion to the voyage performed, jyro rata itineris peracii} 553. What will amount to a voluntary acceptance, is a question of fact, to be determined by the circum- stances of each case. It cannot, however, be in- ferred from the circumstance that the shipper con- sented to receive the proceeds, in a case where the goods were sold, without his authority, at an inter- mediate port. This amounts only to a ratification of the sale of the goods, and a consent to receive the money in lieu of the claim for the goods and a non- performance of tlie contract. Thus, Avhen a vessel was captured and coiidciniicd as prize of war, but tlie cargo was given up, and delivered into the hands of a [)assenger, who, witliout any autlio- rity from the shipper, sold it, and remitted to him ' Abbott on tShipping, p. 52'), note, ami autliorilios there cited; :5 Kent's Com. 228. 88 514 THE LAW OF RITirriNG. the proceeds, the fact that he received them did not operate to make him liable for Ireight pro rata.' 554. In cases where p?-o rata freight is due, it is a question of importance upon what basis it shall be computed. In Luke v. Lyde,'' the rule of apportion- ment adopted was to calculate how much of the voyage had been performed when the disaster hap- pened. In the case of Marine Ins. Co. v. Lennox, decided, in 1801, by the Court Ibr the Correction of Errors, in New York, the rule adopted was to ascer- tain how much of the voyage had been performed, not when the ship first encountered the peril, and was interrupted in her course, but when the goods had arrived at the intermediate port, because that is the extent of the voj-age performed, as it respects the interest of the shipper. « Escopiniche v. Stewart, 2 Conn. 391. Judge Story, in his edition of Abbott on Shipping, p. 549 (5th ed.), gives a summary of the American authorities upon the subject of pro rata freight, which deserves attention. ''A voluntary acceptance," he says, "may, in some of them, be thought to mean no more tha.a an acceptance of tlic goods, or their proceeds, whether it has resulted from choice in waiving any further transportation of the goods, or from that moral necessity which the impossibility of pursuing the voyage, or otherwise preserving the goods, might impose upon the owner or his agents. If the owner or his agents should refuse to pay any freight at the time of receiving them, or should receive them with a protest against freight, or with a denial of any right to claim it, or if his agents should merely act, in the absence of the owner, for the benefit of all concerned, there could arise no implication of any contract to pay freight resulting from the mere acceptance of the goods or their proceeds." Vide Welch v. Hicks, G Cowen, 504. 2 2 Burr. 882. OF EARNING AND PAYMENT OF FREIGHT. 515 555. Ill the case of Robinson v. Marine Ins. Co.' it was said by Kent, C. J., that this rule appeared to be more just than that in Luke v. Lyde, but owing to the circumstances of that case, the latter rule was followed. The rule adopted in Massa- chussetts is, that the ship-owner shall receive his whole freight for the voyage, deducting the amount of the freight necessary for the subsequent transpor- tation of the goods to their port of destination.^ This latter rule seems to be just and equitable. The freight is calculated upon the basis of the bene- fit received by the shipper by the transportation of the goods to the intermediate port, with reference to their ultimate destination, 556. The general principles of law, with respect to freight, may be controlled by the special contract of the parties. When their wishes and intentions are fairly expressed, they are bound by them. If particular terms are employed in the charter-party, the rights of the contracting parties will be governed by the interpretation which the law puts upon those terms. The general rules that have been adopted by our Courts, in the construction of charter-parties, are in accordance witli the estaljlished principles of British law adopted in the interpretation of similar contracts. When the parties, by their agreement, make tlic outward ;mro rata freight to the place of shipwreck.^ 559. It is proper to observe, that the transfer of the title to a general ship transfers accruing freight. Of course, the moment there is a delivery of the cargo, the connexion between the ship and freight is ended, and a transfer of the ship thereafter does not include the freight.^ ' Coffin V. Storer, 5 Mass. 252. ' Pelayo v. Fox, 9 Barr. R. 489. 519 CHAPTER VII. OF STOPPAGE IX TRANSITU. 560. If goods arc consigned on credit, and, before their delivery, the consignee becomes bankrupt, or suspends payment, the law reserves to the consignor the right to countermand their delivery.' This is called stoppage in transitu. The right of stopping all goods shipped on the credit and risk of the con- signee remains until they come into his possession at the termination of the voyage, unless he shall have previously sold them hona fide, and endorsed over the bills of lading to the purchaser.^ ' Bidcllocombc v. Bond, 4 Ad. & Ell. 332 ; Vcrtuc v. Jewell, 1 Camp. 31 ; Walter v. lloss, 2 Wash. C. (!. R. 283; Rybcrg v. Sncll, Ibid. 204, 403 ; Conyers v. Enni.s, 2 Mason, 230. In the case of Rogers v. Thomas, 20 Conn. 03, upon the question of the insolvency of the consignee, as involving the right of stoppage in fransitu, the Court said, " Wc think, therefore, that in order to authorize a stoppage in transitu, there should be some ostensible and certain criterion by which tiic insolvency of the vendee may be ascertained ; and that it should consist of some visible change in hi.s pecuniary situation, — some open, notorious act on his part, calculated to afTcct his credit, — some change in his apparent cir- cumstances, which would operate as a surprise on the vendor, and which if he had known, he wouM not have given credit l(» tlie vendee." ^ Stubbs v. Lund, 7 Mass. 4ri3 ; naldcrstoii v. .Maiirn, 2 ('ranch. C. C. R. 023; Sawyer v. Joslin, 20 Vt. 172. 520 THE LAW OF SlIirPING. 5G1. Lord Il.irdwicko, in tlie case of Snee v. Prescott/ said that, even aCter the goods were deli- vered to the principal, he could never see any sul> stantial reason why the original proprietor, who never received a farthing, should be obliged to quit all claim to them, and come in as a creditor only, for a shilling, perhaps, in the pound, unless the law went upon the general credit the bankrupt had gained by having them in his custody. But it is well settled, both in England and this country, by a long and uninterrupted course of decision, that the consignor or vendor, in cases of insolvency or stoppage of payment, can reclaim the property only while it is in its transit.'^ 562. But if the sale or consignment of the goods was procured by fraud, the vendor or consignor may reclaim them after they have passed into the hands of the vendee or consignee, or into the hands of an innocent purchaser ; and this upon the ground that the vendor or consignor still retains the legal right in the goods; that the fraudulent vendee or con- signee can pass no title, because he has acquired none; and, although the purchaser may be wholly innocent, he is no more so than the original pro- prietor, who parted with the possession from the contrivances of fraud ; and as, between two equally innocent persons, claiming either a legal or equi- table right, his which is prior in time prevails.'' ' 1 Atk. 11. 245. See also Inglis v. Usherwood, 1 East, 515 ; 3 B. & P. 4G9 ; 2 Esp. R. 014. ^ Conyers v. Ennis, 2 Mason, 236, and Abbott on Shipp., 614, note 1. 3 Ash V. Putnam, 1 Hill's R. 302. Sec also Nellis v. Bradley, OF STOPPAGE IN TRANSITU. 521 •563. If, at the time of the consignment, the con- sio-nee is insolvent, whether that fact be known or unknown to the consignor, he has no right to inter- cept the goods in their transit. To enable him to do that, the insolvency must intervene between the consignment and the exercise of such right. If, when he makes the consignment, he knows of the insolvenc}' of the consignee, the law will not inter- pose to protect him from the consequences of his own folly. If he does not know of it, he might have ac- quired the information, or insisted upon security, but doing neither, he must abide the result of his indis- cretion.' 1 Sandford's Sup. Ct. R. 560, and Rogers v. Thomas, 20 Conn. 53. In this latter case, it was said by the Court, tliiit the right of reclamation possessed hy the vendor, wliorc the goods were ob- tained by fraud, may be exercised at any time after the vendor has parted with the possession, and whether they are in the hands of the vendee or of any other person, cxaptinij one to vhum thri/ have been transferred hy ihc vendee, bona fide, and for a valuable consi- deration, advanced or (jivenon the strenr/th of them. This conflicts with what was laid down in Ash v. l^itnam, but the "better reason," we cannot but think, is with that decision. ' Buckley v. Furniss, 15 Wend. VH ; Rogers v. Thomas, 20 Conn. 5.3 ; Smith's Com. Law, 547 ; Oliver's Law Sum., 11(5. In the case of Naylor v. Dunnie, S I'iek. IDS, where it was held, that an attachment of goods on board a vessel, as the property of the consignee, does not defeat the right of the consignor to stop them in traimitv, Parker, C. J., in ililiviring the opinion of tlir Court, said, " Tliis right (stoppage in transifn) is founded upon an implied con- dition in the .sale, that if the vendee should become insolvent, between the nhipment of the ijinids, and the reeepflon if them hi/ the vendee, the vendor shall have the right to rescind the eoiilract, and reclaim the goods." On the other hand, in the case of Dmiath v. Uroomhead, 7 Barr, .'Uj:5, Rogers, J., in delivering the opinion of the Court, said, "That the right of a vendor, on the discoirri/ 25 CONSIGNOR, when may sue upon bill of lading, "''1> ■!•''; "'^ when deemed the agent of the consignee, . >'•• may sue where consignment was procured by fraud, . 4<>3 552 INDEX. CONSIGNOR, contvwcl may sue, where carrier contracts to bo liable to him, 464 when liable for freight, .... 503, 504 when may e.xercise the right of stoppage in transitu, . 519 may reclaim goods, after they have reached the con- signee, when, ..... 520 {See " Stoppage in Transitu.") must pay freight, &c., when he reclaims his goods, 525 not bound to refund part-payment, to e.xercise right of stoppage, &c., ..... 525 may stop the goods for unpaid balance, . . 525 may sue for the price, if ready to deliver the goods, . 525 CONSUL, to provide for destitute seamen. . . . .39 in what cases, empowered to appoint inspectors of ves- sels, ....... 68 duties of, upon receiving the report of inspectors, 68, 69 who, and in what cases, may exercise the powers of, . 70 penalty, for not permitting seamen to see, . 134, note, when may discharge seamen, .... 135 advice of, does not justify illegal acts, . . 135 duty of, to provide for destitute seamen, . . .136 proper judge of the vessel, on board of which destitute seamen shall be brought home, . . . 138 certificate of, effect of, . . . . . 147 " CONTENTS UNKNOWN," meaning of, in bill of lading, . ." . . 471 CONTRABAND OF WAR, must not be furnished by a neutral, . . 187 liable to seizure and confiscation, . . 187, 223 carrier, must not take on board, .... 219 origin of the term, ..... 224 capture of, effect upon the innocent part of the cargo, 225 affects all the property of the same owner, 22(5, note 2, 229 how many descriptions of, . . . 227, 228, note, whether provisions are, ..... 228 COxNTRIBUTION, when shipper of goods entitled to, . . . 269 for payment of salvage, . . . . .511 CONVEYANCE OF GOODS, contract for, ...... 428 difference between contract for, and contract for convey- ance of passengers, ..... 428 CONVEYANCE OF PASSENGERS, . . . 423-448 (See " Passenger," "Common Carriers," and •'Baggage.'") INDEX. 553 18" 187 241 113 CONVOY, effect of sailing under, upon a neutral ship, kc, . resistance of, involves ships and cargoes sailing under protection of, ..... COVENANTS, express and implied, distinction between. CORPORATIONS, for what purposes, deemed persons, . . • 11-, CREW, competent, must be provided by common carriers, . 201 when evidence of, admissible to prove their competency, 201, 202 CRIMINAL LAWS, construction of, .... CUSTOM, •when binding upon parties, office of, . . •■ • cannot contradict express agreement, as to the stowage of goods, must be followed, when, controls bill of lading, when, controls mode of delivery, may control time of payment of passage-money, . 117, 118 207, 208 208, note. 208, 209 213 . 241 273, 274 . 443 D. '•' DANGERS OF THE NAVIGATION,"' meaning of, . ■ • • freezing of canals, &.C., . . . . DEFEASANCE, instrument of, need not be under seal, DEBTS, of seamen, when not rcroverablo, DELIVERY, what amounts to, by common carrier, personal, when re(iuired, why personal, is not rccinired by water carriage, . may be demanded on shipboard, on board a lighter, .... payment of freight, must precede, duty of master, when there are conflicting claims to property, . . . . • efTect of, to a carrier of the consignee, what sufTicient, to vest property in assignee, 241, 303, note. . 303. 304 395 fiO 273, 271 278, 279 279 279, 280 280 281 the 285, 468 4.'-.0, n.3 450, n. 3 554 INDEX. DELIVERY, continued essential to perfect the riglit to freight, unless, . 483 to a warehouseman, whether it determines the right of stoppage, . . . . . .535 what is constructive, .... 537, 539, 540 what amounts to, when goods stored in a warehouse are sold, ...... 538 DEMURRAGE, 498 DESERTION, prior to commencement of the voyage, of seamen, pu- nishment for, ...... 56 does not disqualify the seaman from protection, under the laws of the U. S., . . . . 138 DEVIATION, when it constitutes barratry, . . . .110 discharges seamen from the obligation to proceed on the voyage, ...... 128 effect of, upon carrier, . . 218, 219, 233, 234, 302, 303 what constitutes, .... 233, 234, 242 to avoid danger, whether, .... 234 not, to save life, ..... 235 to lie by, to save property, . . . .235 eflfect of, upon insurance, . . . . 231 whether predicable of river navigation, . . 238, note, whether carrier liable for loss from, when mistaken, 30.5, 306 DISCHARGE OF SEAMEN, upon a voluntary sale of the vessel, . . 129-133 upon application to a consul, .... 135 for unusual or cruel treatment, . . . 135 maliciously and without justifiable cause, . 139,140 for what causes, .... 140, note 2,143 not justifiable, for a single offence, unless, . 144, note 1 DISIMISSAL OF THE MASTER, may be at pleasure, ..... 183, 184 by admiralty process, .... 184, note 3 DRAFT, refusal of the consignee to accept, how it afTectshis right to the goods, ..... 464 DUNNAGE, what is, . . . . . . . 218 E. EMBARGO hostile, of ship, discharges lien for freight, . . 282 INDEX. 555 EMBEZZLEMENT, ^vhen the mate is responsible for, . . .157 master and owners responsible for, . . . 183, 265 ENDEAVOR TO COMMIT A REVOLT, compelling master to return to port,, when the vessel is seaworthy, amounts to offence of, . . 66,122 what is a sulficient defence to an indictment for, . 66 what constitutes, .... 119,124,126 enrol:ment. of a vessel, what must set forth, . . . 363, note. "ENTIRE CAPACITY,"' meaning of, . . . • • • 221 F. FACTOR, when master acts as, owners discharged from liability, 170-172 FIRE, lo-sses by, how they affect the carrier, 197, note, 298-301, 459, note. FISHERIES, vessels engaged in, how to be manned, . .39 contract of seamen engaged in, when required to be in writing, . . . • • . 45, 60 FISHERMEN, engaged in bank and other cod-fisheries, must have their contract in writing, . . . . 45, 60 what the contract of, must express, . ■ 60-61 penalty upon, for failing to enter into a written contract, 61 penalty, for neglect or refusal of duty, ... 61 FISHING BOUNTY, upon what condition allowed, . . .39 when forfeited, . . . . .61 FLOGGING, abolished in the navy and merchant service, . . 85 FOKGEiiV, of bill of lading, .... 453, note. FOREIGNERS, when deemed to be " seamen of the 1'. S."' 39, 138 when deemed to be a part of the crew, • '1'^ admiralty juri-sdiction of, . . . • ■^^' FORERJN V0YA(;E, meaning of, . . .15 whaling and fishing voyages, not con!o rata, when due, .... 481,513-518 pro ra/a, how computed, . . . • 514,515 general principles, with respect to, may be controlled by contract, . . • • 51t) when voyage out and in, is an entire one, 515, 516, 517, and note, accruing, is Iranslerrcd by tran.'-li-r 111 ship, . 518 con.-ignor muat pay when he reclaims tlic goods, 524, 525 FROST, damage by, . . 309.310 55S INDEX. G. GENERAL AVERAGE, whether tlie jettison of deck goods constitutes a case of, 207 in case of the sale of a shipper's goods, . 269, 481, 482 when freight to be paid by way of, . . .511 GENERAL SHIP, 449 H. HOSPITAL MONEY, for rehef of seamen, . . . . 157,160 whether ships in the whale, &c., fisheries are bound to contribute to, ..... 159 HOYMAN, responsibility of, . . . . . .197 L IMPRISONMENT, of seamen, when allowed, .... 90, 93 effect of, upon wages, . . . . .93 INCOMPETENCY, effect of, upon wages of seamen, . . . 151,152 INSOLVENCY, criterion of, . . . . . . 519, note. INSURANCE, master not an agent to procure, . . . 164 contract of, different from carrier's, . . 198, 199 what avoids policy of, . . . . 198, note 2 effect of subsequent neglect by master and crew upon, 202, note 2 upon contraband goods, effect of, . . . . 224 effect of deviation upon, .... 234, 235 when policy of, grants liberty to touch at a port, master may discharge or take in additional cargo, . . 242 premium for, when not recoverable by a part-owner, 370 effect upon, of not taking a pilot, . . 419, note 7 INSPECTORS, of vessels, consul may appoint, in what cases, . 63, 68 duties of, when appointed, . . .63, 68, 69 INTEREST, when to be paid by common carrier, upon losses of goods, ...... 265, 266 INTERFERENCE, of master with the pilot, . . . . .413 INDEX. 559 J. JOINDER, of part-o\ATiers in a suit, .... 383-387 non-joinder of, how taken advantage of, . 383, 384, note. JOINT TENANTS, part-owners of a ship not, ..... 355 of a boat, whether responsible in solido, . . 373, 374 whether underwriters become, upon abandonment, 388, 389 JURISDICTION, ADxMIRALTY, of marhime torts, ...... 173 of maritime contracts, .... 240,291,425 extent of, as to locaUty, . . . 315-318,407 of wages earned in rigging and fitting out a ship for a voyage, &c., ...... 332 of wages, earned before commencement of the voyage, 333 of wages, when voyage is abandoned, . . 333, 334 wages must be earned in the business of commerce, &c., to give jurisdiction, .... 334 does not extend to wages earned after voyage is ended, 335 does not extend to wages earned on board a public ship, 336 of foreigners, ...... 337 of seaman's contract, when evidenced by a sealed in- strument, ...... 338, 339 when exercised to decree the sale of a vessel, held in common, ..... 359, 369-372 in cases where title to a ship is in question, . 359, note, upon application of part-owners, . . 356-361 to dispossess the master, who is part-owner, . 365 to adjust accounts between part-owners, . . 382 upon questions of mortgage, . . • 398 of pilotage services, ..... 407 of passenger contracts, . . 425, 473, n., 474-478 of maritime contracts, where breach occurs, before per- formance of the voyage, ..... 477 JUSTIFIAHLE CAUSE, what constitutes, in the discharge of seamen, 140, Ml, 1 13, note 2 L. LANGUAGE, violent, looked upon with suspicion, when employed at the moment of the infliction of punishment, . 98 whether disrespectful, justifies tho master in ntrikin;,' a blow, 98, nolo. 5G0 INDEX. '• LAWFUL GOODS,'" meaning of, ..... • 220 LEAK IN SHIPS, damage caused by, who liable for, . . . 266 LIEN, of creditor, created by contracts of the master, . 1G6, 1G7, 168 lost by neglect to enforce, . .166, 173, 339, 340, note 2 in cases of collision, ..... 173 for repairs and supplies, .... 179, 180 upon the vessel, for master's breach of his duties as common carrier, .... 206, 214, 291 upon a chartered vessel, for damage to the goods, 217, 291 of shipper, for the proceeds of the sale of his goods, 267, and note, for freight, .... 280, and note, 472 for freight, discharged by hostile embargo of the ship, 282 on baggage of passenger, .... 283, 444 for injury to shipper's goods, . . . .291 maritime, priority of, 314, note, 318, 319, 320, 324, 325, 339 essential character of maritime liens, . . 314, note, of seamen, upon the ship and whatever is substituted for it, .... . 318,322 ex contractu, rule as to preference, . . 319. note, 320 ex delicto, rule with respect to, . . ' . .320 how discharged, v/hen there are several creditors, and one has double security, . . . • 321 of seamen, upon goods taken on freight, 323, 324, and note, of seamen, for antecedent voyages, 325, and note, 32G, 327 upon the property of a foreigner, . . . 337 when to be enforced, .... 336, 337 what acts will defeat, . . . .340,341,342 e.\ists against the government, . . . 343 of a part-owner, ...... 379 of a ship's husband, ..... 379 for pilotage, 407, 408 upon the vessel, for misconduct of a licensed pilot, 417, and note 3, 418 of a passenger, for breach of his contract, . 425, 473 of carrier, upon goods received of a wrong-doer, 499, and note, for freight when discharged, .... 500 dLslinction between maritime and common law liens. 500 what agreement of the parlies, inconsistent with the con- tinuance of, . . . . . 501 not waived by delivery of the goods upon false and fraudulent representations, .... 502 IXDEX. 561 LIGHTNING, a loss by, considered as the "act of God,"' . . 297 LIVING ANLAIALS, freight of. . . . . . . . 492 LOG-BOOK, absence of seamen, to be entered in, . . 58 entry of absence, how rebutted, .... 57 entry in, indispensable evidence of desertion, . 59 •what is deemed a proper entry, . . . . 59 when entry of absence must be made, . . 59 name of absenting mariner, must be entered in, . 59 mate must keep, ..... 157 what it should contain, . . . . .157 M. MALICE, when implied, ..... 174 MALICIOUSLY, meaning of, in the act relating to the discharge of sea- men, . . . . . 141, and note 1. MArdNER'S CONTRACTS, implied warranty in, that the party is competent, &c., lal breach of, effect upon wages, . . . 151, 152 (Vide 'SuippiNf; Articles" and ''Seamen's Wages."') MARITLME CONTiiACTS, whether principles of, are applicable to interior naviga- tion, ....... 243 MARITLME LIENS, peculiarity of, . . . . . . 500 MARQUE SHIPS, lien on, for wages, may be enforced in the Admiralty, . 336 MASTER, appointmnnt of, .... . 33 liability of, .... 31,35,86,182,372 must make an agreemeiit in writing or print with the seamen for their services, . . .12,43 penally, for failure to do so, . . . 43 mu.st proceed to the ports do.scrilied in the .shipping arti- cles, in the order in which llioy stand, . . 50 when, may proceed to a port not described in the articles, 50-52 one owner of a fi.Hliing vcKsei, acting a.s, binds the others, 6 1 impliedly agrees, that the chip shall bo found seaworthy, 63, 64 bound to provide good and sufliciciit provisions for tin! seamen, . . . . . 1, To 8C 5G2 INDEX. MASTER, coniimiccl. in what cases, must pay tlie expenses of a survey, . 69 when excused for not having on board the requisite quantity of provisions, . . . . .72 must oversee the expenditure of tlie provisions, 72 uhether entitled to be cured at the expense of the ship, 83 authority over mariners, .... 85-106 analogy of authority of, to that of a parent, . . 85 authority of, not of a military character, . . .86 when he may take life, .... 87 ■what acts will justify the infliction of punishment upon the seamen, ...... 89-97 when he may confine the seamen on board the ship, 90 whether he can confine the seamen, in a prison or guard- ship. ...... 91 when he may use deadly weapons, . . .93, 94 when he may be disarmed, . . . . 94, 95 when he may be resisted, . . . 95,121 demeanor of, . . . . . .96, 97 who may exercise authority of, when absent, . .100 only lawful orders of, to be obeyed, . . . 101 bound to prevent undue exercise of authority on the part of his subordinates, . . . .101 malicious punishment by, frowned upon, . . 102 defence of, to an action for damages, . . 105, 106 penalty for preventing from defending the ship, . 117 duty of, upon a sale of the vessel and a discharge of the crew, 129, 130 bound to bring home destitute seamen, . . . 136 malicious discharge of the crew by, . . 139. 140, 141 may discharge in a foreign port, when, . . . 142 liable for improper discharge of the crew, . . 145 authority of, over the inferior officers, . . 147-150 when justified in putting the officers upon a different duty, ...... 151 when may be a witness, . . . . .153 substituted, whether liable for antecedent wages, . 15-1, note, duty of, with respect to hospital money, . . .158 may bind owners or a purchaser by his contracts, 160, 162, 452 may charter the vessel in a foreign port, . . 161, 162 cannot bind by a sealed instrument so as, &c., . ,162 may exempt himself from liability on his contracts, how, 162 general zigent of the owners, with respect to the ship. 161, 162, note, 165, note, 183 INDEX. 563 MASTER, continued. when may bind owners for contracts made at the place of their residence, .... 162, note, 163 may vary contract of the owner, . . . ]6'2, note, cannot bind owner to carry goods freight free, . 162, note, may sign bill of lading, .... 162, note, 164 cannot pledge freight for private purposes, . . 1G2, note, cannot procure insurance. ..... 164 a stranger to the cargo, except, &c., . . 164, 165, 189 when may purchase cargo. .... 1G5 when may and must sell cargo, 189, 190, 191, 248, 251, 259, 479 bound for the diligence of a pilot, when, . . 165 privileges of, &c., . . . . . .170 when he acts as supercargo or consignee, 170-172, 188, 194, 213, 272, 469 malicious acts of, .... . 174 may procure repairs and supplies, . . 179-181,372 may borrow money, in what cases, . . . 179-182 how far controlled by instructions of the owner, . . 182 owners may dismiss, ..... 183, 184 breach of blockade by, ..... 185 duties in time of war, .... 185-188 when owner of cargo, bound by acts of, . . 186, 187, 188 duties and powers of, upon an interruption of the voyage, 189-195,242-247 duties of, in cases of capture, .... 192, 193 when must take a pilot, . . . 202-206,409,413 when responsible for acts of, .... 409-413 how must approach pilotage-ground, . . . 20 1 duties and responsibilities of, as common carrier, 206-231 {Sec til. " CoMMO.N Cauiuek."') may put ashore goods, placed clandestinely on board, unless, . . . . . .210,211 bound to superintend stowage of cargo, unless, . 215, 2 Hi effect of violation of contract of, . . 2 IS. 219 must deposit his sea letter, &c., in vvluit cases, . .231 must sail with first fair wind, when, &c., . . 232 may deviate from customary track, when, . 23 1-236 cannot change the voyage, .... 238 when may stop, at intermediate ports, . .211 if ship is (lcslineliip-owncr, . 77 in what cases f*hip-ownor is bound to pay for medical advice, &c., notwithstanding the provision of, . 77, 83 MISDELIVERY, by fault of shipper, carrier not responsible for, 271 MONEY, wlicii included as part of the baggage, 13.1 MORTGAGE; of vessels, where to be recorded, 399, note. MORTGAGEE OF A SHIP, liability of, for repairs and supplies, . 391-399 566 INDEX. MORTGAGEE OF A SHIP, mUimicd. ell'ect of holding himself ont as owner, . . 392,393 not liable for wages of master and seamen, . . 394 liability of, when he has taken possession, . . 395 liability of, when holding an unconditional bill of sale, . 395 not made liable by registration of name, as owner, at the custom-house, . . . 395, 396, and n. N. NATIONAL CHARACTER, of seamen, .... .35,36 of ships, .... 36 NAVAL STORES, when deemed contraband of war, . 228 NEGLIGENCE, carrier responsible for, in what cases, 199, 2G9, 293 NEUTRAL, must preserve his neutrality, . 187 efiect of engaging in a contraband trade, 187 may carry contraband goods, subject to the right of seizure, ..... 223, and note, 224 acts that will subject property of, to condemnation, 188, 222-229 carrier, of enemy's goods, when entitled to freight, 485-490 NOTE, when given by vendee for goods, efTect of upon right of stoppage, ...... 529 NOTICES, whether common carriej may limit his liability by, 436-442 O. OFFICERS, of a vessel, subject to the authority of the master, . 147 may be discharged by the master, . . . 147 how treated by Courts of Admiralty, . . 147-148 ONUS PROBANDI, when upon ship-owners, in contracts with seamen, . 54 when upon seamen, . . . . 60, 87 as to sufficiency of medicine chest, ... 84 as to whether punishment of a seaman is moderate, . 105 when upon a common carrier, 216, 262, 291, 302, 313, note, with respect to misconduct of a pilot, . . 421 "OR ELSEWHERE," how construed in shipping articles, . . 46, 47, 48 INDEX. 567 p. PARTNER, admission of, when binding upon the firm, . . 378 PARTNERSHIP, a ship may be the subject of, . . . ■ 357 when repairs and outfits of a ship, are deemed to be on account of, . . • • • • 38*, PART-OWNER, may commit barratry, .... 108, 109 liability of, in case of tort, . . •* • 1~^ when acting as master, how displaced, . . . 184 contraband goods of one, do not affect the goods of co- tenant, ....•• ~-" effect of his not claiming the contraband goods, 226, 227 how part-ownership in a ship may be acquired. . . 355 of a ship, ordinarily tenant in common, . • 355, 356 can sell only his share of the property, . • 356 may become a partner, .... 35* dissenting, will be compelled to let the ship go. "upon any probable design,"' . . . • • 359 majority of, have a right to employ the vessel, . 359, 36-1 when minority of, may employ the ship, . 359, 3G7 when equally divided, those in favor of employing the ship, may send her to sea, . . • • 360 dis.senting, bears none of the expense and shares none of the profits of the voyage, in what cases, . .361 when value of his share must be paid for, if the ship is lost, 362 when must share the fate of a voyage, undertaken by the major interest, . . . • • ^ti'J whose name does not appear in the enrolment, wlien may demand security, . . . • 363 majority of, may appoint the officers and crew, . . 3(» J agreement of, binding some of the part-owners as to par- ticular officers, . . . • • •'b-1 dispossession of, when master, . • 365, 3G(> when equal intcrcst.-J arc divided, as to the employment of the ship, .... 368,369 when Court of Admiralty will decree a nalc of the ship, 369-371 repairs and supplies ordered by, a charge upnn all the 37" owners, . • • • ^ ^*' exclusive credit given to one discharges the otlicr?", 372, 373 what amounts lo exclusive credit, 3< I. 37. when discharged by settlement with agent. . 3<5 568 INDEX. PART-OWNER, contimtcJ. may bo ship's husband, ..... 37fi {Sec " ShI1''s HllSBAND.'"') cannot ex officio borrow money on account of the several owners, ...... 378 nor pledge the shares of the others, . . . 378 nor insure on account of, . . . . 378 cannot recover premium paid for insurance, . . 378 admission of, not binding upon copartner, . . 378 cannot purchase cargo, ..... 379 lien of, when ship's husband, . . . 379 lien of, upon shares of co-owners, . . S80-382 remedy of, to obtain adjustment of ship's accounts, . 382 must all join in an action, . . . 383, 384, n. when must be joined in action against, . . 385-387 responsible in solido for torts, .... 386 responsible to material-men, although he may have paid a sum equal to his share, .... 387 not responsible for careless use of the common property, 389 PASSAGE-MONEY, when not recoverable, ..... 426 when not recoverable back by passenger, . . 427 same rules applicable to, as are established on the sub- ject of freight, . . . . • .442 when paid in advance, . . . 427, 442, 443 when due, ....••• 443 and freight; governed by the same rules, . . 473 Admiralty jurisdiction of, . . . • 473-478 PASSENGER, baggage of, may be detained for his passage-money, . 283 authority of master over, .... 423, 424 bound to do acts of necessity on board. . . . 424 for his services on board entitled to pay, . . 424 whether he may leave the ship in a case of emergency, 424 may become a salvor, .... 424, note 3 contract of, within the jurisdiction of the Admiralty, 425 lien of, 425 failure to carry to designated port, . . 425, 426 remedy and lien of, upon breach of the contract, . 426, 431 remedy of, for breach of contract as to time of sailing, . 426 when cannot recover back passage-money, 427, and note, contract of, different from contract to carry goods, . 428 entitled to be received on board, . . . 429 carrier may make regulations as to the carriage of, . 429 when carrier may exclude, .... 429 INDEX. 569 PASSENGER, coiitinued. bound to obey regulations, . . . 429 threats of, how may be punished, ... 430 how entitled to be treated, .... 430 entitled to cabin passage, upon agreement therefor; 431 agreement of, to remain on board until payment of his passage-money, .... 431, note, how much baggage may carry, . • .432 whether carriers of, are responsible for injuries to, . 435 {See " Baggage.") passage-money of, when payable, . • -l-l^ laws of the United States with respect to, . • 444-448 PASSENGER LAWS, of the United States, .... 444-448 PENALTY, when forfeited upon breach of a passenger contract, . 426 PERILS OF THE SEA, exception of, implied by the law, . . .293 meaning of the phrase, . . . • 294,295 when defence of, will not excuse the carrier, . . 296 damage caused by wind comes within the exception, 307 a collision, without fault of either party, or from negli- gence of injuring ship, falls within meaning of, . 308 damage caused by a vessel striking ground, within tlie exception of, . . • • •• ^^^ destruction of ship's bottom by worms does not come within exception of, . • •■ ^^^ barratrous acts of master, do not full witliin meaning of, 310 PETITORY SUIT, character of, 359, note 2 PILOT, master responsible for acts of, in what cases, . 165, note 3 when must be on board, . . • • 202-206 in what cases iho captain or [mate may act as, . 205 office of. '"O,!*)! duty of, . . . . ■ • • '00 not bound to go on board a vessel in distress, unless, when he takes charge of a vessel, must use his utmost oxertionB, &c., . . . • ■ his office a private one, ... "^' pubject to thn regulations of the law. . '"' power over, whether exclusively in CongrefH. 101-407 ma.'«ter8 bound to take, . 409,113,419 anthority of, when on board, . 4(t9, I 400 100 570 INDEX. PILOT, continued. when master and owners exempt from liability for acts of, ..... 409, 410, 417, 421 whether, and in what cases master may control, . 411-413 out-going vessels may select their own pilot, . .414 elfect of permanent engagement of, . . . 414 whether to see that the anchor is in a proper situation to be dropped, ...... 414, 415 respon.sibility of, while the vessel is in tow of a steam-tug, 41 G PILOTAGE, power over, whether exclusively in Congress, . 401-407 lien for, 407, 408 half-pilotage lien, ...... 408 PIRACY, if master commits, owners not liable for, . . . 183 PIRATE, who deemed to be, . . . 114,115,116,117 robbery, when considered as, . . . . 114,116 confederation with, . . . . .119 POSSESSION, what sufficient to defeat the right of stoppage in transitu, 528, 529 POSSESSORY SUIT, what is, ..... 360, note. POST-OFFICE PACKET, may be arrested for seamen's wages, when, . . 335 PREMIUM, for insurance, when not recoverable by a part-owner, 378 PRIVATEERS, liable for torts, &c., in what cases, . 175, 176, 177, 178 PRIZE COURTS, jurisdiction of, ..... . 485 doctrines of, with respect to freight, peculiar, . 485-490 PRO:\IISSORY NOTE, by one part-owner, does not discharge the others, unless, 374 deemed to be conditional payment, . . . 375 PRO RATA FREIGHT, {See " FuEiGiiT.'") PROTEST, when master should have drawn up, . . . 283 what it contains, ..... 282, 284 benefit of, ....... 283 PROVISIONS, quantity to be put on board every vessel bound on a voy- age across the Atlantic Ocean, . . . .70 quantity for longer or shorter voyages, . . 71 INDEX. 571 PROVISIONS, conthiued. act respecting, applies to all voyages in proportion to their duration and to seamen shipped, either abroad or at home, . . . . . .71 penalty for not having on board tlie requisite quantity of, 71 \vhat excuses the master and owners from not having on board the requisite quantity of, ... 72, 73 where crew are put upon allowance of, navy ration is deemed the standard of a proper allowance, . . 72 effect of supplying another ship with, . . 73 wlien deemed contraband of war, . . . 228 PUNISHMENT OF SEAMEN, .... 84-106 must not be immoderate, . . . . .87 standard of moderation of, ... . 87 inquiry should precede infliction of, . . . 88 should be administered with calmness and deliberation, 89. 151, note, excessive, will render the party liable to damages. 90. 134, note, unusual, frowned upon, . . . . .91 may be inflicted for past offences, ... 96 effect of violent language, . . .98 ordinarily confined to the master, ... 99 malicious, how punished, . . ■ 102, 103 PURCHASER, of goods from consignee, when liable for freight, . 506,507 R. RATIFICATION OF SALE, 513 RATS, who responsible for damage caused by, . 2C3 whether keeping cats on board, exempts carrier from re- sponsibility for injury by, . . 263, note 2, 264 RECEIPT, only ;j?j7nay(;cic evidence of payment, . 317 effect of, when given to an agent, 37.'), and note, bill of lading considered as, .... 453 REPAIRS AND SlI'l'MES, master, agent to procure, . . • ^"^^t '•''• owners, wh<;n liable for, .179 what are deemed to be necessary, •"^ lien for, 17!., 1 so, 267 when master liable for, l.vo, ISl, 372 ordered by a part-owner, . . ■ • ^'* creditors must look to the person to whom exclusive ere- (Jit was given, . .0*0 572 INDEX. REPAirvS AND SUPPLIES, mitinucd. when deemed to be an account of partners, . . 382 when underwriters liable for, .... 388 when mortgagees liable for, .... 391-399 credit for, to whom presumed to be given, 391, 393 holder of unconditional bill of .sale, liable for, unless, . 395 Admiralty no jurisdiction for breach of contract to make, 477, note. RESHIPPING, 456, 457 (See " Bills of Lading" and " Master.") REVOLT, " endeavor to commit," offence of, ... 66 what constitutes offence of, . , . 118,119,123 refusal to serve under substituted master amounts to, unless, ...... 127, 12S RIGHT OF SEARCH, effect of resistance of, . . . . . 187 when justifiable, . . . . . .187 RUDDER, common carrier responsible for loss caused by breaking of, 307 S. SALE, of a vessel abroad, effect of, upon the seamen, . .130 when justifiable, . . . . . 130, 131 of cargo, .... 249, 251, 257, 259, 266, 267 of the ship, upon disagreement of part-owner, . 369 SALT, how to be stowed, . . . . ,216 SALVAGE, lien for, when it takes precedence of wages, . 319 what must contribute to payment of, . . . 511 SEALED INSTRUMENT, jurisdiction of the Admiralty, of a contract evidenced by, . . . . . . . 338, 339 SEAMEN, ^ in peace, may serve under any flag, . . .35 national character, how determined, ... 36 who may be employed as, on board Afnerican vessels, 36-39 foreign, upon what condition received on board our ves- sels as passengers, . . . . . ^ 37 provision for, when destitute in a foreign port, . 39, 136 provision for relief of, in home port, . . 157-160 agreement of, when to be in writing, . . .42, 43 INDEX. 573 SEAMEN, continued. shipping articles, and list of crew, contain all the condi- tions of contract of, . . . . 52-54 shipped contrary to Acts of Congress, penalty for, . 52, 53 rights of, how guarded by Courts of Admiralty, . 54, 55 must tender themselves on board at the stipulated time, 55, 56 penalty for not being on board at the stipulated time, . 56 deserting, how appreheuded, .... 56 wages of, forfeited by absence or desertion, . . 57-59 harboring or secretion of, how punished, . . 59, 60 debts against, when not recoverable, . . .60 when not bound by shipping articles, . . 61 when may demand survey of the ship, . . .62, 68 must protect the vessel throughout all perils, . 65 when may insist upon return of the ship, . . .65, 66 must abide by the ship when unseaworthiness is removed, 69 may lay their complaints before an American Consul, . 70 penalty for putting on short allowance, . . 71 may leave the ship if provisions bad, . . . 74, n. cured at the expense of the ship, ... 74 medicine chest for, ..... 74-85 when entitled to medical attendance, . . . 80,81 when may be confined in irons, . . • .90 when imprisoned, &c., must be brought home, . 92 when may resist the master, . . • .94 when may disarm the master, ... 94 bound to obey only lawful commands, . 101, 151, note, bound to obey in a river, &c., ... 104 in suit for damages, character of, put in issue, . . 105 penalty for laying violent hands upon the master by, 1 17 when, may restrain the master, . .121 must serve under substituted master, unless, . . 127,128 elfcct upon, of a sale of tho vessel abroad, . .130 provision for their return homo, . . . 130 wage.9 of, when di.schargod upon capture, 131, 132 discharge of, . . • • • 129-147 wages of, when discharged for cruel, ike, treatment, . 135 destitute and sent homo, bound to do duty on boaril, 13i>, 137 may be discharged, for wlial cause.'*, 1 13, 1 1 1, 145 must be compelent, &c., for the service lliey stipulate to perform, . . ■ • . 150, 151 temporary apjiointment of, to the poPt of mate, . I.'i2, 153 of a neutral ship, bound to remain li>, until condem- nation, &c., . • • ^ effect of their negligence upon insurance, *y3 574 INDEX. SEAMEN, continued remcily of. for their wages, .... 314-352 {See " Wages.") when may testify for each other, .344, and note, what etlect will be given to receipts and releases of, 346, 347 SEAWORTHY. every ship must be, at the commencement of the voyage, 63, 64 meaning of, . . . . . .64, 155 when a vessel is not so, the seamen may insist upon her return home, ...... 65 whether employment of a pilot is necessary to consthute, 205, 419, and note. ship's documents essential to seaworthiness, . . 229 SET-OFF, . . • . . . . . 469, note. SHIP-OWNERS, appointment of master by, . . . . 33, 34 responsible for conduct of, ... 34, 35 construction of shipping articles against, when ambiguous or uncertain, ..... 48, 49 may engage men, at wages, to take fish for their account, 61 responsible for improper discharge of seamen, . 145, 155, n. bound to have on board a competent mate, . . 155 bound by contracts of the master, in what cases, IGO, 1G3, 182, 449 when not bound by master's contract, . . 163, 168-170 extent of liability of, &c., . . 167, 182, 183, 185 not liable for goods taken on board clandestinely, . 169 liability of, for acts of master, acting as factor or consignee, 170-172, 194, 212, 213 whether, ipso facto, acceptors of the draft of the master, 172 when answerable for torts of master, 172, 173. 174, 178, 386 instructions of, how far binding on the master, . . 182 bound for violation of blockade by the master, . 185 answerable as common carriers, . . . 196-200 duties of, as common carriers, . . . 196-200 not responsible to their cestuis que trust, &c., for miscon- duct of the master, ..... 260 bound for proceeds of sale of the cargo, . . 267 responsibility of, as common carriers, . . 288-313 liable for the wages of seamen, although names of, not stated in shipping articles, .... 327 liable for wages, notwithstanding a sale of the vos.-?el, . 328 liable for wages of a supernumerary, . . . 328 when exempt from liability for repairs and supplies, 372, 373 when liable for acts of a pilot, . . 409, 410, 417, 421 INDEX. 0/0 SHIP-OWNERS, continued. liability of, when master fails to take a pilot, . 420 by whom action against, should be brought, . . 466 when not entitled to demand freight of sub-shippers, 497 SHIPPER OF GOODS, lien of, .... 166-168,206.291,449 remedy of, . . . . . . 449 must have them marked, . . . . ,212 bound by established usage as to mode of stowing, . 214 no right to demand cargo at intermediate ports, unless, 250, 478 indemnity of, where goods of, are sold for repairs, &c., 267, 268, 269 misdelivery by fault of, . . . . .271 may examine, before making himself liable for freight, 281 acceptance of, does not bar right of action, . . 304 must pay full freight, if he demands the goods at inter- mediate port, ..... 250, 478 entitled to receive, when cargo of a perishable nature, 485 SHIPPING ARTICLES, when required to be made, ... 42, 43, 45 not required in whaling or fishing voyages, . .45 must state the ports at which the voyage begins and ends, 46 uncertain phrases in, how construed, . . . 46-52 and list of crew, contain conditions of contract with the crew, ...... 52-55 void, when, ...... 53-55 unusual conditions in, liow construed, . . .54 presumed to import verily, .... 55 open to explanation, . . • ■ .55 the lime wheii seamen shall render themselves on board to be stated in, . . • 55-56 of fishermen, what must express, . . . 60-61 entry on. nf mariners discharged, . • 135 SHIPPING NOTE, nature of, . . • • • '"^ '^ whether delivery of, by consignee, will defeat right of stoppage, . . • • ^'^^ SHIPS mSHAM), who may be, ...... 3^6 hirt dutie."', • •" his powpr^ .... 376, 377, and note. cannot borrow money on account of owner?*, . 3<8 nor pledge the shares of the several ownern, . 378 nor insure the fhip, . . . • • ^'" cannot purcha-^e a cargo, . . • * '* 57G INDEX. SHIP'S HUSBAND, continued. no lieu for outfits and disbursements upon the ship, . 379 lien of, when a part-owner, .... 379 when he has lien on proceeds, &c., of the voyage, 379, 380 when exclusively liable for repairs, &c., 372, 373, 375, 387, 388 SHIPS, how to be manned, ..... 36-41 engaged in the fisheries, how to be manned, . . 39 engaged in the coasting trade, how to be manned, . 39, 40 penalty upon, for illegal manning, . . 39, 40 what excuses improper manning of, . . . 40 when survey of, may be required by the seamen, . 62 casting away, &c., of, . .... Ill, 112 effect of sale of, upon the seamen, . . 129, 130 bound in s/;ecie for contracts of master, . . 166-169 effect of overloading, .... 200, note, property in, how may be acquired, . . . 355 held by part-owners as tenants in common, . 355-357 may be the subject of partnership, . 356 and note, 357 how to be fitted up for the conveyance of passengers, 444-448 SHIPS DOCUMEiNTS, necessary to seaworthiness of the vessel, . . 229, 230 of a dubious character, when may be used, . . 230 what are essential, ..... 230, note. SHIPWRECK, in cases of, master may sell the cargo, provided, &c., 255, note, 256, 259, note, in cases of, duty of master with respect to the property intrusted to his care, . . . 261, and note, effect of, upon freight, where cargo is saved, . .518 SICKNESS, of seamen, to be cured at the expense of the ship, . 74 effect of a medicine-chest upon the liability of the ship- owner, ....... 80 of seamen, to be cured, although occurring in a foreign port, ....... 84 SNAGS, damage caused by running against, 307, n., 309. n. 3, 313, n. STEAMBOATS, when common carriers, ..... 458 STEAM-TUG, liability of, . . . . . . 416 STEVEDORE, no lien in the Admiralty, . . . . .355 INDEX. 577 STOPPAGE IN TRANSITU, 'J meaning of, . . . . 519, 524 right of, derived from equit}-. . 524-532, 533, 538 right of, when determined, . . 519,520,528,529 who may exercise right of, . 519, 526, 527 when right of, remains, aUhough goods have passed into the hands of vendee, .... 520, 537 if consignee insolvent at the time of consignment, right of, cannot be exercised, . . 521, n. right of, adverse to that of consignee, . . 522 right of, how affected by consignee disagreeing to con- signment, ...... 523 how affected by his assigning the goods for sale on ac- count of consignor, ..... 523 exercise of right of, does not rescind the contract, 524, 525 to e.xercise. consignor must pay intervening charges upon the goods, ...... 524 right of, how affected by taking bills of exchange, . 527 effect upon, of attachment of the goods on board the vessel, ....... 529 whether, may be exercised, after the goods are lodged in the custom-house, ..... 529, 530 whether right of, ended by landing the goods upon con- signee's wharf, ...... 530 effect upon, of placing goods in a public .store, under the warehousing system, . .^3 1 effect upon, of part-delivery. 531-533 effect upon, of placing the goods in consigMCc's vessel, 533-535 effect upon, of delivery to a warehouseman or wharf- inger, ...... 535-537 when may bo exercised, notwithstanding a sale by con- signee, ....... 538 when it exists upon a sale of the goods .stored in aware- house, ...... 538, 539 what act.s will amount to sufficient delivery, so as to defeat right of, ..... 53S-.MI what amounts to an exercise of the right, .'>41 transfer of lulls of l.nling defcata the riglil of. nnloss. kc, 541-543 right of, cannot bo exercLsed, if the goods were Bhippod fo pay a debt, &c.; . . • • ••1-' nor if coii.Hignnc entitled to the property for the «»c of a third person, . . . . • •'"'''2 STOWAGE, of goods, how muM be done 200-210 578 INDEX. STOWAGE, continued. what relieves the master from, . . . 215 bad, meaning of, . . . . . 215, n. SURVEY, of ships, when crew may obtain, . . .62, 68 result of, . . . . . . .69 expenses of, who must pay, .... 69 SURVEYORS, advice of, to sell damaged cargo, not sufficient to justify the sale, ....... 258 •'SWEATING OF THE HOLD," when carrier responsible for, . . . . 313 T. TACKLE, must be provided by the master for the reception and unlading of the goods, ..... 217 TENANTS IN COMMON, part-owners of a ship, whether, . . . 355 not responsible for careless use of the common property, 389 shipment of goods by, the consignment deemed to be several, ....... 469 TIME, allowed to master, to repair the ship, &c., . . 249, 250 of delivery, carrier responsible for diligence with respect to, . . . . . 304, 312, 426 breach of contract as to, efTect upon freight, . . 494-496 TRADING SHIP, (See " Conveyance of Goods.") TRANSHIPMENT, of cargo, when it must be done^ 100-193, 245, 248, 496 if shipper will not consent to, must pay full freight, . 246 TRANSITUS, of goods, when ended, 519, 520, 528, 529, 530, 531, 533-535, 538, 539 TROVER, may be maintained against a co-tenant for sale of the common property, .... 357, note. U. UNDERWRITERS, on vessels, how protected, 111,112,113 de facto, entitled to the protection of our statutes, . 113 by what causes discharged, . . 202, note 2, 204 liable for losses occasioned by collision, . 270, note, 308 must pay extra freight upon transhipment, . . 247 INDEX. 579 UNDERWRITERS, coixtinued. discharged, when vessel is condemned for resistance of search, ..... 270, note, when they become owners, liability of, . . 398 discharged, when master fails to take a pilot, . 419, n. 2. UNSEAWORTHLXESS, justifies the seamen in insisting upon a return of the ves- sel, . . . ■ ■ ■ . 65, 66 effect of, when occurring after sailing, . 66, note, occurring in a foreign port, .... 68 if loss is not occa.'^ioned by, whether carrier is respon- sible for existence of, . . • • .199 V. VENDEE, {See '• CoxsiGXEE.'') VENDOR, (See •• Consignor.'"') VOYAGE, to be described in the shipping articles, . . .46 uncertain description of. how construed, . 46-50 intermediate course of, when not described in the ship- ping articles, ...... 50 interruption of, ..... 189-195 \V. WAGES, of seamen, forfeited by absence or desertion, 57-59 e.xtra, when allowed as a penalty, 71-72 how affected by arrest, &:c., of a seaman, . 1.1, 143, note 1 when not paid over to the consul upon a sale of the ves- sel, may be recovered here, . .133 effect of incapacity upon, .151,152 effect of misrepresentation upon, .... 152 mu.st be paid according to the nature of tlie service, 152. 153 remedy of seamen for, .... 314-352 lien of ma.ster for, and advances, . 321, 322, 504-506 lien of seamen for. 322, 323 lien of seamen for, upon tlio car;;n, . . 323 when earned in antecedent voyage.'*, whctlicr lien for, taken precedence of lien of shippers, 325, and note, 326, 327 triple security for,* •'*' owner liable for, althongli his name is not .••l;itcd in the shipping arlirle.'<, . . . • • •'VS owner liable for, notwithstanding a salo of the vessel, 328 " " " wages of supernumerary, 32R iSO INDEX. 331, 332 332 333 333 WAGES, contiiiucd. substilutetl master, liable for wages of seamen, . 329-331 remedy of seamen for, in cases of abandonment for total loss, .... when earned in rigging out, &c., a ship for a voyage, remedy for, ...... when earned before commencement of the voyage, when voyage is abandoned. .... must be earned in the business of commerce, &c., to give Admiralty jurisdiction of, . {Sec " Jurisdiction. "'") lien for, upon a post-ofTice packet. vessel liable for, although seized by revenue officers, &c., .... not due for illegal voyage, lien for, when must be enforced. . lien for, exists against the government. . of an apprentice, .... of a slave, ...... when charterer of the vessel liable for. WAR, when it operates to dissolve contracts. WAREHOUSEMEN, to what extent responsible. whether delivery to, destroys the right of stoppage, WARRANTY, of insurance, WASHINGTON, JUDGE, character of, . WEAPONS, DEADLY, what justifies the use of, ..... 93,94 WHALING VOYAGE; owners of the vessel, bound by the acts of their agent for repairs, &c., . . ■ . 362, note 2. WITNESS, when master may be. .... 153,344-346 when mariners may be for each other, . . 344 WORMS, destruction of ship's bottom by. carrier liable for, 264, 309 343 335 . 335, note 3. 339 339, 340, and note 2. . 343 343 343 . 347-352 468, 485 467 . 537 202, note 2. 149, note. i THE END. M UNIVERSITY OF CALIFORNIA LIBRARY Los Angtlcs This book is DUE on the last date stamped below. NOV 2 1973 MGV 1 6 1973 Form L9-Series 4939 ^^ % ^X^^*^ 'MRAKY A'' ('.- ^^'^^i^iM^ ALl»OBl«A ycspuTHfR^RF^,„.;., AA ^00 695 356 "^ -