UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TREATISE ON THE LAW RELATIVE TO MERCHANT SHIPS AND SEAMEN IN FOUR PARTS ; I. OF THE OWNERS OF MERCHANT SHIPS ; n. OF THE PERSONS EMPLOYED IN THE NAVIGATION THEREOF; in. OF THE CARRIAGE OF GOODS THEREIN ; IV. OF THE WAGES OF MERCHANT SEAMEN. Bv CHARLES ABBOTT, OF THE INNER TEMPLE, BARRISTER AT LAW. WITH THE COPIOUS ANNOTATIONS OF JOSEPH STORY, One of the Judges of the Supreme Court of the United States. THIRD AMERICAN EDITION, IMPROVED AY A DIGEST OF AMERICAN DECISIONS SUBSEQUENT TO JUDGE STORY'S NOTES. EXETER, N H. PUBLISHED BY GEORGE LAMSON. J. /. WILLIAMS PHIJfTER. 1822. ~T >\ \ District of New-Hampshire to wit : ^ffrfp^Pfclfc J * L- S. J J3 & IT REMEMBERED, that on the thirtieth Day of July, in the forty - ******* "xth Year of the Imlepi-ndence of tht- UNITED STATES of AMER- ICA, George Lanison of the said District, has deposited in this Office the ti- tle of a Book, the Right whereof he claims as Proprietor, in the Words following, to wit : A Treatise of the Law nialive to Merchant Shins and Seamen : in four parts; 1. Of the owut'rs of Merchant Ships ; II. Of the persons employed in the Navigation thtreof ; III. Of the carriage of goods therein ; IV. Of the Wages of Merchant Seamen. By Charles Abbott, of the Inner Temple, Barrister at Law. With the copious Annotations of Joseph Sstory, one of the Judges of the Supreme Court of the United States. Third American edition, im- proved by a Digest of American Decisions, subsequent to Judge Story's Notes. In Conformity to the Act of the Congress of the United States, intitled, " An Act for the Encouragement of Learning, by tecuring the copies of Maps, Charts and Books, to the An- thortand Proprietors of such Copies, during the times therein mentioned;'' ai:cl also to an Act intitled, u An Act supplementary toaii Act intitled, An act for the Encouraguiient of Learning, by securing th'j Copies of Maps, Charts and Books, to ihcAutliors and Proprie- tors of such Copies during the times therein mentioned ; and extending the Benefits thereof to the Arts of Designing, Engraving and Etching Historical, and other Prints." WTI TTAM n Arr-PT-r S Clerk of the district of CLAGGETT, | N E W . H AMPSH1RE. ^ PREFACE. IjOVSIDERING the great importance of every branch of law relating to Maritime Com- merce, it is a matter of surprise that no treatise on the subjects discussed in the following sheets should have been written by any member of the profession of the law for a very long period of years. It is now more than a century since the first publication of the work of Molloy, the only English Lawyer, who has written on these mat- ters. During that period the law of the country has grown up with its commerce ; many interest- ing points have been argued by able and eloquent Advocates, and decided by learned and enlight- ened Judges ; and some very important regula- tions have been introduced by the Legislature : but very little of useful addition has been made to the collection of Molloy, either by the subse- quent editors of his treatise, or by the other au* thors, who have written on the same topics. Yet the absence of a general and established code of Maritime Law, which almost every other Europe- an nation possesses, seems to render a collection of the principal points of that law peculiarly neces- sary both for English merchants and English lawyers. On the subject of Insurance, this has been already effected. In the present treatise an attempt is made to supply the defect in some other branches. And in order to render the work IV PREFACE. as generally useful as the nature of it will allow, great care has been taken to avoid the use of tech- nical phrases, wherever the form and manner of legal proceedings are not the principal points of consideration. The reader, who is of the profession of the law, may, I fear, sometimes be disgusted at this ; and at other times censure the awkward expressions substituted for the language, to which his ear is familiar, fhe only excuse, that can be offered for the latter fault, is the difficulty of ex- pressing ideas, to which the mind is habituated, in any other words, than those to which we are accustomed : a difficulty, of which the conversa- tion of all persons, who are engaged in any art or science, furnishes daily experience. The treatise now offered to the public is com- piled not only from the text writers of our own nation, and the reporters of the decisions of our own Courts, but also from the books of the Civil Law, and from such of the maritime laws of for- eign nations, and the works of foreign writers, as I have been able to obtain a knowledge of. A fe\v decisions of the House of Lords, are quoted from the printed statements delivered by the con- tending parties and the Journals of the House. Some judgments pronounced by English Judges are also introduced, which have not hitherto been made public ; for the most valuable part of these I am indebted to Mr. Justice Laivrence, and par- ticularly for the cases of Parish and Crawford, Apjileiiy and Pollock, and Day and Searle ; the case of Mackrell against Simond and Hankey was communicated to me by the late Mr. Justice Butter, who, when at the bar, argued it on behalf of the Defendants ; the rest are cited from notes taken by myself or my professional friends. In- deed I am indebted to my friends not only for PREFACE. Y assistance of this kind, bat also for the loan of scarce books, the correction of some errors, and the suggestion of many valuable hints for the improvement of the work. Of the assistance thus afforded me I shall ever entertain the most grate- ful remembrance, and my reader will experience the advantage in many parts of this book. The Ordinances most frequently quoted are those of Oleron and Wisbuy, the two Ordinances of the Hanse- Toivns, and the Ordonnance de la Marine du mois d'Aoust 1681. The Ordinances of Oleron and Wisbuy and the first Hanseatic Ordinance are in the hands of every lawyer : and whenever the Hanseatic Ordinance is mentioned generally, the reader will understand this to be spoken of. The Hanseatic Ordinance of the year 1614 was published with a Latin translation and commentary by Kuricke in a small quarto at Hamburgh in the year 1677. This book is very scarce in this country : the Ordinance itself is arranged and divided, and contains some ad- ditional regulations ; which however are little more than a detail of the principles comprized in the first Ordinance. Reference is also occasion- ally made to such other foreign Ordinances as are to be found in the second volume of Magerfs Essay on Insurances. I have often lamented my inability to consult the earliest maritime code of modern Europe, the Consolato del Mare. There is an old French translation of this body of laws, but I could never meet with it, and I am ignor- ant of the Spanish and Italian languages. When- ever therefore I have referred to this code, the reference is taken from the work of some other author : and it is made for the purpose of giving an opportunity of consulting the original to those, whose superior attainments enable them to do so. vi PREFACE. The Ordinance of Louis the Fourteenth is ]uot- ed from the edition published with a most learn- ed and valuable commentary by Valin in two volumes quarto at Rochelle in the year 1766, and is cited by the name of the French Ordinance. An English translation of the whole of this Or- dinance is contained in a book called, " A gener- al Treatise of the Dominion of the Sea, and a complete Body of Sea Laws," published in quarto in the early part of the last century. The trans- lation is divided into sections, and not like the French of Valin into books and titles ; but the subjects and articles of the sections in the Eng- lish are the same as those of the titles in the French ; and as the latter are always cited in the notes to this treatise, recourse may be had to the English translation with very little difficulty. If the reader should be offended at the frequent re- ferences to this Ordinance, I must request him to recollect that those references are made to the maritime code of a great commercial nation, which has attributed much of its national pros- perity to that code : a code, .composed in the reign of a politic Prince ; under the auspices of a wise and enlighted Minister; by laborious and learned persons, who selected the most valuable principles of all the maritime laws then existing ; and which in matter, method, and style, is one of the most finished acts of legislation that ever was promulgated. The writings of some foreign authors are also occasionally cited ; particularly the Notabilia of Roccus, and the treatises of Pothier and Emerigon. The Notabilia of Rocws are an abstract of the most useful points contained in the works of earlier authors, and in the digest and code of Justinian. Where this author is cited generally PREFACE. Vll the reference is to the Notabilia de Navibus et Naulo. The treatises of Pothier are remarkable for the accuracy of the principles contained in them, the perspicuity of their arrangement, and the elegance of their style. The treatise of Eme- rigon is peculiarly valuable for its extent of learn- ed research, and the numerous and apt citations of the texts of the Civil Law and of the Marine Ordinances, the opinions of former writers, and the adjudications of the courts of Justice of his own country, which are to be found in every part of it. It should be observed, however, not only of all these treatises, but also of the Civil law, and the Ordinances, without excepting even the Ordi- nance of Oleron (which, being considered as the edict of an English Prince 1 , has been received with peculiar attention in the Court of Admiral- ty), that they have not the binding force or au- thority of law in this country ; and that they are here quoted, sometimes to illustrate principles generally admitted and received ; sometimes to shew the- opinion of learned persons, and the rule adopted in maritime nations upon points not hitherto settled by the authority of our own law ; and at other times to furnish information, that may be useful in our commercial intercourse with foreign states. In the composition of this treatise my object has been rather to arrange and illustrate princi- ples, than to collect the decisions of Courts or the Acts of the legislature. The cases therefore are, with a few exceptions, stated in a concise manner ; and the clauses of Acts of Parliament are abridged, whenever an abridgement seemed likely to to be as satisfactory to the reader as a transcript. Of the institutions of written law V1H PKEFACE. the precise words are often necessary to a right understanding of the intention of the lawgiver. I should have saved myself much both of time and labour, if I had copied more and abridged less. There are few reported decisions of our Courts of Justice, from which some useful principle may not be extracted ; and I have therefore searched the books of reports with much assiduity. Nev- ertheless I am apprehensive that some valuable cases may have escaped my attention ; and I shall feel myself greatly indebted to any one who will point out to me such omissions of this kind, as may fall under his notice, or acquaint me with any other defects or errors, that he may observe. Relying on the kindness of those, who may peruse the book with a friendly disposition to its author, and the candor of those, who may look into it for the sake of information alone, I now offer it to the Public, and to the Profession of which I am a member, with a sincere desire that it may be found useful to both. C. ABBOTT. Inner Temple, Jan. 25th, 1802. ADVERTISEMENT SECOND AMERICAN EDITION WHICH FIRST CONTAINED JUDGE STORY'S ANNOTATIONS. 1 HE work of Mr. Abbott, which is now re- printed, has acquired a deserved reputation for accuracy and extent of information. The snb- ject is equally interesting to the lawyer and the merchant ; to the statesman and the private gen- tleman. Whoever wishes well to the commerce of our country : whoever wishes to comprehend the advantages resulting from the timely patron- age of government in maritime concerns : who- ever wishes to learn the ancient as well as the modern systems of commercial monopoly or free navigation, will not rise from the perusal of this work without receiving light and instruction. In preparing the present edition, the object of the editor was to collect cases and principles which have been discussed or settled in the courts of the United States, relative to the law of ship- ping. Sometimes he has contented himself with a bare statement of the point ; at other times he has stated the facts and the opinions of the court at large. The importance of the question, or the ability with which it has been investigated, have been his general guides in this particular. Generally the foreign authorities quoted have been stated as he found them in the reports. In a few instances, however, he has recurred to the originals within his reach, in which he includes Valin, Emerigon and Straccha. He aspires to no other claim than that of an accurate selection from the labors of others. He wishes to be con- 2 X ADVERTISEMENT. sidered as in no instance expressing his own opin- ion ; but as barely pointing out the path marked by judicial decisions or explored by elementary writers. In some few cases he has added English au- thorities which were not noticed by Mr. Abbott, or have been published since the last edition of his work. Salem, A. D. 1810, CONTENTS. PART THE FIRST: OF THE OWNERS OF MERCHANT SHIPS. PAGE CHAP. I. Of the Owners of Ships, in general 1 [1] CHAP. II. Of Property in British Ships 26 [29] CHAP. III. Of Part-Owners 82 [103] PART THE SECOND: OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MER- CHANT SHIPS. CHAP. I. Of the Qualifications of fhe Master and Mariners 101 [122] CHAP. II. Of the Authority of the Master, with re- gard to the Employment of the Ship 112 [131] CHAP. III. Of the Authority of the Master, with regard to Repairs and other Neces- saries furnished to the Ship 124 [142] CHAP. IV. Of the Behaviour of the Master and Mariners 160 [183 CHAP. V. Of Pilots 180 [212 PART THE THIRD : OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS. CHAP. I. Of the Contract of Affreightment by Charter-Party ' 184 [216] CHAP. II. Of the Contract for Conveyance of Merchandize in a General Ship 215 [246] CHAP. III. Of the general Duties of the Master and Owners 220 [251] CHAP. IV. Of the Causes, which excuse the Mas- ter and Owners 248 [287] CHAP. V. Of the Limitation of the Responsibility of the Owners " 260 [297] GH AP. VI. Of the general Duties of the Merchant 26 7 [304] X CONTENT!. CHAP. VII. Of the Payment of Freight 271 [308] CHAP. VIII. Of General or Gross Average 325 [375] CHAP. IX. Of Stoppage in Transitu 351 [402] CHAP. X. Of Salvage 381 [431] CHAP. XJ. Of the Dissolution of Contracts for the Carriage of Goods in Merchant Ships 404 [454] PART THE FOURTH: OF THE WAGES OF MERCHANT SEAMEN. CHAP. I. Of the Hiring of Seamen 413 [461] CHAP. II. Of the Earning and Payment of Wages 423 [473] CHAP. III. Of the Loss and Forfeiture of Wages 443 [507] CHAP. IV. Of Proceedings to obtain the Paymer. f of Wages 457 [528] APPENDIX. No. I* Form of a Bottomry Bond 543 No. II. Form of a Bottomry Bill 544 No. III. Form of a Respondentia Bond in the East India trade 546 No. IV. Form of an Hypothecation of Ship and Cargo 548 No. V. Shipping Articles of Seamen in England 550 No. VI. Stipulation in the Admiralty for the return of a Ship No. VII. Form of a Charter-Party in the United States No. VIII. Shipping Articles of Seamen in the United States 555 No. IX. Form of a Bill of Sale of a Registered Ship in the United States 558 No. X. Form of a Bill of Sale of an Enrolled Ship in the United States 559 No. XI. Acts regulating Ships engaged in foreign and do- mestic trade and the fisheries in the U. Slates 560 No. XII. Acts regulating Seamen in the Merchants' service and fisheries in the U. States 605 No. XIII. Acts respecting Consuls and for the relief and protection of Seamen in the U. States 616 No. XIV. Act regulating Salvage in cafes of recapture in the U. State* 633 INDEX CASES CITED. ACCORDING TO THE PAGES OF THE ENGLISH EDITION. A. ABERNETHY v. Landalc Addis v. Baker Addison v. Ovcrcnd (Opyv.) Aeretree 'Lamberttv.) Alers v. Tobin Alleson v. Marsh Plills v.) Ballam (Justin v.) America, Sherborne (case of ship) 280 Amies v. Stevens 258 Anderson (Camden v.) 71 (Hammond v.) 364 v. Pitcher Page 440 10 93 468| 74, 151 89JBarber v. Wharton 461 243 Barclay (Pickering v." 253,254 460 Baring v. Day 383, 398 Page 360, 380 136 Barbara,C/iegu-m, (case of ship) (Teed v.) 100 Barnardiston v. Chapman 87 (Watkinson v.) 137 139 Barton v. Wolliford T" . in ... * ' Ansley (Blacket v.) Appleby v. Dods Appleby v. Pollock Armstrong v. Smith Artaza v. Smallpiece Astcock (Bird v.) Atkinson v. Maling Atty v. Parish Atwood (Buck v.) A ad ley v. Duff A vies Stanley v.) B. Backhouse (French v.) v. Ripley 254 213, 235 Batson, Ex parte ' 10, 11 8 Bawden t'Hernaman v.) 444 151, 155 Andrews v. Glover Anne, Lord (case of ship) 280 Baxter (Lister v.) 89'Bayley v. Grant 433JBeal (Hunter v.) 368iBeale v. Thompson 430 277 329 10 187 469 235 98 Beatson v. Shank 460 360 272, 425 435, 447,455 191 Beaver, Grierson (case of ship) Benn (Brown v.) Bennet (Buggin v.) 425 461 463 - (Garnam v.) 127 Bens v. Parre 460, 462, 463 Benzen v. Jefferies 155 Bergstrom v. Mills 296, 440 344 1 Bernard (Coggs v.) 223 1 87|Bernadiston (Watkinson v.) 1 37 Backe (Wilkcs v.) Baillie v. Moudigliani 292, 307 Bainbridge ' Mills v.) 283 Baker 'Addis v.) lo| Betsey \Kn5(er (case of ship) 1C Ball (Caldwell v.] 370, 379jBcyer v. Tomlinson 255 3 Berry (Knight v.) 139 88 XIV INDEX OF CASES CITED. fage Bcwicke (D'Eguino v.) 234 Birch (Paul v.) 194,203 Bird v. Astcock 329 Birkley v. Presgrave 330, 334 335, 351 Black ;Glover v.) 150 Carlotta, Blackburne (Chinnery v.) 16| ship) v. Grcgson C. Page Cnldwell v. Ball 370, 379 Campbell (Wright v.) Catndrn v. Anderson Cappadose v. Codnor Cappes (Tucker v.) 369 71 59 343 Posquel Blacket v. Ansley 89 Blakey v. Dickson 273 Blanchard (Kcmlcr v.) * 182 Blight v. Page 407, 408 (case of 404 353 Carniichael (Wilkins v.) 140 Carter (Hibbert v.) Cary v. White Case (Falkner v.) Catley v. Wintringham Bloxham v. Hubbard 65, 70|Cazalet ;Newman v.) Bohtlingk v. Inglis 356, 360 Boson v. Sandford 85, 1 1 3, 1 1 8 Bovil (Oddy v.) Boucher v. Lawson Bowers (Fearon v.) Boyce v. Cole Boyfield v. Brown Braddick (Fletcher v.) Bragington (Samsun v.) Brander (Young v.) Brandon v. Curling Bridgman's ccwe, Bright v. Co wper Chandler (Dimmock v.) Broderick (Johnson v.) Brown v. Benn Brown (Boyfield v.) (Justice v.) 232 161 153 72 411 155 312,315 710//.9. 451 Chapman (Barnardiston v.) 87 Chapman (Read v.) Charnock (Jackson Charnock (Moss v.) Child (Cooker v.) (Edwards v.) (Opy v.) (Sands v.) Chinnery v. Blackburne Chippenden (Doo v.) Christie, Ex park Buck v. Atwood v. Rawlinson Buggin v. Bennett Buller v. Fisher Burghall v. Howard Burleigh (Leigh v.) Burnis (Rea v.) Busk v. Fearon Butler v. Woolcot Buxton v. Snee Byrne v. Pattinson 461 282 87 469 431, 432 463 253, 255 342 357 135 188 149, 150 359 127,140 v. Grieves v. Meade 370 128 10 247 335 89 424 445 16 119 380 Chapman (Read v.) 460 284 Charnock (Jackson v.) 338 62 188 431 464 98 16 92 99 (Watson v.) 162,163 Christopher Slyboom (case of ship) 16 Clagget (De Garay v.) 235 Clarke (Hadleyv.) 408 Clay v. Sudgrave, or Snell- grave 460 Cleeve (Victorin v.) 238 Clement v. Gunhouse 415.471 (Hoare v.) Clements v. Mayborn Glinka rd (Goff. v.) Cloberie (Constable v.) 1 ochran v. Retbergh Codnor CCapadose v.) 319poe (Rich v.) 135 426 227 204 196 59 125, 134 INDEX OF CASES CITED. Coggs v. Bernard Cole (Boyce v.) (Kerrison v.) Page 223 284 80 \ / Commissioners of the Customs (the King v.) 67 Constable v. Cloberie 204 Page De la Torre (Marshall v.) 214 Del Mohr,f/t/wer (case of shi'p) De Silva (Smith v.) Despard ;Wilkinsv.) Dick v. Lumsden 399 94 109 376 Constant Mary (case of shipsDickenson Dockwray v.) 98 14 Dickson (Blakey v.) 273 Cook v. Jennings 308 Cooker v. Child 188 v , , ._. Copenhagen, Mening, (case ofjDock\vray v. Dickenson ship) 279, 307, 333JDoddington v. Hallet Dimmock v. Chandler 89 Ditchell (Rinquist v.; 122,216 Copley (Cilby v.) Cor ban v. Downe Corset v. Husely Covington v. Roberts Coutts (Gillespie v.) Cowper (Bright v.) Coxe v. Harden Cradock's case Crawford (Parish v.) Cuff (Pratt v.) Curling (Brandon v.) v> Long Curtis v. Perry 188 226 155 334 10 notis. 365,375 135 21 447 411 272,314 Customs Commissioners of(the King v.) 57 Cutter v. Powell 429 D. Da Costa v. Newnham 333 335, 338 Dale v. Hall 241 Dale (Westerdell v.) 20, 59 98 95 433 213 92 Dods (Appleby v.) Donaldson v. Forster Doo v. Chippenden Dorothy Foster, Sozuden (case of ship) Downe (Corban v.) Duff (Audley v.) (Long v.) 384 226 235 55 248 Dunnage v. Jolliffe Dutrey (Marsham v.) 334, 351 E. v. Thorn Eaken East India Comp. Davis (Farmer v.) Day (Baring v.) v. Serle D'Aquila v. Lambert D'Eguino v. Bewicke De Garay v. Clagget Degrave v. Hedges (Speering v.) 444 (Edwin v.) 268 East India Comp. (Ekins v.) 3 (Gordon v.) 10 East India Comp. (Hotham v.) 207, 282 (Hume v.) 212 (Lady James v.) 275 (Lewin v.) 269 [Tod \.] 211, notis Jaques 1 9 " .] 424,426 Child 431 268 71, 134 Eaton 125, 134 i Eden [Paul 383, 498 Edwards v, 365 Edwin v. E. I. Comp. 234 235 89 127 Ekins v, E. I. Comp. 3 Eleonara Catharina, Kreagh [case of ship] 404 Ellis v. Hunt " 361 v. Turner 320 XVI INDEX OF CASES CITED. Rls worth v. Wool more Env.mnel, Soderstrom (case of Garside Page] 423|Garnam v. Bennet Trent & ship) Evans \ . Marlett (Stone v.) v. Williams Ewer (Lilly v.) 280 367 19 127 235 Exeter, the ship (Robinet v.)' Navig. Comp Page 127 Mersey 258 Gibbons (Menetone v.) 151 153, 155,469 F. Falkner v. Case Farmer v. Davis v. Legg Gibbs (Oxenham v.) 57 Gicnar v. Meyer 440 Gilby v. Copley 188 425, 457 Gillespie v. Coutts 10 ! v. Mestaer 61, 75. 78 lO.Gilpin (Horn v.) 87 125, 134|Gist (Manning v. 235 1 03 Glover v. Black 150 Favorite,.De.7o-sei/(caseof ship'' v. Andrews Fearon v. Bowers (Busk v.) Felton (Ward v.) Field .'Northey v.) Fiese v. Wray 460, 469|Goffv. Clinkard 380 Gordon v. E. I. Comp. 149, 150 277 364 Fisher(Buller v.) 253, 255,342 358, 359 Grant (Bayley v.) 15 161 245 114 ship) 144, 155, Graves v. Sawcer Gregory (Mills v.) 157, 240, 242, 333 86 461 ship) Fletcher, v. Braddick Flight (Soldcrgreen v.) Footmore (Richwood v.) Forster 'Donaldson v.) 21 SJGregsqn [Blackburn v.] 353 Fortuna Tads en ^case of ship) Grey [Lutwidge v.] 282,301 281 Grieves [Chandler v.] 424 Forward v. Pittard 249, 258iCunhouse [Clement >.]415.471 v. Morley Goss v. Withers Graham v. Hall (Helley v.) 227 10 233 13 260 460 260 Flad-Owen, Martinson (case of Gratitudine, Mazzola (case of 1 V 1 * Fowler v. M'Taggart 361 Foyle (Thomas v.) 73 Friends, LW/(case of ship) 445, French (Robertson v.) y. Backhouse 446 73 92 Frontine v. Frost 453, 454, 455 Frost (Frontine v.) ib. Full v. Hutchins 463 Furtado v. Rodgers 411 G. Galini (Longman v.) Gamba v. Le Mesurier Gurney [Hall v.] 10 Hadley v H. Clarke 408 358, 373 . 241 260 10 Hallet [Doddington v.] 95 141 304 Hailey v Smith Hall [Dale x .] [Graham v.] v. Gurney Hallet [Dodding^., IT a mil ton [Wood v.] Hammond v. Anderson (Harden [Coxe v.] 258|Harris v. Watson 41 II Harrison v. Jackson 365. 375 423 INDEX OF CASES CITED. XVII Ilartfort v. Jones H ivelockv. Rockwoocl Hay (Syeds v.) Hayman v. Moulton Hayton v. Jackson Heath v. Hubbard Hcbden {'Ousten v.) Hedges (Degrave v.) Heitinari (Hulle v.) 440 Hclena.HGO!Kcrrison v. Cole ib.JKidd (Captain) case of 92JKierlighett, Spoercwi* (ca -iup) 411 182 80 163 =e of 15 XVIII INDEX OF CASES CITED. Page King v. Perry 88. notis v Player 4G n Page [Marlett (Evans v.) 367 Marsh (Allenson v.) 460 Marshall v. De la Torre 21 1 Marsham v. Dutrey 334, 351 Mason (Lickbarrow v.) 371 ... . ... v Slnirmv 8 (Ragg v.) ib. Kneeland (Rich v.) 226 Knight v. Berry 88 Lit Lacy (Rodgers v.) 422 Lambe (the King v.) ' 183 Lambert v. Aeretree 89 (D'Aquila v.) 352 Landale (Abernethy v.) 440 Lannoy v. Werry 199 La Riviere (Stokes v.) 360 Laurie (Jamieson v.) 142, 202 Law v. Hollingsworth 181 Lawson (Boucher v.) 119 Legendra (Jeffrey v.) 235 Lr<;g (Farmerv.) 103 Leigh v. Burleigh 1 35 Le Mesurier (Gamba v.) 411 Matthews, Ex parte 10 May born (Clements v.) 426 Meade (Chandler v.) 445 Meadows (Ratchfcrd v.) 67 Mells (Lyon v.) 225 Menetonev. Gibbons 151, 153 155, 469 Mcrcurius, Meincke (case of ship) 279 Mestaer (Gillespy v.) 61, 75, 78 Meyer (Gienar v.) 440 Milles v. Bainb ridge 283 Mills v. Ball 360, 380 fRprc ^ I Rollestonv. Hibbert 58 XX INDEX OF CASES CITED. Rolleston, (Hibbertv.) * . Smith Rose, You /iff (case of .ship) 280 Ross N.Walker 183 Rowbotham (More v.) 89 Rush (Horsley - .) 186 Russel (Openncim v.) 359 S. Salmond (Shubrick v) 207 Samsun . Bragington 153 Sanford (Boson v.) 85, 1 13, 1 18 Sands \ . Child 98 (Thermolin v .) 14 San Jago (case of ship) 403 Santa Cruz (case of ship) ib. Savvcer (Graves v.) 86 Scarborough v. Lyrus 155 Scott ^ . Pettit 360 Scudamore v. Vandenstene 187 Seclgworth i. Overend 98 Serle (Day \ .) 465 Shank, Exparle 140 (Beatson v.) 191 Shepherd (Smith v.) 249, 257 v. Wright ' 351 Ship America, Sherborne 280 Anne, Lord ib. Barbara, Chegwin 74, 151 Beaver, Grierson 425 Betsey, Kruger 1 6 Carlottq, Pasqucl 404 Christopher, Slyboom ib. Constant Mary 14 Copenhagen, JVew'nff 2 7 9, 307, 333 Del Mohr, Helnter 399 Dorothy Foster Smcdtn 384 Elconora Catharina, Kreagh 404 Emanuel, Sodcrstrcm 280 Exetej i^Robinet v.) 425, 457 Page Ship Favorite. De Jersey 460, 469 Flad-Oyen,.A/ar/mson 15 Fortuna, Tadscn 281 Fortuna, Quest 385 Friends. Bell 445, 446 ' Gratitudine, Mazzola 144, 155, 157, 240,242, 333 Helena, Heslop 13 Henrick CIA i Q Tresilian (Tremenhere v.) 2 Tucker v. Cappes 343 Turner (Ellis v.) 1 20 Turpin (Robinson v.) 248 V. & U. Vallejo v. Wheeler 127 98 10 Vandenstene 258 360 19. notis 86, 87 203 Sudgrave orSnellgrave(Clay v.) 460 265 359 247 203 Sutton v. Mitchell Sweet v. Pym Syeds v. Hay Teed v. Baring Tennant (Struck v.) Theresa Bonita De Jong (case of ship) 277 Thermolin v. Sands 14 Thomas v. Foyle 73 Thorn (Eaken v.) 444 Thompson (Beale v.) 272, 425, 25 (Scudamore v.) 187 Vandeput (Wiseman v.) 352 Vander Deyl ( Myer v.)344,35 1 Veedon v. Wilmot 238 Vernon (Jackson v.) 19 Victorin v. Cleeve 238 Usherwood (Inglisv.) 355 Vrouw Margaretha, Jacobs (case of ship) 385, 387 W. Walker (Ross t .) 100 Walley v. Montgomery Walters (Newman, v.) Ward v. Felton Ward v Hunt v.) Wardell v. Mourillyan Watkinsonv, 183 358 386 277 360 247 Bernardistonl37, 139 Watson v. Christie 1 62, 1 63 (Harris v.) 423 XXII INDEX OF CASES CFTED- Page Webb v. Thompson 235 Wells v. Osman 434, 461 Werry (Lannoy v.) 199 Westerdell v. Dale Westland v. Robinson Wharton (Barber v.) Wheeler v. Thompson (Vallejo v.) White (Gary v.) v. Wilson Wiggins v. Ingleton Wight, Ford (case Wimelmina, Carlson (case of ship) Wilkes (Penrose v.) v. Backe Wilkins v. Carmichael v. Despard William Beckford, Muirhead (case of ship) 384 Williams (Evans v.) 127 Page , 238 325 423 86,87 Wilmot (Veedon v.) Wilson (Smith v.) (White v.) 20, 59. Winson (Strelly v.) 71, 134 Wintringham (Catley v.) 247 275 Wiseman v. Vandeput 352 461 Withers (Goss \.) 13 460 Wolliford (Barton v.) 254 25 Wood v. Hamilton 141 1 28 (Trent &, Mersey Navig. 423 Comp. v.) 242, 249 426 Woolcot (Butler v.) 359 of ship) 402 Woolmore (Elsworth v.) 423 Wrangham (Ogle v.) 92 280 Wray (Fiese v.) 358, 359 276 (Siffk'in v.) 356, 358 1 87 Wright v. Campbell 369 1 40 v . Hunter 92 109 (Shepherd v.) 351 Y. Young v. Brander 72 (Joily v.) 276 INDEX TO THE NAMES OF CASES CITED IN THE NOTES, ACCORDING TO THE PAGES OF THE PRESENT EDITION. A. Page ABERNETHY v. Landale 492 The Anna Catherina TheAquila 452 The Amor Parentum 452 Chandler v. Greaves 244[Cheviot v. Barker Appleton v. Crown inshield 182 Atkins v. Burrows 193, 525, Atkinson v. Ritchie B. Baring v. Christ^ 540 222,315 264 Baring v. Roy. Exch. Assur. Company * 263 Baring v. Claggett 263 Barker v. Blakes 261 Cheviot 350, 367 Barneso v. Madan 227 Beale v. Thompson 310,478 Bell v. Smith The Beaver Bergstrom v. Mills 510 Bhck. v. ship Louisiana 191, 193,525 314 Blaine'v.ship Charles 149, 181, 539 Bordman v. the Elizabeth 512 Blakoy v. Dixon Page 466 34,311 280 272 359 408 121 368 524 168 414 Fair Amer. 527 502 149,175 424 373 121 323 184 323 415 Dixon v. The Cyrus 525 Dorr v. N. E. Mar. Insur. Com- v. Brooks Codwise v. Hacker Constable v. Cloberie The Constantia Coope v. Eyre Cook v. Jennings Cotel v. Milliard Corish v. Murphy Coxe v. Harden Crammer v. The Cramnar v. Gernon Cupisino v. Perez Cuming v. Brown D. 396 Davy v. Hallet 452 Del Col v. Arnold The Der Mohr Die fire Darner The Diana Dixon v. Battier pany 337 Bradish v. the Friendship 527jDunnett v.Tomhagen 337,497, Breed v. ship Venus 175, 180. 511 336 Duncanson v. M'Clure 18, 74 Brooks v. Dorr 507, 510, 540 E. The Bremen Flugge 322,Eades v. Vandeput Busk v. Fearon 169'Eaken v. Thorn C. (Earle v. Rowcroft Castlehunt v. Syford 524jEd\vards v. Child XXIV INT)EX OF CASES CITED IN NOTES. F. Page Farrell v. M'Clea 466, 540 Findley v. Ship William 20 Fletcher v. Braddick 33, 215 The Fortuna 323 The Franklin 262, 452 Frith v. Barker 329 The Frederic 462 Frothingham v. Prince 497 The Friends 511 G. Garrels v. Kensington 196 Gardner v. Ship Jersey 1 52, 161, 189,464 Gienar v. Meyer Giles v. Brig Cynthia 311,314, 315,484,497,501,507 Page The Hoffhung 309, 350, 351 Hodson v . Butts 23,151 Hool v. Groverman 30 Hooe v. Mason 337 Horncastle v. Suart 360 Rowland v. Ship Lavinia 350, 479, 511 Hudson v. Guestier 16, 18,450 Hunter v. Prinsep 178, 245, 276, 350 Hulle v. Heightman 193, 474 Husscy v. Christie The Huntress I. 151, 155 452 475 Izett v. Mountain Glass v. Sloop Betsy Geyer v. Mitchell Goix v. Low Goodridge v. Peabody Goom v. Jackson Griswold v, N. Y. Insur. Com- 17, 20 Jackson v. Winchester 264 Jennings v. Carson 491 307 pany H. 333, 338 The Jose'ph The Jonge Tobias The Jonge Magaretta Jones v. Insur. Comp. of N. Hastings v, Ship Happy Re- turn 200.481.505 Hayman v. Moulton 7 Have lock v. Hanoile 196 v. Geddes 221, 369 Hart v. Little John 477, 51 1 Hannay v. Eve 280 Hanson v. Meyer 283 Hall v. Cazenove 359 Hammond v. Anderson 415 The Haase 452 Heath v. Hubbard 107 Hernaman v. Bawden 503 Hindman v. Shaw 493 The Hiram 338 Hoare v. Dawes-* 120 Jameson v. The Regulus 464 The Jacob 170, 181 -v. Sims 215 479 121 436 262 262 America 388. 475 Johnson v. Walterstorff 484 v. Sims 489, 507 v. Ship E;iza 525. 541 K. Karassan 121 Kean \ . The Gloucester 474 Kingston v. Girard 388, 389, 475 Knight v. Cambridge 195 Knap \ .TheEliza & Sarah 527 L. Lane v. Penniman !Le\vis \ . Davis 151, 309 526 Leatham v. Terry 92, 372 Leavenworth v. Delafield 373, Hoyt v. Wildfire 465, 474, 492, Leeds r. Wright 508, 541 iLemart v. Strout 389, 395 410 191 INDEX OF CASES CITED IN NOTES. XXV Page Lingstrom v. The Hazard 477,'Murgatroyd v. M'Lure Limland v. Stephens 475, 500, 1% " Livingston v. Company Liddard v. Lopes 506, 518 Colum. Insur. 373 347, 368 Lothian v. Henderson Luke v. Lyde 347, 358. 368, 484 Lyon v. Mills 257 M. Maggrath v. Church 380, 395 Mumford v. Hallet Page 74 373 N. Natterstrora v. Newsom v. Thornton The New Draper The Neutralitat The Neptune Nicholson v. Willan O. Oliver v. Green Ship Hazard 466, 480 424 184 262 262 256 Mayhoon v. The Gloucester Orne v. Williams 474 P. 540 Penhallow v. Doane Malone v. Bell Marsh v. Robinson 97 33 191 16,121 Marshall v. Montgomery 475, 503 The Mary Ford 452 Mason v.Ship Blaireau32, 273, 434, 437, 452,498 May vrn v. Coulson 74 Maxwell v. Robinson 273 Mitchell v. The Orozembo 526 Miller v. Ship Resolution 1 6 Milward v. Hallet 1 49, 1 5 1 , 3 1 7 Millett v. Stephens 484, 490 McCarthy v. Abel M'Donough v. Dannery . Ship Mary Ford 372 20 20 M'Intire v. Brown 31, 196 M'Quirk v. The Penelope 507 Montgomery v. Henry 1 84, 530 Morgan v. Insur. Comp. of N. America 319 Moody v. Ship Alfred 20 v. Ship Phoebe Ann 20 Moss v. Byrom 196 Moffat v. East India Comp. 242 Moxen v. Brig Fanny 20 Moran v. Baudin 493 Penny v . N. Y. Ins. Comp. 388 Perry v. Peggy 531 Phyn v. Roy. Ex. Ins. Comp. Pinto v. At water 196 337 Post vRobertson 335, 347, 358, Purviance v. Argus 434 183 Putnam v. Wood 222, 253, 370 Q- Quirk v. Ship Penelope 493 R. Raine v. Bell 274 Rex v. Castlechurch 526 Relf v. Ship Maria 191,193 Reade v. Com. Insur. Comp. 34, 149, 175, 181 v. White 1 20 Rice v. The Polly & Kitty 474 Ritchee v. Atkinson 222, 3 1 5 Rinquist v. Ditchell 247 Robinson v. United In. Comp. 34 v. Ewer 1 96 v. Mar. Ins. Cemp. 337 Himely 15,18 Rose Mulloy v.Baker 337, 347, 350,| Robertson v. Bethune 244, 264 369iRohl v. Parr 294 XXYI INDEX OF CASES CITED L\ NOTE*-. Page RucherV. Conyngham 149. 173,178, 180 S. Saloucci v. Johnson 1 96 Sarah Christina 262 Sansom v. Ball 311 San Bernardo 452 The Sansom 452 Schmit v. United Ins. Comp. 34 Scott v. The Greenwich 479 Scott v. Pettit 411 Scottin v. Stanley 113 Scott v. Libbey 319, 337, 368, 456 Seton v. Low 259 Sharp v. Gladstone 372, 388 Silva v. Low 257, 264 The Sisters 94 Sigard v.Robcrts 474, 500, 506. 517 Singstrom v. The Hazard 512 Sims v. Mariners 518 Slight v. Hartshorne 36, 80 Smith v. Elder 304 v- Wright 393 Snellv.Rich 215 Sodergreen v. Flight 283 Speering v. De Grave 121 Splidt v. Bowles 374 Speyer v. N. Y. Ins. Comp. 389 St. Juan Baptista 184 Stamma v. Brown 195 Staadt Embden 262 Stitt v. Wardwell 274 Strong v. Natally 286 Sutherland v. Lishnan 465 T. Talbot v. Janson 1 9 Y.Three Brigs 121, 184 v. Seaman 432, 434 v. Ship Amelia 452 ' Page Taylor v. The Cato 497, 507 The Thames 184,215 The Theresa Bonita 284 The Two Friends 436, 452 The Tutela 457 Thome v. White 191, 193, 525, 527 Thompson v. Taylor 360 v Rmvrmft 372 .. , v pnllirr *j 7 Thurston v.Col. Ins.Comp. 272 The Tobago 181 The Twilling Riget 322 U United States v. Peters 19 VSViin A nlhnn v Maugin 75, 129 Unked^States v.Willings,&c.78 . ,. XT IWorrill 1 Q v Tnhm 00 United Ins. Comp. v. Robinson 34 . .. v Srntt 14 9 121, 149, 178 v Lenox 337 373 V. Vallejo v. Wheeler 195 Vandcrheuval v. Unit. In.Com. 389 The Vanguard 472 The Vrow Henrica 322 Anna Cathcrina 323 ......... IVlarcrarctha 45^ Walden v. Le Roy 386 Walton v. Ship Neptune 209, 479, 481 Wain wright v. Crawford 144, 149 Watson v. Duykinck 313 INDEX OF CASES CITED IN NOTES. XXVII Page Watson v. Ship Rose Weeks v. Catherina Maria 497 Weiberg v. The St. Oloff 474 The Weldborgaren Wheelwright v. Depeyster 1 6, 18 Whitton v. The Commerce 525 White v. Baring 151, 283 Whitman v. The Neptune 540' Wilkinson v. Frazier 462 Page 477 Willingson v.TheForkoset 475, 501 The William Beckford 452 352 The William 215 Williams v. Smith 337 Willings v. Blight 111 Williams v. Brig Hope 466 Wilmer v. The Smilax 166, 180 Wilson v. The Belvidere 527 Wolfv. Brig Oder 491 Worth v. Viner 481 Addenda to Abbott on Shipping. OWNERS OF SHIPS. In Page \ 1 . Sect. 5. A bona fide sale of a ship and cargo at sea is valid against all the world, provided the vendee use reasonable on the return thereof to take possession. Portland Bank v. Stacey, 4 Mass. Rep. 061. If a ship be wrecked in a foreign port and abandoned, and afterwards sold by the government of that country, according 1 io the laws thereof, the purchaser acquires a good title against nil the world. Grant v. M'Lachlin, 4 John. Rep. 34. GENERAL AVERAGE. After note l.p. 383. The doctrines here stated, seem ful- ly supported by a recent decision in Massachusetts, in which the court held, that upon an involuntary stranding, where the ship was abandoned and a part of the cargo was saved in the ship's boat, the owners of the cargo abandoned were not en- titlecHo a general average. And in the same case, a part of the goods saved in the boat, having been thrown overboard to save the lives of the crew ; they further held that the owners of the goods thrown overboard were not entitled to a general aver- age. Wittredge v. Norris. Essex, November Term, S. J. C. 1809. MSS. After note 1. p. 386. The wages and provisions of the crew,during a detention to repair at a port of necessity, were adjudged a general average in Padleford v. Boardrnan^ 4 Mass. Rep. 548. LOSS AND FORFEITURE OF WAGES. After note l.p. 510. The principle of this decision was admit- ted in its fullest extent by Judge Davis, in a recent case. A ship was captured and recaptured.and a seaman taken out not being' able to rejoin the ship, after he was released, he returned to the United States, and the ship having in the mean time complet- ed her voyage, brought his libel for full wages. It appearing that he had not earned wages in any other employment, the learned Judge, after argument, and taking time to consider, decreed to the seaman full wages up to the time of his return to the United States, deducting therefrom his proportion of the salvage paid to the recaptors. Williams v. The Brig March T. 1809. District Court of Massachusetts. MSS. PART THE FIRST. CHAPTER THE FIRST. QF THE OWNERS OF SHIPS, /JV QEJYESJL. 1, f_fNE or more persons may acquire the property of a Ship by building it at their expense, or by purchasing it of another, who has authority to dispose of it. Upon the death of the owner, his interest devolves upon hia executors or administrators, his personal representatives. In the case of purchase, however, it is necessary that the person, who takes upon him to sell, should have power to do so ; for although a sale of other goods by the person, who is in possession of them, does in many cases vest the property in the buyer, even when the sel- ler himself has neither property in them, nor authority to dispose of them, the same cannot take place with re- spect to ships, as there is no open market for the sale of them. Indeed this species of property appears from very early times to have been evidenced by written doc- uments, and at present always is so, which other move- 6 2 PART I. CHAP- I. able goods rarely are ; and therefore (be bujer has in this instance (be means of ascertaining the title [ 2 ] of any person, who offers to sell, and can seldom be deceived, except by bis own fault. (1) 2. The master of a ship possesses, as more fully ap- pears in different parts of this treatise, every power nec- (1) The words of Sir W. Scott, in a case of possession of a foreign ship before him, are too remarkable to be here omitted. " It has been contended in argument that the effect of a bill of " sale alone would not be material, because this was a foreign u ship, in respect to which it might not be requisite that it ;l should pass by a bill of sale. It is said that the agreement :; to be found in these letters (i. e. in that case) and the actual " delivery under it, would be sufficient to establish the equitable " title ; and a reference has been made on this subject to some " opinions at common law, which are said to have been givea il in favour of such a title. The opinions of gentlemen at that rt bar must undoubtedly be entitled to entire respect on a ques- ;t tion of municipal law. But this is a question of a more gen- " eral nature, arising out of a system of more general law out " of the universal maritime law, which constitutes a part of the " professional learning of this court and its practisers. Ac- " cording to the ideas which I have always entertained on thid " question, a bill of sale is the proper title to which the mari- " time courts of all countries would look. It is the universal a instrument of transfers of ships in the usage of all maritime u countries, and in no degree a peculiar title, deed, orconvey- lt ance known only to the law of England. It is what the " maritime law expects, what the Court of Admiralty would in u its ordinary practice require ; and what the legislature of this " country has now*made absolutely necessary with regard to " British subjects by the regulations of the statute law." The Sisters. 5 Rob. Adm. Rep. 155. [138]. OWNERS OF SHIPS. f essary for the employment and navigation of the ship ; but he has not, unless in a case of extreme necessity, authority to sell the ship. And with a view probably to prevent the opportunity of fraud, which the allowance of this power to him might afford, several of the for* eign (a) ordinances expressly declare, that he shall not sell the ship without a special authority for that purpose, from the owners ; at the same time, however, authoriz- ing him, in case of necessity, to borrow money upon the credit of the ship or its furniture, with the assent of his crew. And in conformity to these regulations, Sir Matthew Hale, when Chief Baron of the Exchequer, is reported to have decided upon a (6) case referred to, and argued before him, that the sale of a ship by the master did not convey the property to the buyer, al- though the sale was made in a foreign country, in a case of inevitable danger, the ship and tackle being beaten and broken, and no hope of saving any part of them, partly on account of the tempest, and partly on account of the barbarity of the inhabitants of the [ 3 ] country, who carried off every thing that was cast on shore. Perhaps, however, there might in this case be some circumstances, not noticed by the reporter, which might lead the learned Judge to doubt the abso- lute necessity of a sale, or to think the buyer a party to the misconduct mentioned in the book. In a subsequent case (c), wherein Lord Chancellor Corvper decreed that the East India Company should pay to the owner of a ship purchased of the master at Batavia for their use by (a) Consolato, D. M. ch. 253. (6) Tremenhere v. Trerillian,! Laws of Oleron, art. 1 ; of Wisbuy, Sid. 452. art. 13 ; of the Ifanse Towns, art. (c) Ekins v. E. f. Company, 1 57. French Ordinance, Liv. 2. Tit. P. Williams, 395. 2 Bro. Parl. 1. Du Cupitaine, art. 19. Orclin ; Cases, 72. of Rotterdam, art. 165. 2 Magens, wr. 4 PART I. CHAP. I. one of their agents, the difference between the real value and the sum paid to the master, with interest thereupon at the rate allowed in India (which decree was after- wards affirmed by the House of Lords,) his Lordship look notice that the sale of the ship was not necessary : The transaction indeed was a gross fraud between the master and the agent of the Company, but without their privily. By the Consolato del Mare, the master is allowed to sell the ship, if worn out by age (d). And it is said by one of the earliest English reporters, that "the master of a ship may in some cases sell the ship, " although it does not belong to him, as in the case of " famine (e), &c." This author does not cite the decis- ion of any Court as an authority for the observation. The exception, however, of cases of extreme necessity rather fortifies than weakens, the general rule ; [ 4 ] and no person can safely purchase a ship of the master in any case, which does not clearly fall within the principle, upon which the exception is found- ed ; and such a case will rarely happen. And although the master be himself a part-owner of the ship, yet will not his sale thereof be good for more than his own part ; for (he interest of part-owners is so far distinct, that one of them cannot dispose of the share of another ; whereas in articles of ordinary sale, one partner may in general transfer the whole property, if the transaction be without fraud. 3. The effect, however, of this interdiction of sale has been frequently evaded in foreign countries, by pro- curing a sentence of condemnation and sale of a ship, as unfit for service, from some Court or Judge having (d) Cap 253 . () Jenkin's Centuries, p. 165. Observation at the end of case 17. OWNERS OF SHIPS. jurisdiction in maritime affairs (/). No such juris- diction is known to the law of England. The condem- nations, as tfiey are called, sometimes made abroad, upon the survey and report of captains or carpenters, have no binding force in this country, but the fact, upon which they profess to be founded, may be again litigated by the parties interested in disputing it. This was successfully done at a late trial before the present Lord Chief Justice of the Court of Ring's Bench, in a case (gf) of which it will be proper to detail the circumstances, as there is too much reason to [ 5 ] fear that similar practices not unfrequently take place. The owners of the ship Grace sent her to Jamaica, under the command of one Cook, with a cargo consigned principally to M'Anuff ami Cunningham, and with orders to follow their directions in respect to his loading back, and to apply to them for money for the use of the ship. On the 23d of February 1802, after the discharge of her cargo, the ship was driven on shore at Rio Btteno in Jamaica, in a gale of wind. The mas- ter applied to Cunningham, who resided at Montego Bay, for advice in this emergency, and on the 27th of February made the usual protest. On the same day, the deputy naval officer at Montego Bay directed his warrant to four masters of ships, desiring them to ex- amine the Grace, and make a return upon oath of her state and condition. They reported, that they had been on board, and found the ship settled in a sand bank four feet, with a bank of sand between her and the sea of twice her length, and not more than two feet water on the sand bank; and that they were therefore unani- (/) See Valin on the French & othen&ilt.&t Gui!dhaIl,A0v. 1. Ordinance, torn, l.p.444. 1803. There is a report of this (,) Hayman fc? others v.Moulton case in 5. Espin N. P. C. p. 65. 6 PART I. CHAP. I. mously of opinion, from the great expense that would be incurred in attempting to get her afloat, and the lit* tie chance of succeeding therein, that it would be most for the advantage of the underwriters, and all others concerned, to sell the ship as she then lay, with all her materials, to the best bidder. Cunningham advertised the ship for sale by auction as a wreck : he acted as auctioneer, and charged bis commission, and she was sold on the 15th of March, to one Dunn, for [6] 1,'JIO/. Jamaica currency, about 8641. sterling. One of the surveyors attended, and bid at the sale. Dunn sold the vessel to Robert Monltnn, a brother of one of the defendants, who, upon his own oath of ownership, and surrender of her register, obtained a new register at Jamaica, and transferred her there to the three defendants, one of whom was one of the four mas- ters by whom she had been surveyed. The vessel was got off the sand with considerable difficulty, but very little injured, and after some slight repairs returned to Eng- land with a cargo. The deputy naval officer here men- tioned, is the deputy of an officer appointed by the gov- ernors of our' colonies and plantations, to receive an ac- count of ships and their cargoes upon their arrival there (ft). The ship had cost 3,700/. before she left England, and was little more than three years old. The owners being dissatisfied with this sale, brought the present action to try its validity ; and at the trial it appeared by the evidence of Cook, and of three of the masters who had surveyed her, that they had paid very little attention to the ship itself, which was never pump- ed before they made their report ; but they swore that they thought a sale the most prudent step to be taken (A) 15 Car. 2. c. 7. sect. 8. fif 7 & 8. Wm. 3. c. 22. sect. & OWNERS OF SHIPS. < on account of the difficulty, expense, and hazard of re- moving her from her situation, and the little resources that Cook had for such a purpose. The plaintiffs contended, that the master of a ship could not [ T ] dispose of her in any case ; or that, admitting him to have this power in a case of absolute necessity, such necessity did not exist in this instance, and the whole transaction was a gross fraud. The Chief Justice, Lord Ellenbor&ugh, offered to re- serve the question, of the master's power to sell under any circumstances, for the consideration of the Court, if the verdict should render that point material ; and stated his own opinion to the Jury to be, that although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of the concern, exercising a sound dis- cretion, such as the owner himself would exercise if he were upon the spot ; and that in extreme cases, and ex- treme cases only, he had power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely. And he desired the Jury to consider, whether in this case there was such a ne- cessity as would have induced the owner himself to sell if he had been present ; and, if they thought there was such a necessity, then, whether the sale in this instance was fraudulent. The jury found a verdict for the plaintiffs. (1) (1) The words of Lord Ellejaborough, as sated in 5. Esp. N. P. Cas. 65. are " Where a case of urgent necessity and ex- traordinary difficulty occurs, where a ship has received an ir- remediable injury, under such circumstances,the captain acting bonafide, and for the benefit of the owners might sell the ship 8 PART I. CHAP. I. In the course of the trial no regard was paid to the authority of the deputy naval officer, whose situation certainly gives him no manner of jurisdiction on such a subject. In commenting upon the evidence, the f 8 ] Chief Justice adverted particularly to the cir- cumstance of one of the surveyors having bid at the sale, and another become a purchaser before the ship left the island ; and observed, that it might be a useful lesson to teach such persons, that by accepting the office of surveyor, they elected not to become purchasers, or to derive any benefit from a sale. And at a subsequent trial of an action (t), brought to recover the value of a ship, which bad been in like rnan- () Andrew s, 2 Ves. (p) Jdilit v. Baker and ot/tert, 272. and Atkinson v Mating, 2 Tor*. 1 Anst. 222. See also Gillespie v. Rep.in K. B. 462- Ex pane Batson Covttt, Ambler, 652. Co. Bank. Laws, ch. 8. s 11.3 Bro! (?) Stephen -j. Sole, cited in 1 Ch.Ca. 362, and per Kenyan Ch.J. Ves. 352. and in 1 Atkins, 157. arguendo in Gordon v. E. I. Cnm- Jfalfv. Gurney Co. Bank. Laws,cA, pany. 7 Ter. Rep. in K. B. 234.- OWNERS OF SHIPS. 1 1 therein is held to change the property of tFie goods, ac- cording to the rule of the Civil Law (s) ; such delivery in each case being not merely a symbol, but the mode of enabling the buyer to take actual possession, as soon at circumstances will permit. And the legislature has recognized this mode of transfer, and intro- [11 } duced particular regulations respecting it, as will be noticed in the following chapter. And to this pur- pose, in the case of Batson before referred to,* Dublin was esteemed a foreign port with respect to a ship be- longing to owners resident in England, and mortgaged there. In such a case, however, the buyer or mortga- gee should not delay to take possession of the ship upon its return to this country. 6. The law of England, which in all its branches fa- vours the transmutation of property made without fraud, as considering such transmutation beneficial to commerce, differs in thU particular very materially from the law of France ; for, by the (/) French ordinance, all ships re- main subject to the debts of the seller, until they have made one voyage at sea, under the name and at the risk of the new purchaser, unless they have been sold under a decree ; and the sale of a ship at sea shall never pre- judice the creditors of the seller. And FaJin, in his commentary on this part of the ordinance, says, that the debts here meant are debts of every description due at the time of the sale : and in another place (u) he in- forms us, that according to the general law of France, ships like other moveables cannot be hypothecated ; and that in those parts of France where the hypothecation () Dig. 41. 1. 9. 6. () Comment : on the French (0 Lir. 2. Tit. IQ.&ei JVaviret. Ordinance, torn. 1. p. 340, art. 3. & 3. . IQ. note (r). 12 PART I. CHAP. I. of moveables is permitted, the hypothecation coo- [12] linues in force only during the possession of the debtor himself, and does not enable the creditor to follow the property into the bands of a third person. It should be observed, that in the case of hypothecation, according to the strict meaning of that word in the Civil Law (.r), the debtor always continues in possession of the thing hypothecated. 7. Another mode of acquiring property in a ship is by capture from an enemy in time of war, legalized and sanctioned by a sentence of condemnation in a Court of the capturing power, constituted according to the law of cations. In this case, however, if the capture is made by a ship belonging to his Majesty, the prize is formal- ly condemned to the King, and the value distributed among the captors ; and if the capture is made by a private ship, in which case the sentence is in form a condemnation to the captors, a sale will always be the roost convenient mode of ascertaining the value, both for the purpose of distribution among the captors, and of payment of the (*/) duties to the King ; and the Acts of Parliament which give to prizes the privileges of British ships, presume a sale thereof, and provide reg- ulations accordingly, as will appear in the next chapter. [13] 8. Capture by pirates, who are merely robbers at sea (s), does not divest the property of the owner ; and in a very early period of our history a law was made for the restitution of property so taken, if found (*) Dig. 13. 7. 9. 2. Proprie war, whether public or private, pignus dicimus, quid ad credito. captured and made prize, are ex- rem transit ; hypothecam,cum non empt from duty, transit, nee possessio ad credito- (z) 27 Edv>. 3. stat. 2 c. 13. rem. Year Book 2 Rich. 3. 2 Jenkin't. (y) By 34 Ge. 3. c. 70. ships of Cent. p. 165. OWNERS OF SHIPS. 13 within the realm, belonging as well to strangers as Eng- lishmen. But capture by an enemy, in the exercise of war between two nations, does, according to the law of nations, wholly divest the property of the owner, and transfer it to the captor or the sovereign of his state at some period(a). The African States, having now ac- quired the character of established governments, and having regular treaties with this country, are not at present considered as pirates. And therefore in the case of a British ship captured by the Algerines, and sold under the authority of the D^y of Algiers, before the Spanish Consul, to a merchant of Minorca, who transferred it to a British merchant under the sanction of the Judge of the Vice-Admiralty Court at Minorca, the Court of Admiralty here refused to award restitution to the original owner(fe). 9. There appears, however, to be no settled and uni- form rule established in practice among nations, as to the precise period, at which property is divested [ 14 ] by capture. By some writers, and in some na- tions, this has been held to take place after a post session of twenty-four hours; by others not until the prize has been carried infra pr&sidia (c), an expression of very doubtful meaning as applied to maritime war- fare. The present very learned Judge of the Court of Ad- miralty has said, that, in his apprehension, " by the *' general practice of the law of nations, a sentence of " condemnation is at present deemed generally necessa- " ry, and that a neutral purchaser in Europe during war (a)Hale > s Treatise in three parts, Marshall on Insurance, p. 427. par. 2. ch. 28. in hargrave's Law (6) The HELENA, Heslop. 4 Rob. Tracts, p. 246. Goss v. Withers, A. R. 3. 2 Burr. 683. 1 Rob. A. R. 59. (c) March. HO. 14 PART I. CHAP. I. " looks to the legal sentence of condemnation as one " of the title deeds of a ship, if he buys a prize ves- " sel (d)." Such a sentence was thought necessary in this country to divert the title of the original owner, and give a valid title to a purchaser under captors, more than a century ago : and a ship taken from an English- man by a French squadron in the year 1691, and sent i,ilo Bergen in Norway, and there sold, coming after- wards inlo this country, was claimed by the original owner, and decreed to be restored to him by a sentence of the Court of Admiralty, affirmed afterwards upon appeal to the delegates (e). And upon the ground, that a legal sentence of condemnation cannot, according to the law of nations, be pronounced by a consul or minister of the belligerent pnwer, in the country of a neu- tral power, to which the prize may have been [ 15 ] taken ; ships have lately been restored by the judgment of the Court of Admiralty to their original owl ers, as well upon recapture from the purchaser (/), as upon arrest in a port of this country (g-). In one case, the ship, while in the hands of a neutral purchaser, had been taken by the French, and carried into a Span- ish post, and there condemned by the French consul as prize, but that condemnation had been reversed on ap- peal to the superior prize court at Paris, and the ship restored to the purchaser. These facts, however, were held nut to aller the case, or give validity to the title of the purchaser. According to the principle, upon which these decisions are founded, a fillip carried into a neu- (rf) 1 Rob. A- R. 139. () The KIEHLIGHETT, Spoere- (e) The ship Co.ssTAST-MtRT, wig; 3 Rob. A.R. 96. And the 5Rb, *.R 97. note. Thermolin PROSPEROUS, Dec. 1800. See a' so v. Hands, Carth. 423. Jfavelockv.Jiockv>ood,8 Term Rep, (/) The FLAD-OYES, Martin- in B R 268. Where lhi prjnciy son, I Rob. A. R. 135. pie is adopted. OWNERS OF SHIPS. 13 tral port ought not, while remaining there, to be con- demned in the country of the captors ; bat as it appear- ed in a late case (/i) in the Court of Admiralty, that sentences of condemnation under such circumstances had been sometimes passed in this country, the learned Judge of that Court refused to restore a British ship carried into Norway by a Dutch privateer, and [ 16 ] condemned by a Court at the Hague. B if sta'es in alliance with the captors and at war with the country to which a captured ship belongs, are consid- ered as farming one community with the captors : and a prize carried into such a state may be legally condemn- ed, either there by a consul belonging- to the nation of the captors (i), or in the country of the captors (/c). (I) 10. The subject of restitution on recapture will be mentioned in the chapter on Salvage.* (A) The HESRICK and MARIA, directed the Registrar to annul JBaar, 4 Rob. .\. R 43. A short time the decree. Note to the case of the before this case was argued, the HKHSTKLDEP. 1 Kob. \ It. 119. (2) same learned Judge having con- (f) The BETSEY, Kruger, 2 Rob. demned a Dutch ship, but after- A. II 210. note; and Qddy v. Bo- wards discovered that although vil, 2 East. 473. she was described as lying at /// (&) The CHRISTOPHER, Sly- mouth, she was in truth in Norway, boom, 2 Rob. A. R. 209. (1) It seems to be the established law in the United States,lhat a condemnation is necessary to transfer the property in a prize. It was so held, as to neutrals, by Johnson J. in the Circuit Court of the U. S. for South Carolina, in Rose v. Himely, 4 Cranch. 508. Appx. who said, " I heartily concur in the opinion, that as far as between neutrals at least, a sentence of condemnation is indispensably necessary to produce a complete divesture of (2) The caseof the Henrick and Great Britain must have the ef- Mai ia was affirmed by the court of feet of making those .sentences appeal in 1807, expressly as Sir W, valid whilst that practice contin- C.rant said upon the ground that tied. See also on t lie same ground the ackowledged practice of the Comet. 5 Rob. 255. * Post 398. 16 PART I. CHAP. I 11. It seems proper in this place to take notice of the question, whether the mortgagee of a ship is to be deem- ed in law the owner of it, entitled to the benefits, and liable to the burthens, which belong to that character, before he takes possession of the ship. The first decision, which I find in our books upon this subject in the case of (/) Chinnery against Black- burnt ; which was an action brought for the freight of (/) In K. B.East. Ter. 24 Geo. 3 Reported in a note. 1 Hen. Black. R^p. 117. property, and unless the neutral property captured be put in a train for adjudication, I should think a nation at liberty to seize it as piratically taken, for the capturing power is bound to sat- isfy the neutral nation, that she had a legal right to attack her citizens, and it will be found upon reflection, that this cannot be satisfactorily done in any other mode than by a decree of her tribunals of justice." And the same doctrine seems to have been admitted by the Supreme Court of the U. S. in deciding the same case on the appeal. 4 Cranch. Rep. 241. And in Hudson, &c. v. Guestier, 4 Cranch. Rep. 293. the Court ex- pressly say, that " the property in a neutral, captured as an en- emy, is never changed until sentence of condemnation ha? pas- sed." In Wheelwright v. De Feyster, 1 John. Rep. 471. the Supreme Court of New York held, that the property in goods captured, cannot be transferred so as to divest the right of the original owner, unless by a sentence of condemnation by a Court of competent jurisdiction. See also an ordinance of Congress in 1781, on this subject, 7 Journals of Congress, 68. 189. and Miller, &c. v. Ship Resolution. 2 Ball. Rep. 1. Every sentence of a court of a competent jurisdiction over the subject matter of its judgment, is conclusive as to the title to the thing claimed under it. 4 Cranch. Rep. 241. 293. See also Penhallow v. Doane, &.c. 3Dall. 54. and 1 John. Rep. 471. OWNERS OF SHIPS. goods from Antigua to London, and upon the trial whereof it was proved in evidence, that by an Inden- ture of Assignment, dated January 4, 178,3, Robert Merryfield, in consideration of 1,1662. 18s. which he owed to the plaintiff, assigned to her the ship B, &c. in which indenture there was a covenant from the plaintiff to re-assign the said ship, &c. to Merry- [ 17 } field on payment of 1,1 66/., with lawful interest, on or before the tenth of November then next ensuing ; that at the time of the execution of the deed, the ship was But if a claim be set up under a sentence of condemnation of a foreign court, the courts of the U. S. will examine into the ju- risdiction of the foreign court, and if its jurisdiction cannot con- sistently with the law of nations be exercised, the sentence will be disregarded. 4 Cranch. ibid. 1 John. Rep. ibid. If there- fore a vessel for a breach of municipal law be seized without the territorial jurisdiction of a nation ; or if the sentence be pronounced after the possession of a vessel is lost by recapture, escape, or voluntary discharge, the condemnation is invalid. 4 Cranch. ibid. It seems also established that a condemnation of a consul of a belligerent in a neutral country, is held invalid in the United States. In the above case of Wheelright v. Depeyster, the court held that belligerents cannot establish prize courts in a neutral country, nor can there make sale of their prizes unless authorized by treaty ; that the courts of the sovereign of the captors are the only competent tribunals to decide on the va- lidity of captures ; and that prize courts proceed in rem and cannot adjudicate on a prize lying in a foreign neutral port, or out of the jurisdiction of the captor or his ally. In Glass v. The Sloop Betsy, the Supreme Court of the U. S. decided, that no prize jurisdiction could be exercised in a neutral country, unless by treaty. 7 18 PART I. CHAP. I. in the river Thames, and afterwards sailed to Portsmouth, and continued there till the middle of March following in the possession and under the command of A. B., and that the plaintiff did not then take possession : that Merryfield navigated, victualled, and manned the ship as owner thereof, at his own expense and risk, both from England to Antigua, and on her return from thence. That Merryfield at Antigua gave the command of her to one Drysdale, and sent her to England, with orders to Drysdale to address himself to Messrs. Dunlop of But as to the validity of a condemnation, when the prize lies in a neutral port, the Supreme Court of the U. S. have differed from the case of Wheelwright v. De Peyster. For after very full argument in Hudson, &c. v. Guestier above cited, they held that, possession of the sovereign of the cap tors gives juris- diction to his courts ; that a ship, when carried into a neutral port, must be considered as still in his possession ; that his pos- session could not be lawfully devested by the tribunals of that neutral .country, into whose port the ship should be brought, and therefore that a condemnation of a ship so situated might be adjudged by the courts of the sovereign of the captors, and was binding upon all the world, even though the condemnation was for a breach of mere municipal law, and not for a violation of the law of nations. From this decision however Chase J. and Livingston J. dissented, and in this case as well as the case of Rose v. Himely above cited, denied that a condemnation of a ship while lying in a neutral port could be valid. In the latter case, which was of a condemnation of an American ship in a court at St. Domingo, while with the consent of the cap- tors, she was lying in the United States, Gushing J. concurred with them. And see on the general question Duncansoa v. M'Lure. 4 Dall. Rep. 308. OWNERS OF SHIPS. 19 London, merchants, who were to sell her according to the directions contained in a letter, in which letter Merry- field also mentioned that the plaintiff had a demand a gainst him for near 1,200/. sterling, which he hoped to remit shortly ; that Messrs. Dunlop being applied to as consignees, lent two suras of 501. to Drysdale the mas- ter, declaring that they should consider him as respon- sible, in case (hey should not receive the same by In cases of captures many questions have arisen on suits against the captors for restitution in our courts, where the pro- cess has been sometimes in personam, and sometimes in rem. In such cases where there has been a sentence of condemnation by a court of competent jurisdiction over the subject matter, it has been uniformly held, as before stated, that the sentence was conclusive upon the title. And where a libel was filed in the District Court of the U. S. for damages against the captors for the capture on the high seas of a vessel alleged to be neutral, which vessel was carried infra prcesidia of the capturing power, the Supreme Court of the U. S. awarded a prohibition to the District Court ; and held that the trial of ships captured as prize without the jurisdiction of any particular state belonged exclusively to the courts of the captors, if the ships so captured be brought within the dominions and jurisdiction of the cap- turing power, and that all questions incident thereto are exclu- sively cognizable in the same courts, and cannot be enquired into by any other court or tribunal, nor are the captors amena- ble to any other courts, nor liable to be arrested for such cap- ture as prize, whether the ship captured be belligerent or neu- tral. U. S. v. Richard Peters, District Judge. 3 Dall. Rep. 121. S. P. Talbot v. Janson. 3 Dall. Rep. 133. But where the ship is brought into the ports of the U. /S., the courts here will take cognizance of the capture, and if the capture has been madf without a lawful commission, they will decree restitution. Talbot 20 PART I. CHAP. I. freight, Sec. and that they afterwards received Ihe money from Drysdale : that the ship completed (he delivery of the cargo on the 2fth of September, 1783: that the plaintiff took possession on the 29th of September fol- lowing, immediately on receiving information of her arrival in the Thames, that the defendant had [ 18 ] goods from Antigua on board, the freight of which amounted to 7Gl. 9s. lid. for the recovery of v. Janson. ibid. See also Glass v. Sloop Betsy. 3 Ball. Rep. 6. So if the capturing vessel has been illegally equipped as a vessel of war in the U. S. Semble. Geyer v. Michel, Sac. and ship Den Onrekeren. 3 Ball. Rep. 285. and note under page 288. Moodie v. Ship Alfred. 3 Call. Rep. 307. Moodie v. Ship Phebe Ann. 3 Dall. Rep. 319. So if the ship has been cap- tured within our territorial jurisdiction. Semble. ibid, and see also the reasoning in Rose v. Himely, and Hudson, &,c. v. Guestier above cited, and the opinion of Johnson J. in the same cases, and in the Appendix to 4 Cranch. Rep. 508. So if a ship be captured on the high seas for a breach of mere municipal law. See the same cases. But neutral nations have no right to enquire into the legality of captures as between belligerents. M'Donough v. Dannery and the ship Mary Ford. 3 Dall. Rep. 188. Nor of captures of neutrals on the high seas ; nor of cap- tures within the territorial limits of the captors, whether in the exercise of belligerent or municipal rights. Seethe preceding cases, and particularly the cases in 3 Dall. Rep. and 4 Cranch. Rep. above cited. But in Findley, &c. v. Ship William. Pe- ters' Rep. 12. and Moxen, &c. v. Brig Fanny, ibid. 309. where the capture was made within our territorial jurisdiction, the District Court of Pennsylvania dismissed the libels for restitu- tion. However by Act of Congress, 5 June 1794. 3 vol. ch. 50. sec. 6. p. 91. the District Court is authorized to take cog- nizance of all captures within a marine league of our shores. OWNERS OF SHIPS. 21 which the action was brought : that Drysdale the master paid for lights, custom house dues, and for clearing the ship, which the plaintiff repaid him, and she also paid his and the mariners wages, for the voyage from Antigua, to the amount of '2341. 7s. 7d. after she took possession of the ship : and that the plaintiff afterwards sold the ship by auction for 710L Upon this state of facts the question for the opinion of the Court of King's Bench was, whether the plaintiff, the mortgagee of the ship, was enlilled to receive the freight earned by the ship after the date of the mortgage, and before the plaintiff had taken possession of the ship, and while the mortgagor had acted as owner and em- ployer of the ship : the merchant not appearing to have any counter-claim or demand upon the mortgagor, which would have furnished a defence to an action for the freight at his suit. And the Court of King's Bench decided that the plaintiff was not entitled to the freight under these circumstances : they considered the con- tract for the carriage of the goods, upon which the de- mand arose, to have been made with the mortgagor on his own account, and not as an agent for the mortgagee; and Lord Mansfield said, " till the mortgagee takes " possession, the mortgagor is owner to all the world, 44 and he is to reap the profits." And Mr. Justice Buller said, " If the mortgagor be considered as agent, " he must be so throughout, and then the morlga- " gee would be answerable for every loss, dam- [ 19 ] *' age, Sic." And it was observed that the pay- ments, which the plaintiff had made to the master, &c. were voluntary payments to get possession of the ship free from any lien. 12. It seems, that the learned Judges, by whom this case was decided, were of opinion, that a mortgagee, 22 PART I. CHAP. I. who had not taken possession, would not be liable for such repairs or other expenses, as are not a charge upon the ship ilself in specie. And so (he law was after- wards held to be, in I he case of (m) Jackson against Vernon, by Mr. Jttstice Heath and Mr. Justice Wilson, the only judges present in the Court of Common Pleas, at the decision of that case. It was an action for the price of ropes, cordage, and olher stores furnished in this country to a ship, by the order of one Palmer, be- tween the dale of a mortgage of the ship executed by him to the defendant, and the time when (be defendant took possession of the ship in pursuance of the mort- gage. 13. In the determination of this case of Jackson a- gainst Fernon, some reliance was placed on a case (n), decided in the Court of King's Bench, with re- [ 20 ] spect to real properly, in which it was held that a person, to whom a term for years had been assigned by way of mortgage, but who had not taken possession of the premises, was not liable to pay the rent reserved upon a lease, by which the lerm was creat- ed. The propriety however of Ihis decision, with re- spect to real property, has been since doubted ; and if seems evident, from the judgment pronounced by Lord Kcnyon, the late very learned Chief Justice of Ihe King's Bench, in the case of Westerdell against Dale (o), that his Lordship considered the mortgagee of a teny of (m) Jackson v. Vernon, 1 Hen. that he could not subscribe to Blac. 114. the doctrine laid down in Eaton v. (n) Eaton v. Jaques, Doug. 454. Jaque* ; it was proved, however, In a case of Stone v. Evans, tried that the mortgagee had taken actu- before Lord Kenyon, C. J. at the al possession. The difficulty in Westm. Sit. after M. T. 39 Geo- 3. real property may always be avoid- in which the question was, wheth- ed by taking an under-lease, in- er the assignee of leasehold prem- stead of an assignment, ises was liable for the ground rent ? (o) 7 Ter. Rep. in K. IV 306. his Lordship explicitly declared, OWNERS OF SHIPS. 23 years to be liable to the rent reserved, and the mortga- gee of a ship to be liable to the repairs ; although his Lordship, and the other Judges, declined to give a positive opinion on these points, because the determina- tion of them was not necessary to the decision of that cause. 14. Upon a subject, on which persons of such exalted rank and eminent talents have differed in opinion, it would be presumptuous in the author of this treatise to offer an opinion of his own t It may be remarked, how- ever, that neither of the cases before-mentioned seems to afford an authority upon the general and abstract question of the right or obligation of the mortgagee; for in the first the mortgagor himself at Antigua acted personally in the management of the ship [21 ] as owner; in the last, the mortgagor himself or- dered the repairs, and therefore the credit might not unreasonably be deemed in law to have been given, as in fact is certainly was, to him, and not !o the mortga- gee. The general question will most properly arise in the case of a contract made by the master in that char- acter. And by way of advice and caution, I may with propriety say, that every person, who takes a mortgage of a ship, must, until these points shall have received a more solemn determination, consider it to be possible at least that he may expose himself to a loss by the very act from which he expects a security (1). (1) In the case of Hodgdon v. Butts, 3 Cranch, Rep. 140. the question of the liability of a mortgagee was argued, but not decided by the court. In that case, A. and B. bargained and sold to the plaintiff by deed, the Schooner Mississippi, 'hen ly- io in Alexandria, and the cargo of the ship Hannah, then at 24 PART I. CHAP. I. 15. In this chapter it is proper also to mention anoth- er point, upon which different judgments have been pro- nounced, namely, ii'/io, in the case of a ship chartered to one person, is to be considered as owner with respect to another person, whose goods have been shipped un- der the authority of the charterer. sea, to indemnify the plaintiff for indorsement of notes to the amount of $10,000, and if A. and B. should indemnify the plaintiff in a certain time after the arrival of the schooner or ship from the voyage, which ever should first occur, then the deed should be void ; and on failure to indemnify as aforesaid, the plaintiff was to be at liberty to sell the cargo of the ship and the schooner and cargo. In the same deed the said A. and B. bound themselves executors and administrators, and also the freight and inward cargo of the schooner, and the cargo of said ship to exonerate the plaintiffs ; a memorandum of the mortgage (as of the schooner) was indorsed on the schooner's register, and delivered to the defendant, who was the master of the schooner, and who sailed fromAlexandriato New Orleans,and from thence to Jamaica, and from thence returned to Alexandria. On the return of the schooner, and not before, she was put into the ac- tual possession of the plaintiff under a new and absolute bill of sale executed at that time by A. and B. The defendant re- ceived the freight from New Orleans to Jamaica. It appeared in evidence that the instructions for the voyage were given by A. and B., and the whole was conducted under their manage- ment. At the commencement of it the said A. and B. were indebted in a considerable sum to the defendant for wages and disbursements in a prior voyage, which, and another sum the defendant was directed to discharge out of the accruing freight by one of the partners. After the voyage was ended, and be- fore possession was delivered to the plaintiff, the defendant set- tled with A. and B. and deducted the sums aforesaid in his ac- OWNERS OF SHIPS. 25 16. In the case of Parish against Crawford (p), an action was brought against the defendant a owner of a ship, upon a promise alleged to have been made by him to the plaintiff to cen\ ey in his ship a quantity of moidores from London to Barbudoes, which had not been delivered there. The facts of the case [ 22 ] were, that the defendant, the owner, had chart- ered the ship to one Fletcher for the voyage in question for a certain sum, and Fletcher was to have the freight of goods, but (he freight of passengers was reserved to the defendant ; and the defendant appointed the master, and covenanted wilh Fletcher for the con- dition of the ship and behaviour of the master. Fletch- er took on board the moidores and other goods of the (p) Shortly reported in 2 Stra. given is taken from a manuscript 1251. The account of the case here note much fuller than the report. count. After the plaintiff had received possession of the schoon- er, he paid the expenses and disbursements of the voyage by the orders of thje defendant ; but never gave any notice to the defendant that he should look to him for the freight until after- wards. The action was brought to recover the freight, or the disbursements paid. On these facts the Circuit Court of Co- lumbia were of opinion that the plaintiff was not entitled to re- cover. And on error to the Supreme Court, the cause went off upon another ground. But the court said, " that it did not ap- *' pear that the plaintiff had paid the disbursements in the " confidence of receiving the freight, or that he was not com- " pellable to pay them as owner of the vessel. The freight had " previously been applied by the defendant under the author " ity of A. and B. to the payment of a debt due to himself. He " had a right, as a general creditor, to retain that freight ag " against the original owners or their assignee." 8 26 PART I. CHAP. I. plaintiff and other persons, and received the freight for them. For the defendant it was objected, that although the ship was his property, yet he was not owner in such a. manner as to be liable to this action, but that Fletcher was for this purpose the owner. Chief Justice Lee, however, before whom the cause was tried, was of opin- ion that the action might be maintained ; and the plain- tiff recovered damages to the value of the ship and freight (7). The sentiments delivered on this occasion by the Chief Justice were as follows : " The true con- " side ration is, whether by any thing done by Crawford, "who is confessedly the owner of the vessel, in chart- "ering it to Fletcher, he has discharged himself as own- " er ? Crawford considers himself as the governor of " the ship, and so covenants for the government of it, "during the voyage, and the ship was navigated by his <{ master. Upon what foundation then is an owner "chargeable, but upon these two considerations ? First, " The benefit arising from the ship, which is " the equitable motive. Secondly, The hav- [ 23 ] "ing the direction of the persons who navi- "gate it. And it is tipog these two things taken to- " gether, that the implied contract arises. Though ** Crawford has not that freight, which the merchants "pay for their goods, yet as he has the benefit of the ^freight in general, he has that equitable motive which " makes him liable. With regard to Fletcher, what " Crawford has done is only giving him a power to put "goods on board. And it seems to me, the makers of " the act of parliament could not have any notion of u such an owner of the ship, for it speaks generally of (q) 12 Get. 2- c. 15. A statute the owners. See Part the Third, which limits the responsibility of Chap. 5. OWNERS OF SHIPS. "owners of ships; but this Fletcher is not to be conaid "ered as owner of the ship in any light, but only as " having a power to make use of it in this way. If this " was to be considered in the nature of a mortgage, it " would be delivering up the ship for such time as the ' mortgage should be in force. Therefore I think there " is nothing appearing upon this evidence, that dis- " charges Crawford as the owner of the ship.'* 17. But the force of the decision in this case of Par- ish against Crawford, appears to be weakened by a more recent determination. In the case of James a- gainst Jones & others (r), an action was brought [ 24 ] against the defendants as owners of the ship Sea-Flower for the loss of a quantity of raisins on a voyage from Faro lo London. One Thomas, the master of the ship, had, in hia own name as master, and in the absence of the owners, chartered the ship to Reed and Parkinson on a voyage from Falmouth to Faro and back to London ; and Reed and Parkinson engaged by the charter-party to provide a full lading from Faro, and to pay a stipulated price per ton. The goods in question were shipped at Faro, by the consent of the agent of Reed and Parkinson at that place, and Thomas, the master, signed a bill of lading, engaging to deliver them to Ihe plaintiff, " he paying freight per charter- " party." These facts appearing at the trial of the cause before Lord Kenyon, his Lordship was of opinion, that Heed and Parkinson were, with respect to the plain- tiff, the owners of the ship pro hdc vice ; that the de- fendants, Jones & others, were not responsible to him, and consequently that the plaintiff could not maintain (r) James v. Jones and othert, case in Espinasse'a Nisi Prius cases, Guildhall Sit. after Trin. Term,39 Vol. iii p. 27. Geo.S. There is a short note of this 28 PART I. CHAP. I. bis action* Under this opinion the plaintiff and his counsel acquiesced, and did not apply to the Court for a further consideration of the subject. But the before- mentioned case of Parish against Crawford, does not seem to have been adverted to on this occasion. The question, however, in each case, appears rather to have been a matter of form than of substance ; for it seems clear, that the owners were in each case liable to an ac- tion at the suit of the person, to whom the ship was chartered, and who might have sued and [ 25 ] recovered damages for the benefit of the mer- chant, whose goods were lost.* The opinion of the Chief Justice, in the case of James against Jones, is conformable to the principle of a judg- ment pronounced by the Court of King's Bench in a former case (s) on a question of Insurance, wherein it was decided, that a deviation committed by the master with the knowledge of the absolute -owner, and which therefore could not, according to the law of England, be an act of Barratry with respect to him, was an act of Barratry with respect to a third person, who had hired the ship by a charter-party, and who was considered as owner for the particular voyage, with relation to the subject of that cause (1). () Vallejo v. Wheeler, Cowp. 143. (1) The question as to ownership on charter-parties, has been also litigated in our courts. In a case where by a charter-party A. let to B. for a certain voyage the -whole tonnage of his brig and covenanted to deliver the cargo at the port of destination, dangers of the seas excepted, and also that the brig should be tight and strong, and properly manned for the voyage, and the See Post. 116. Sect. 5. CHAPTER THE SECOND. OF PROPERTY IN BRITISH SHIPS. 1. LL commercial nations have, for (he advance- ment of their individual prosperity, conferred various privileges of trade upon the ships belonging to their own countrymen; and the Legislature of this nation has for the same purpose, at different periods, enacted laws suitable to the circumstances of the times, requir- ing for the exercise of some particular branches of corn- return cargo should be delivered to B. at the home port ; and afterwards, by provisional articles between the parties, it was agreed that the captain should be instructed by the owner to touch at Falmouth, and " there to lay off and on 24 hours or " longer if desired, in day light, during which time there " will come off orders from Mr. C., Mr. D. or Mess. E. & Co. ;" and the captain was to proceed to such port (of five specified ports) as their orders should state ; and if" the vessel was de- " tained over 24 hours at Falmouth, demurrage should be paid " for the time at the rate stipulated in the charter-party." The vessel proceeded to Falmouth,and there, no orders being ready, the brig by the advice and orders of Mr. C. came into the port instead of laying off and on, and was there seized and detained 80 days, on an action of covenant for demurrage, alleging a breach that by the orders of C. the brig was conveyed into the port of Falmouth, and by means thereof was detained 80 days; it was held by the Supreme Court of the U. S. that A. still con- tinued owner for the voyage ; that the covenant to touch at Fal- mouth and lay off and on, &c. was his covenant as owner ; that 30 PART I. CHAP. II. merce, ships not only of the property of its own subjects, but also of the built of its own dominions; allowing other [.ranches to ships the property only of its own sub- jects, without regard to the built; and, in others, in which foreign ships were suffered to participate, favour- ing those of its own subjects by a difference in the rate of duties. It has, however, at all times, been (he policy of the Legislature, to confine the privileges of our trade, as far as was consistent with the extent of it, (o ships built if the going into Falmouth w t .s a breach of the articles, no ac- tion would lie for A., but if any lay, it would be for B. ; bat as the master in this action acted by the orders of the agent of B., B. was not entitled to maintain any. That of course no de- murrage was due in this case, as the detention was occasioned, either by the misconduct of the master for which A. was an- swerable, or was for the purpose of avoiding danger, and was not occasioned by laying off and on the port of Falmouth, or by any misconduct of B., which were the only cases in which B. would be liable on the true construction of the charter-par- ty. Hool, &c. v. Groverman, 1 Cranch. Rep. 215. In an action on a policy on a vessel called the Marcus, the plaintiff declared for loss by barratry of the master under the following circumstances. The plaintiff was owner of the Mar- cus, and by charter-party dated 13 June, 1801, chartered the same to Aken and Brice, and in the charter-party, excepted one half of the cabin, the privilege for 20 barrels for the master and mate, and so much of the hold and forecastle as was necessary for the accommodation of the master and crew, provisions, &c. ; and covenanted to have the vessel ready and to receive along side such cargo, contraband goods excepted, as Aken and Brice should tender and the vessel could conveniently carry, and to proceed on the voyage described, and that master and crew should assist in landing the cargo ; and the plaintiff was also to PROPERTY IN BRITISH SHIPS. 31 within the King's dominions ; but it was reserved for the present reign lo behold the ship-building of the country advanced to such a state as to warrant the con- finement 'of these privileges exclusively to ships of that description, or taken as prize in war. And, ac- cordingly this measure was carried into execution [27 ] by a statute (a), made in the 26th year of his pres- ent Majesty's reign ; reserving, however, to sucti foreign (a) 26 Geo.Sc. 60. hire the master and crew and pay all their wages and expenses for the voyage. The charter-party contained the usual coven- ants on the part of Aken and Brice, as to providing the cargo and demurrage, and the whole of the freight was to be paid at New York on the delivery of the return cargo. Brice went the voyage in the vessel and acted as supercargo, and the master, at the request of Brice, deviated from his voyage and went to another port. The question was whether the plaintitf was the owner of the vessel for the voyage, or Aken and Brice. The court were of opinion that the plaintiff continued the owner of the vessel for the voyage, and that the deviation amounted to an act of barratry in the master for which the assurers were liable. And the court thought the distinction to be, " that where by the " terms of the charter the ship-owner appoints the master and " mariners and retains the management and control of the ves- " sel, the charter is rather to be considered as a covenant to " carry goods ; but where the whole management is given to " the freighter, it is more properly a hiring of the vessel for "the voyage, and in such case the hirer would be deemed "Downer." M'Intire v. Brown. 1 John. New York Rep. 229. And where one part-owner hired of the other his moiety, a ship for 18 months for a monthly hire, and in the charter-party it was agreed between them that in case of the loss of the 32 PART I. CHAP. II. built ships, as were then the property of his subjects, the privileges to which they were then entitled by the existing laws. For the more effectual execution of this important measure of public policy, 'various new regu- lations were at the same time introduced, to ascertain the built and property of ships, which have been since improved by subsequent statutes (6), as experience (6) 57 Geo. 3. *. 19. 34 Geo. 3. c.42 fJ 68. 3S Geo. 3. c. 58. 37 Geo. 3. c. 63. schooner during the term that the hirer should pay the other party $1800, besides arrears of hire, and for better security should cause an insurance to be made on the ship for $3000 a policy was underwritten and an action brought for a loss ; the Supreme Court of Massachusetts held that by the contract the hirer had a special property in the other moiety which was at his risk during the term, and that when the ship was lost, he lost the whole of her. Oliver v. Green. 3 Mass. Rep. 133. In Mason, &c. v. Ship Blaireau- 2 Cranch's Rep. 240.. the Supreme Court of the U. S. held that the owners of a ship char- tered for a voyage, still continue owners for the purpose of re- ceiving salvage in case of property saved by her crew ; and that though one of the charterers be on board, and consent that a part of the crew should navigate the saved vessel, this is not such an act as puts the ship at the risk of the charterers. An action was brought against certain persons as owners of a ship for running down the ship of the plaintiffs. At the trial it appeared that the ship of the defendants was at the time un- der charter to the Commissioners of the navy, who had put on board a commander in the navy, who had then the command of the ship. The charter-party contained covenants on the part of the defendants, that they would provide a crew for the ship, and pay and victual them : that they would repair the ship and PROPERTY IN BRITISH SHIPS. 33 shewed that some particulars, notwithstanding the great attention paid to the original statute, and the great tal- ents employed in framing it, had not been sufficiently provided for by it. An enumeration of the commercial privileges of British ships would be wholly foreign to the subject of this book. The provisions introduced by the Legislature to ascertain the property, and regulate the mode of transferring it from one person to another, are peculiarly within its province ; and I shall therefore supply her with stores ; but the guns and ammunition were to be found by government ; that the master should obey the orders and instructions of the naval officer; on the part of the com- missioners, that they would pay 15s. bd. per ton per month, and bl. Ws. per month for each man of the ship's complement ; that if the ship should be sunk, taken or burnt by the enemy without default, government should pay for her, and should al- so pay the freight then due to her ; that government should also pay for all damages that should be sustained in any action with the enemy. On this case the Court of Common Pleas gave judgment for the plaintiffs and said, notwithstanding the char- ter-party the ship belonged to the defendants. It was navigated by a master and sailors provided and paid by them, and it is difficult to say that it is not to be considered as their ship with regard to all the world, except the commissioners of the navy. The taking an officer on board belonging to those to whom they have let the ship, cannot exonerate them from their responsi- bility. Fletcher, &c. v. Braddick, &c. 2 New. Rep. 182. So where a ship was chartered from New York to Jeremie and back to New York at a freight of $2,400 for the voyage, the court held that the charterer was not owner of the ship for the voyage, and could not issue the sum agreed to be paid by the name of "freight ;" and that the charter-party was a mere 9 34 PART I. CHAP. II. endeavour (o arrange and consolidate them ; treating the several statutes, in which they are found, as being sub- stantially one, except where particular circumstances require another course. It should be observed, how- ever of these provisions, that they are not less happily calculated to prevent the commission of private fraud upon individuals, than to advance the public policy of the state, by the notoriety of property obtained [ 28 ] through the medium of of a public Register,a meas- covenant to carry the goods. Cheriot v. Barker. 2 John. Rep. 346. When an abandonment is made to insurers upon a ship, and is accepted by them,they become owners, and this ownership is to be computed from the time of the loss, on account of which the abandonment is made. Abandonment has this retrospec- tive effect, and it amounts to a complete transfer of the proper- ty. United Insurance Company v. Robinson. 2 Cain. Rep. 280. 2 Emergion 194, 6. Pothier Contrat d' Assurance, n. 138. United Insurance Company v. Scott, &c. 1 John. Rep. 106. The insurers are consequently liable to pay for all repairs and necessary expenses incurred after the loss. ibid, and Reade. &c. v. Commercial Insurance Company. 3 John. Rep. 352. The same is the effect on abandonment of a cargo. The in- surers become immediately the owners, and are entitled to the property or the proceeds of it against all persons in possession of it. Schmidt v. United Insurance Company. 1 John. Rep. 249. Robinson, &,c. v. The United Insurance Company. 1 John. Rep. 592. And where the policy is underwritten by several persons, af- ter abandonment made to them, they are not to be considered as joint partners, but are severally liable for their proportion of repairs. United Insurance Company v. Scott. 1 John. Rep. 106. PROPERTY IN BRITISH SHIPS. 35 ure adopted with numerous improvements from the wis- dom of former times(c). (1) (c) The registering of ships ap- pears to have been first introduced into practice in this country by the navigation act, 12Car. 2. c. 18. s.10. A. D. 1660. For it is not mention- ed in the navigation Ordinance in the time of 'he usurpation ; but the Statute of Char'e the Second only requires foreign ships British twnedto be registered. The Stat- ute? & 8 W. 3. c. 22. . 17. requires British or Plantation built ships British owned, if intended to be employed in the Plantation trade, and also prize ships, to be regis- tered. And ships, for which Med- iterranean passes were wanted, were also registered in conse- quence of a regulation at the Ad- miralty, although a register was not required by Statute for British ships employed in; be Mediterrane- an trade ; as we learn from Reeves' History of the Law of shipping and Navigation, p. 423, Lewis the Fourteenth, by an Ordinance dated the 24th October 1681, required all bis subjects to make a declaration in the Admiralty of their residence of all ships belonging to them, whether built in France or foreign countries, and of the names of the several part-owners, who were to be Frenchmen only, and resident in France, in order to preserve the privileges of the national flag to his own subjects. See Valin on the French Ordinance, torn. 1. 564. fee The first article of the Han- static Ordinance of 1614, prohibits the building of ships in the ffanse Towns to all, except Citizens and persons having the particular per- raibsion of the Magistrates of the place. An Act of Congress of the 31st of December 1792, ch. 1. con- tains regulations for registering ships in the United States of Amer- ica^ the greater part of which cor- respond almost exactly with those of our Statute of 26 Geo. 3. c. 60. The national privileges of trade are confined to ships belonging to, and commanded by Citizens of Jl- mrrica, and either built within the United States, or belonging to A- merican Citizens on the 16th of May 1789, and continually there* after; or taken and condemned as prize in war ; or forfeited for a breach of the laws of the United States. (1) In this chapter the same order will be pursued in exam- ining the corresponding sections of the registry acts of the U- nited States in the notes. The United States were early im- pressed with the propriety of establishing commercial regula- tions for the encouragement of their own trade, and of confer- ring privileges upon ships built within the country. An act was passed the first of September, 1789, by Congress for this purpose, but being found inadequate it was repealed, and. the act of 31 December, 1792. (2 U. S. L. 131) substituted in its stead. This act and the act of 18 February, 1793. (2 U. S L. 168) constitute the basis of the regulation? for the foreign. 36 PART I. CHAP. II. 2. The subject of these provisions are all merchant ships employed upon the sea, whether in the coasting trade or distant voyages fd), having a deck, or being of the burthen of fifteen tons and upwards; and either built in Great Britain, or Ireland, Jersey, [29] Guernsey, and the Isle of Man, or the Colonies, (d) 26 Geo. 3. c. 60. . 1. V 3. trade, and the coasting trade, and fisheries of the United States. The acts of the United States relate to all Ships employed at sea, which may be divided into five classes: 1. Ships of the United States employed in foreign trade, which are entitled to be registered. 2. Ships built in the United States, but owned wholly or partly by foreigners, which are entitled to be record- ed. 3. Ships built out of the United States, but owned by cit- izens which are entitled to a certificate of ownership. 4. Ships of the United States employed in the coasting trade or fisheries, which are entitled to be enrolled and licenced. 5. Ships built out of the United States and owned by foreigners, which are considered alien vessels to all intents and purposes. See Slight v. Hartshome. &c. 2 John. Rep. 531. Ships actually registered and ships duly qualified for carry- ing on the coasting trade and fisheries, or one of them, are alone denominated and deemed Ships or Vessels of the United States, entitled to the benefits and privileges appertaining to such ships or vessels and they continue to enjoy the same no longer than they continue to be wholly owned and command- ed by a citizen or citizens of the United States. Act, 31 De- cember, 1792. ch. 1. 2 U. S. L. 131. Act, 18 February, 1793. ch. 8. 2 U. S. L. 168. Ships or vessels built within the United States before or after the 4th of July, 1776, and belonging wholly to citizens of the U. S., or not built within the United States, but on the 16th of PROPERTY IN BRITISH SHIPS. 97 Plantations, Islands, and Territories, under the domin- ion of his Majesty, in Asia, Africa, or America ; or taken, in lawful war, and condemned as prize ; with the exception of " vessels not exceeding thirty tons, and "not having a whole or fixed deck, and being employed " solely in the fishery on the banks or shores of Ntiv- lt foundland, and of the parts adj; cent, 61 on the banks " or shores of the provinces of Quebec, JSova-Scotia, or "New-Brunswick, adjacent to the Gulph of St. Lawrence, May, 1789, and continually thereafter belonging to citizens; and ships or vessels captured by citizens in war and condemned as prize, or seized and condemned for a breach of revenue laws and wholly belonging to citizens, may be registered ; but are not required to be under any other penalty than not being ships of the United States. Act, 31 December, 1792. ch. 1. sect. 2. 2U. S. Laws. 132. No citizen who usually resides in a foreign country, can during such residence, entitle himself to have re- gistered a ship owned in whole or part by him, unless he be a consul or an agent or partner in some house of trade or part- nership consisting of citizens actually carrying on trade within the United States. Act of 31 December, 1792.sect. 2. No ships can be registered, or if registered, can be entitled to the benefit thereof, if owned in whole or in part by any naturalized citizen residing for more than one year in the country from which he originated, or for more than two years in any foreign country, unless he be a consul or public agent. But such ships may be registered anew on a bonafide sale to any citizen resident within the U.S. Act, 27 March, 1804. ch. 52. sect. 1.7 U. S. L. 146. No ship built within the United States before the 16th of May 1789, and not then owned wholly or partly by a citizen, can be registered, even on a transfer to a citizen, unless by way of prize or forfeiture. Act, 31 December, 1792. sect. 2. And no registered ships, which shall be seized or captured, and con- 38 PART I. CHAP. II. " and to the north of Cape Canso, or of the Islands <( within the same, or in trading: coastwise wilhin the " said limits ; which latter vessels are not liable to be " registered, nor to any hindrance or molestation for tt not being registered ()." Such ships however, must belong (/) to some of his Ma- jesty's subjects in Great Britain, Ireland, Jersey, Guern- (. 45. expressly enacts, that prize been attributed to the words used ships legally condemned and duly in the 26. Geo. 3. registered, shall be deemed Brit- (i) 27 Geo. 3. c. 19. . 13. ish-btiilt ships, and entitled to the 40 PART I. CHAP. II. sons to be approved of by him, and deliver lo him in writing the particulars of the damage sustained ; and verify upon oath, or affirmation, the particulars and a- niount of the repairs, and the necessity of them, for the reason and for the purpose before-men- [ 31 ] tioned ; which such consul or officer is required to certify under bis band and seal; and if there be no such consul or officer resident at or near the place, then the survey is to be made by two persons to be approved of by two known British merchants resident at or near the place; and the master shall produce to them vouch- ers of the particulars and amount of the repairs, and their certificate shall be of the same effect as that of the consul or chief officer. And if a ship is repaired in a foreign port, the master shall, if required, make proof on oath, or by affirmation, of the nature and amount of the expense of the repairs, before the principal officer of the Customs, at the port within his Majesty's domin- ions, at which she shall first arrive; and if the expense shall exceed fifteen shillings per ton, and the master shall not deliver the certificate before-mentioned, the ship shall be deemed foreign built (fc).(l) 4. It seems to have been the intention of the Legis- lature, to subject to forfeiture every ship required to be registered, which should depart from port without be- ing registered ; hut it may be doubted whether the words (fr) 26 Geo.3. c. 60. s. 2. (1) There is no provision in the acts of the United States corresponding with that referred to in this section, respecting repairs of a ship in foreign port?. PROPERTY IN BRITISH JHIPS. 4J used in this clause of the statute will bear such a con* struction (/). (1) 5. The place of registry is, in general, the port from and to which the ship shall usually trade, or, { 32 ] being a new ship, shall intend to trade, and at or near which the husband or acting owner or owners reside; but four of the Commissioners of the Customs in England, or three in Scotland, may, if they see fit, authorize the register to be made in a different port (m). And prize ships, condemned in Guernsey, Jersey, or the Isle of Man, must, in order to secure the duties, be registered either at Southampton, Weymoulh, Exeter, Plymouth, Falmouth, Liverpool, or Whiteha- ven (n). (2) (0 26 Geo. 3. c. 60. . 32. See ed within a fixed time, and those post. sect. 23. of this chapter. already registered to be registered (mi) Geo. 3. c. 60. . 4 & 5. anew ; but it seems unnecessary () 26 Geo. 3. c. 60. s. 26. By to notice the particular regulations this statute all ships then in exist- on this head at this distance of ence, were required to be register- time. ( 1 ) In the United States, no ships are required to be register- ed. But to entitle them to the privileges of ships of the U. S. they must be registered,and otherwise are deemed alien ships ; as is before stated, ships engaged in the coasting trade or fish- eries, are liable to forfeiture if they have foreign articles on board, unless they are enrolled and licenced. Act, 1 8 February, 1793. ch. 8. sect. 12. (2) The place of registry in the United States is in general the Collector's District, in which shall be comprehended the port to which the ship shall belong at the time of her registry, which port shall be deemed to be that at, or nearest to which the owner, if there be but one or if more than one, the husband or acting and managing owner of the ship, usually resides, and 10 42 PART I. CHAP. IL 6. In order to obtain a certificate of registry in the case of a new ship, the person applying for it must pro- duce a full and true account, under the band of the build- er, of the denomination of the ship, time and place of building, tonnage, and name of the first purchaser, and must make oath that the ship is the same as thus describ ed by the builder (o). In the case of a prise ship, the owner must produce a certificate of the condemnation, under the hand and seal of the Judge of the Court, and an account in writing of all the particulars, contained in the form of the certificate of registry, made and sub- scribed by one or more skilful persons, to be appointed (o) 26 Geo 3. c. 60. . 20. Sf 21. the registry must be made by the collector of such district. Act, 31 December, 1792. ch. 1. sect. 3. Where, however, a citizen of the U. S. purchases a ship en- titled to be registered, and the ship is in another district than that where he usually resides, such ship may be registered by the Collector of the District, where the ship is at the time of the purchase, upon the purchaser's complying with the provisions of the law in common cases. And the usual oath or affirmation may be taken by the owner at his option, either before such Collector, or the Collector of his own district. But upon the ship's arriving within the district to which she belongs, the cer- tificate of registry, granted to her, must be delivered up to the Collector thereof, who is to grant a new certificate in lieu of the first, upon compliance with the provisions of the law in common cases, and is to transmit the certificate delivered up to the col- lector who granted it. If the certificate be not delivered up. it becomes void, and the purchaser and the master incur a penalty of one hundred dollars ; and the same penalties are in- flicted for false swearing, as in common cases, ibid. sect. 1 1 PROPERTY IN BRITISH SHIPS. 43 by the Court to survey the ship ; and must also make oath of the identity of the ship (p) : and if the prize has been condemned in the foreign colonies, [ 33 ] oath must be made of the sum, for which the ship was sold, and an account of that sum must be subjoined to the certificate, in order that the duties may be paid upon the ship's arrival in Oreat Britain () 26 Geo. 3. c. 60. s. 16. 60 PART I. CHAP . n. 11 shall also deliver a copy of such indorsement to the " person or persons authorized to make registry, and "grant certificates of registry as aforesaid, who are " hereby required to cause an entry thereof to be in- " dorsed on the oath or affidavit, upon which the orig- *' inal certificate of registry of such ship or vessel was " obtained; and shall also make a memorandum of the "same in the book of registers, which is hereby direct- " ed and required to be kept, and shall forthwith give " notice thereof to the commissioners of his IVlaj- "esty's customs in England or Scotlatid, under whom "they respectively act." The subsequent statute (, be made in the manner and " form hereinafter expressed, and shall be signed by the " person or persons transferring the properly of the said "ship or vessel, by sale, or Contract or agreement for "sale thereof, or by some person legally authorized for t{ that purpose by him, her, or them ; and a copy of (g) 34 Geo. 3- e. 68. *. 15. I ute, which there plainly denote have ventured to state, that by something different from absolute this siatute an indorsement is re- transfer; it seems probable the quired in the case of contract or Legislature intended that the form agreement for sale, as well as ab- of the indorsement should be vari- solutessle; because, although the ed according to the nature of the form of the indorsement is appli- transaction ; and that the words, cable to the ca*e of actual sale on- contracted to sell and transfer, ly yet, adverting to the words, should be used in the indorsement "transferring the property by instead of the words, have sold and " sale, or contract or agreement transferred, if the case require it. " for sale,** used in this section, So the expression all my right, ftc. and to the words, "contract or a- must be variable, if the vendor " gi cement for transfer," used in transfer only a part of his interest the preceding section of this stat- in the ship. PROPERTY IN BRITISH SHIPS. " such indorsement shall be delivered (o the person or " persons authorized lo make registry and grant certif- <* icates of registry, otherwise such sale, or contract or " agreement for the sale thereof, shall be utterly null " and void, to all intents and purposes whatsoever ; " and such person or persons so authorized to make " registry, and grant certificates of registry, are hereby " required to cause an entry thereof to be indorsed on " the oath or affidavit, upon which the original certifi- " cafe of registry of such ship or vessel was obtained, " and shall also make a memorandum of the same " in the book of registry, and shall forthwith give [ 47 ] " notice thereof to the commissioners of his Maj- " esty's customs in England and Scotland, under whom " they respectively act." '* FORM OF INDOHSEMKNT ON CHANGE OF " PROPERTY. " Be it Remembered, That [ I, or we] [names, resi- " dence and occupation of the persons selling] have this " day sold and transferred all [my, or our] right, share, " or interest in and to the ship, or vessel [name of the " ship or vessel] mentioned in the within certificate of " registry unto [names, residence, and occupation of the "purchasers]. Witness [my, or our hand or hands] " this [dale in words at full length]. " Signed in the presence of " [Two witnesses]." 18. Instead, however, of this indorsement, in case of a partial transfer of property in the same port, the ship may, under certain circumstances, be registered anew. For the last statute(r), reciting that by the statute of King William before referred to, it is enacted, " That (r)34 Geo. 3 c. 68. *. 21. 62 PART I. CHAP. H. " in case there be any alteration of property in the same 11 port, by (he sale of one or more shares in any ship, " after registering thereof, such sale shall always be "acknowledged by indorsement on the certificate of the " register before two witnesses, in order (o prove [ 48 ] ** that the entire properly in such ship remains " to some of the subjects of England." And further reciting, " That it is expedient to authorize and '* require the proper officers empowered lo register <: ships and vessels, and to grant certificates thereof, " to issue registers de novo, in any case where part of " the property of any ship or vessel shall be so trans- " ferred, if the owners or proprietors of such ship or 4C vessel, who were owners thereof at the time such ship " or vessel was last registered, and whose property " therein has not been so transferred, shall be desirous " of having a certificate of registry de novo, instead of " the indorsement on the old rtgister, as now required," proceeds to enact, " That in case there shall be any " alteration of property in the same port, by the sale " of one or more shares in any ship or vessel, after reg- " isfering thereof, and the owner or owners, proprietor " or proprietors, of such ship or vessel, who were " owners or proprietors thereof at the time such ship "or vessel was last registered, or whose property there- " in has not been so transferred, shall be desirous of " having the ship or vessel registered de novo, it shall " and may be lawful to and for the proper officers era- " powered to register ships and vessels, and to grant " certificates thereof, and such officers are hereby au- " thorized and required to register every such ship or " vessel de novo, provided all the rules, regulations, and " conditions of the before recited act, passed in the PROPERTY IN BRITISH SHIPS. 63 "twenty-sixth year of the reign of his present Majesty, '* and of all olher laws in force concerning the " registry of ships and vessels de novo, be com- [ 49 ] "plied with." (1) 19. SECONDLY. When an alteration takes place dur- ing the absence of the ship from the port to which she belongs. (1) Whenever a registered ship of the U. S. is sold or trans- ferred in whole or in part to a citizen of the U. S. she must be registered anew by her former name,and the requisites of the law in common cases of registry must be complied with, other- wise she ceases to be a ship of the U. S. And in this case her former registry must be given to the collector,to whom appli- cation is made for the new registry. And if the certificate of registry is not delivered up, upon such sale or transfer, the owner forfeits five hundred Dollars,unless the same is lost, de- stroyed, or unintentionally mislaid, and oath or affirmation made thereof. Act, 31. December, 1792. sect. 14. When the register of a ship is delivered up agreeably to law to the collector of the district where it was granted, the bond given at the time of granting it, is to be cancelled ; but if deliv- ered up to any other collector,he is to give a receipt or acknowl edgment of the delivery, and specify the time when ; and upon this receipt being produced to the collector, who granted the register, he is to cancel the bond. ibid. sect. 18. In case of a sale and transfer by process of law, if the former owners do not surrender up the register, upon proof of the facts, to the Secretary of the Treasury, he may direct the collector of the district to which the ship belongs, to grant a new register to the purchasers, upon their complying with the other condi- tions, required in ordinary cases. Act, 2. March, 1797. sect. 1. 3 U. S. Laws, 383. 64 PART I. CHAP. n. In this case the last statute (a;) provides, " That if "any ship or vessel shall be at sea, or absent from the "port to which she belongs, at the time when such al- " teralion in the property thereof shall be made as "aforesaid, so that an indorsement or certificate (y) *' cannot be immediately made, the sale, or contract or *' agreement for the sale thereof, shall notwithstanding "be made by a bill of sale, or other instrument in writ- r implied power from the owner to sell, in case of extreme necessity,still the ship must (as between British subjects) be transferred by the master, according to the requisitions of the registry acts, if she specifically subsists as a ship, but perhaps it would be otherwise where she was a mere wreck. Reid v. Darby. 10 East. 143. See ante as to master's right to sell, p. 7, 13 66 PART I. CHAP. II. "a copy of such bill of sale, or other instrument in "writing, be delivered, nor an entry thereof indorsed " on the oath or affidavit, nor a memorandum thereof " made in the book of registers, nor notice of the same " given to the commissioners of the customs in the man- "ner before-mentioned, the same may be done at any " time wilhin star months after such transfer shall have " been made ; and that within ten days after such "owner or owners, or some person legally au- [ 51 J " thorized for that purpose, by him, her, or " them, shall arrive in this kingdom, if such ship or " vessel shall then be in any port of this kingdom, and " if not, then wilhin ten days after such ship or vessel "shall so arrive, an indorsement shall be made by the " owner or owners, or some person legally authorized " for that purpose by him, her, or them, and a copy " thereof shall be delivered in manner herein-beforc " mentioned, otherwise auch bill of sale, or contract or *' agreement for sale thereof, shall be utterly null and "void to all intents and purposes whatsoever; and "entry thereof shall be indorsed, and memorandum "thereof made in the manner herein-before direct- ed." (1) 21. In all cases, howe\-er, when a ship is required to be registered anew upon any transfer of the property wholly or in part, the registering officers are authoriz- (1) As no indorsement is required by the act of the U. S.,no provision exists similar to that contained in this section. And no provision in any case seems to be made, whereby a partner or agent, who is abroad, may take the oath or affirmation, or comply with the other conditions required by law to obtain a registry of a ship. PROPERTY IN BRITISH SHIPS. 67 ed and directed to require the bill or otber instrument of sale (hereof to be produced ; and, if it is Dot produc- ed, they are not to register the ship anew, but four of the commissioners of the customs in England, or three in Scotland, or the commander in chief in Guernsey, Jersey, and the foreign territories, maj, if application is made to them, upon due consideration of the par* ticular circumstances of the case, give direction for registering the ship anew, and granting a certificate, not* withstanding the bill or other instrument of sale [ 52 ] shall not have been produced, if all other regula- tions are complied with (6). (1) 22. Under this head of transfer of property, it seems fit to notice the provisions made by the Legislature to prevent such transfer from being made to a foreigner. It must be obvious, from what has been already pointed out, that a transfer of any share to a foreigner would deprive the ship of its privileges, and consequently greatly prejudice the owners of the other shares; and, to prevent this evil, it was enacted by a statute, made in the thirteenth year of the present reign (c), and which is now in force, " That no foreigner, or other person or " persons whatsoever, not being a natural-born subject " of bis Majesty, his heirs or successors, shall be entit* " led to, or shall purchase, or contract for, any part or (6) 34 Geo. 3. c. 68. . 20. (c) 13 Geo. 3. c. 26. (1) So the act of the U. S. requires that there should be pro- duced a bill of sale, or other instrument in writing, wherever there is a transfer of the ship, before she can be registered anew. Act, 31. December, 1792. sect. 14. And no authority seems given to any officer to dispense with this rule in any case. 68 PART I. CHAP. II. *' parts, share or shares, of any British ship or vessel " whatsoever, belonging only (o natural born subjects " of his Majesty, his heirs or successors, without the " consent in writing of the owner or owners of three- '* fourth paits in value, at least, of such ship or vessel, " for that purpose first had and obtained, and indorsed " on the certificate of the register of such ship before "two witnesses; and all agreements, contracts, purcha- " sea, and sales of any part or share of any British ship " or vessel, belonging only to natural-born sub- ejects of bis Majesty, bis heirs or successors, [53] " made, entered into, contracted for, or conclud- " ed, by any such foreigner, or other person or persons, " not being a natural-born subject or subjects of bis " Majesty, his heirs or successors, without snch con- " sent first had and obtained, and indorsed as aforesaid, " shall be, and are hereby declared to be absolutely null " and void, to all intents and purposes whatsoever." That part of the statute of the twenty -sixth year of the present reign, which provides for the surrender of the certificate in the case of transfer to a foreigner, has been already noticed (d) : I have not found any statute which requires a new register alter a transfer of prop- erty wholly or in part to a foreigner. Doubtless, if a ship transferred to a foreigner should be re-transferred to a subject, so as to become entitled to claim again the privileges of a British ship, a new register would be necessary to revive the privileges ; yet this does not appear to satisfy the words used in a section of a late statute (e), which, if I rightly understand it, requires a ship to proceed to some port in order to be registered anew, in case of a transfer of part made to a foreigner, (rf) Chap. 60. . 15. ante, page 36. (e) 34 Ceo. 3. . 68- . 22. PROPERTY IN BRITISH SHIPS. 69 which, for want of the consent of the other part-owners, may be null and void in consequence of the before- mentioned statute of the thirteenth year of the present reign ; but, as I am not satisfied that I perfectly com- prehend the meaning of the words, I shall refer the reader lo (he Appendix, in which it will be found [54] at length (hat I may not mislead his judgment by abridging it (1). (1) There is no clause in the act of the U. S. requiring the assent of the other owners to the transfer of a part of a register- ed ship to a foreigner. But every such transfer, whether by way of trust, confidence, or otherwise, must be made known, otherwise a forfeiture is incurred of me ship in manner as is stated in note top. 37. Act, 31. December, 1792. sect. 16. It has moreover been the policy of the legislature of the U. S. for the purpose of encouraging ship-building among our cit- izens, to confer certain privileges on ships built within the U. S., even when owned by foreigners. These privileges are. not equal to the privileges enjoyed by citizens of the U. S., but are superior to those of foreign built ships. Such ships are entitled to be recorded. Every such ship must be recorded in the office of the collec- tor of the district in which she was built. In order to entitle her to be recorded, the carpenter who built her,is to make oath or affirmation before the collector, that he built her, and is to give a description of her,similar to that required on the registry of a new ship. She must also be measured, and a certificate of the admeasurement be made and countersigned,and a certificate of the record be granted, in the same manner as is required in cases of registry. Act, 31. December, 1792. sect. 20. 21. 22. Every change of the master must be indorsed on the certifi- cate, and recorded arid transmitted in the same manner, as in tases of registered ships, ibid. 23. On entry, the certificate of 70 PART I. CHAP. LL 23. Having thus detailed Ihe several legislative pro- visions on this important subject, I proceed to notice the record must be produced to the collector, where the ship is entered, ibid. 24. Neglect or refusal in either case, occa- sions a forfeiture of the privileges of a recorded ship. The preceding notes refer to ships employed as registered or recorded ships in foreign trade. It may not be amiss per- haps to add some of the provisions that affect ships engaged in domestic trade. As to ships engaged in the coasting trade or fisheries, in order to entitle them to the privileges of ships of the U. S., in such employment, they nviet be enrolled, and for that pur- pose must (as has been before stated) possess the same qualifi- cations, and the same requisites must be complied with, as are made necessary for registering ships. And the same duties and authorities are given and imposed on all officers respectively, in relation to such enrolments, and the same proceedings are to be had, in similar cases, touching such enrolments ; and the ships so enrolled, with the master or owner, are subject to the same requisites, as are in those respects provided for ships reg- istered. A record of the enrolment is to be made, and a certi- ficate or copy granted, in the form prescribed by law. Act, 18. February, 1793. ch. 8. sect. 1. 2. 2 U. S. L. 168. But if a ship be under twenty tons, she need not be enrolled, but must be licenced, ibid. Ships so enrolled, must moreover have a licence in force for the coasting trade or fisheries, before they are en- titled to the privileges of the ships of the U. S. And in order to the licencing of a ship, the husband or managing owner, must give a bond with one or more sureties, in a sum varying according to the tonnage of the ship, from one hundred to one thousand dollars ; that the ship shall not, during the existence of the licence, be engaged in any trade whereby the revenue of the U. S. shall be defrauded. And the master must also swear PROPERTY IN BRITISH SHIPS. 71 the judicial determinations, to which they have given rise. It may be proper also to observe, that similar or affirm, that he is a citizen of the U. S., and that the licence shall not be used for any other ship, or any other employment, than that for which it is specially granted, or in any trade or business, whereby the revenue of the U. S. may be defraud- ed. And if the ship be of less burthen than twenty tons, the husband or managing owner, must swear or affirm that she is wholly the property of citizens of the U. S. The licence is then to be granted in the form prescribed by law, and is in force generally for a year only ; and while she continues to be owned by the same person, and to be of the same description, and employed in the same business as are stated in the licence, ibid. sect. 4. 5. Registered ships may be enrolled by giving up their regis- ter, and so vice versa enrolled ships may be registered upon giv- ing up their enrolment and licence. And when any ship is in another district than that to which she belongs, the collector of such district, upon the application of the master or commander, and his taking an oath or affirmation that, according to his best knowledge and belief, the property remains as stated in the register or enrolment, proposed to be given up, and upon his giving the bonds required for granting registers, shall make the exchanges aforesaid. The enrolment and licence, or register so granted, must be delivered to the collector of the district where the ship belongs, within ten days after her arrival there- in, and be by him cancelled, under the penalty of one hundred dollars to be paid by the master, ibid. sect. 3. Ships not enrolled and licenced, or under twenty tons bur- then, not licenced, (other than registred ships,) if found trad- ing between district and district, or between different places in the same district, or carrying on the fisheries, pay the same fees and tonnage as foreign ships, if laden with goods, the growth 72 PART I. CHAP. II. regulations have been made with respect fo Irish ships (/) (0 T/J /r *' A Statute, 27 G*. 3. c. 23. Statute of the United King- doni, 42 Geo. 3. c. 61. or manufacture of the U. S. only, (distilled spirits excepted) or in ballast ; but if having on board any articles of foreign growth or manufacture, or distilled spirits, other than sea stores, are, with their lading, forfeited, ibid. sect. 6. Ships found with a false licence, or making use of a licence belonging to another ship, are together with their cargo forfeited.ibid. sect. 5. Ships licenced, if transferred to any person not a citizen of, and resi- dent within the U. S., or if employed in any other trade than that for which they are licenced, are together with their cargo forfeited, ibid. 32. Ships enrolled and licenced, if proceeding on a foreign voyage without delivering up the enrolment and licence, and being duly registered, are, together with the cargo imported, forfeited, ibid. sect. 8. But ships licenced for the fisheries, may obtain permission to touch and trade at foreign ports, and may thereupon take on board goods of foreign growth or manufacture ; but if found with such goods on board within three leagues of the coast, without having such permission are, together with such goods imported therein, forfeited, ibid. sect. 21. But these forfeitures do not apply to any part of the cargo, which is owned by other persons than the master, own- er or mariners of the ship. ibid. 33. Registered ships are not interdicted from trading between district and district, but their privileges are not as great as those (1) The registry acts of the U. S. have not as yet, given rise to many judicial decisions. But the following have been re- ported, and may be properly introduced in this place. Courts of law will not lend their aid to sanction any proceed- ings in violation of the registry acts; and therefore they will not enforce contracts which are made in fraud of them. There- fore where one Coulson, an alien, had employed funds to a con- PROPERTY IN BRITISH SHIPS. 73 The general object of the statutes has been already pointed out, namely, the restriction of the commercial privileges formerly enjoyed by British owners of ships, wherever built, to British owners of ships, built within the dominions of his Majesty. All such of licenced ships, ibid. sect. 6. 20. 33. Foreign ships also may trade in like manner in goods of the growth or manufacture of the U. S., but not of foreign countries, ibid. sect. 6. 24. The licences granted arc to be numbered progressively, be- ginning anew every year. ibid. sect. 7. Ships licenced or en- polled, or registered anew, or exchanged the one for the other, are to hold their former name. ibid. sect. 7., and are to have their names and the ports where they belong painted on their sterns, ibid. sect. 11. Every change of the master of such ships is to be reported to the collector and indorsed upon the li- cence, and a neglect in this particular, subjects the ships to pay the fees and tonnage of registered ships, ibid. sect. 12. There are various other regulations respecting ships em- ployed in the coasting trade and fisheries, in the act above cited ; but the foregoing seem to be the most material to be noticed in these annotations. siderable amount in foreign trade, of which Joseph Anthony &: Co., who were American citizens, were the ostensible owners, and the ships were registered by them as their own, and the cargoes entered at the custom house as their own ; for which Coulson paid them a commission ; and afterwards cross aotions were brought and referred, and a balance reported to be due to Anthony &. Co. ; upon objection being made to the report of the referees, on the ground that the balance grew out of these Hlicit transactions, the Supreme Court of Pennsylvania decided against the affirmance of the report, and said that the positive provisions of the laws of the U. S. respecting registered ships, 14 74 PART I. CHAP. II. ships are entitled and required to be registered ; but by reason of the particular penning of that clause of ihe statute, which subjects ships to forfeiture for departing from port without being registered, it seems that the forfeiture is imposed on such ships only, as were in ex- istence at the passing of the statute, and departed from the natural policy of the navigation system, good faith towards belligerent powers, and the very foundations of morality were violated in these transactions ; and that no court of justice in the U. S. could lend its aid, at any time, or in any degree, to recover a debt originating in a source so forbidden, so foul, and so pernicious. Maybin v. Coulson. 4 Ball. Rep. 298. The same doctrine was held in Duncanson v. M'Lure. 4 Call. Rep. 308, which was trover brought by an alien owner to recover a ship of a purchaser under a foreign condemnation and by the Cir- cuit Court of the U. S. in Murgatroyd v. M'Lure- 4 Call. Rep. 342, which was an action of replevin brought by the plaintiff, as trustee of Duncanson, to recover the same ship. It seems to have been thought by the Supreme Court of Pennsylvania at one time, that that part of the oath required to be taken by the owner or one of the owners upon application for registry, " that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confi- dence, or otherwise, interested in such ship or vessel, or in the profits or issues thereof, ? 'was applicable only to the case where an owner resides in a foreign country as a consul, or agent or partner of a house consisting of citizens of the U. S., and not to cases where the owner was resident in the U. S. Murgatroyd v. Crawford, 3 Ball. Rep. 491. But see the Act of 31. Decem- ber, 1792. sect. 4. 7. 16. 17. And in a subsequent case, the same court declared that the doctrine in the above case was er- roneous and untenable. Duncanson v. M'Lure. 4 Dall. Rep. 308. PROPERTY IN BRITISH SHIPS. 75 their port without being registered, after their first arrival there, at the expiration of the notice thereby direcled(g') : and it is expressly declared by the second statute (/), that all ships not entitled to the privileges of a British ship, or of a ship owned by British subjects (which lat- Lord Eldon in the case of Long v, (J-) 26 Geo. 3. c. 60. s. 32- But Duff, 2 Bos. & Pul. 209. see the judgment pronounced by (A) 27 Geo. 3. c. 19. . 13. The 4th sect, ofthe act of 31. December, 1792, having pro- vided, that in case any of the matters of fact in the said oath alleged, which shall be within the knowledge of the party so swearing, shall not be true, there shall be a forfeiture of the ship and appurtenances, in respect to which the oath shall have been made, or ofthe value thereof, to be recovered with costs, of the party taking oath, a question has arisen whether, upon a forfeiture, the property of the ship actually vested in the U. S., before any election was made to proceed against the ship, or against the person taking the oath ; and the Supreme Court of the U. S. have held that it did not so vest, and that therefore no action would lie against the assignees of a bankrupt, (who had taken the oath) to recover the purchase money received by them upon a sale ofthe ship, made by them before a seizure of the ship. U. S. v. Grundy, &c. 3 Cranch. Rep. 337. And it seems that the ship, in such case,cannot be seized in the hands of a bonafide purchaser, for the offence. See the case ofthe Anthony Maugin, in the District Court of U. S. in Maryland, cited in a note to 3 Cranch. Rep. 356. The act of U. S, above cited, in the 14th sect, having re- quired " that when any ship or vessel, which shall have been " registered pursuant to this act, or the act hereby in part re- " pealed, shall, in whole or in part, be sold or transferred to a " citizen or citizens of the U. S., or shall be altered in form or " burthen, &c. ; in every suck cor?e, the ship or vessel shall be 76 PAKT I. CHAP. II. ter have been already shewn to be such only as were so owned and registered under the old slat- [ 55 ] utes before the commencement of the new re- striction) and all bhips not registered according to the directions of theirs/ of ihe new slalutes, shall, although owned by his Majesty's subjects, be deemed alien ships, " registered anew by her former name, according to the direc- " tions herein before contained,(otherwise she shall cease to be 'deemed a ship or vessel of the U. S.,)and her former certifi- " cate of registry shall be delivered up to the collector, to " whom application for such new registry shall be made, at the " time that the same shall be made, 4*c. 4*c." a question has been very elaborately argued, as to the time when the new registry should be made, in order to preserve to the ship her American character. The question arose upon a bond given for the pay- ment of duties on goods imported in a ship, and the amount to be liquidated,whether foreign or domestic duties, was disputed. The facts of the case were as follows : The registered ship Missouri belonging to Mess. W. & F. sailed from Philadel- phia to Canton. While at sea with her register on board, she was in part sold by Mess. W. &. F. to J. G. K. &, others, citi- zens of the U. S.,but was not then registered anew by her former name, nor was there made any instrument in writing, in the rture of a bill of sale, writing at length the certificate of re- gistry. After the ship returned from her voyage, and before any report or entry, J. G. K. and the others, the vendees, made a parole resale of their part of the ship to Mess. W. & F., so that the whole revested in them ; and, on the same day, after- wards, the register was delivered up by the master to the col- lector, and the ship duly reported and entered; and F., one of the firm of Mess. W. & F., upon the entry offered to make oath, that the register contained the names of all the persons, who were then owners of the ship ; and stated the preceding facts. PROPERTY IN BRITISH SHIPS. 77 and be liable to the same penalties and forfeitures as alien ships. It lately, however, became a question, whether a foreign-built ship could legally be owned by British subjects, and employed by them in the same trade, in which such a ship might be employed by aliens. The question arose in an action (i) upon a policy of ia- (f) Lonffv. Duff, 2 Bos. &. Pul. 209. About a month afterwards, Mess. W. & F. made a bill of sale to J. G. K. & others, reciting the register, and thereupon the ship was registered anew as the property of Mess. W. & F. & K. & others as joint owners ; and about a fortnight afterwards, K. & the others, reconveyed their part by a legal bill of sale to Mess. W. & F., and the ship was thereupon registered anew as the property of Mess. W. & F. The Supreme Court of the U. S. in delivering their opinion said, that the question depend- ed much on the legislative meaning of the word when, in the section, whether it designated the precise time when a partic- ular act must be performed, in order to save a forfeiture, or an occurrence which shall render that particular act necessary. It tnight be used either way ; but, in their opinion, it was in this section used in the latter sense. No man could contend that the transfer of a ship, and the obtaining of a new register, were to be simultaneous. The one must precede the other, and un- less the transfer, or the repairs and alterations of the hull were in all cases to be made in the collector's office, a reasonable in- terval between those acts must be allowed, and this reasonable interval must depend on the nature of the case. Upon a trans- fer of a ship, while at sea, a new register is to be obtained, but this cannot be before the return of the ship, because the old cer- lificate of registry must be given up before the new one is to be granted. It is then a clear consequence of establishing, that a new register was not required before the arrival of the ship Missouri, that on her arrival in port, she was an American ship, 78 PART I. CHAP. II. surance on the ship Lucy, at and from Padstorv in Corn- nail to Leghorn. The ship was Spanish-built, pur- chased by the Plaintiff, a British subject ; was not regis- tered ; had paid the alien duties ; had sailed without convoy, and without licence to proceed without convoy ; and had been captured on the voyage. The statute and her cargo, when imported into the U. S., was liable to the duties imposed on American, and not on foreign bottoms. Il so,the subsequent failure to registerthe ship,would require very plain words to charge them with higher duties, and it seemed to the court that the words of the act, that the ship should be registered anew upon every transfer,otherwise she should cease to be deemed a ship of the U. S., operated on future, not on past transactions. The meaning is, that she shall so cease after the lapse of the time, when she ought to have been registered anew. But before that time had elapsed, the Missouri had, as an American ship, actually imported a cargo, whose liability to duties had commenced. In the case of an alienation to a foreigner, the privileges of an American bottom, are ipso facto forfeited ; but,if to a citizen,they are not forfeited until after the ship ought to have been registered anew, and the oath which entitles her to enter as an American bottom, does not require such a new register as a preliminary. The court were further of opinion, that in this case the intermediate alienation and re- purchase of part of tLe ship had worked no forfeiture, and had created no necessity for a new register ; and that as the names of all the persons, who were then owners of the ship, were in the old register, the oath required upon entry could be fairl}- taken. But as to the point, at what time a failure to register anew would affect the ship with forfeiture of her American character, they gave no opinion. U. S. v. Willings, &x. 4 Cranch. Rep. 48. S. C. 4 Ball. Rep. 374. PROPERTY IN BRITISH SHIPS. 79 38 Geo. 3. r,. 76. (A;) had made it unlawful for any ships belonging lo his Majesty's subjects to sail without con- voy, and had rendered insurance upon such ships void, if they did sail without convoy, with an exception how- ever of " any ship or vessel, not required to be register- " ed," and Ihe cause therefore depended upon determ- ining whether or no the ship Lucy was a ship required to be registered. The noble Lord who then presided in the Court of Common Pleas, delivered the [56] opinion of the Court in the negative in a very elaborate argument, in which the principles and provisions of these statutes are commented upon and explained with all the depth of research and acuteness of penetration, that characterize his Lordship's mind. The result of his Lordship's reasoning, as expressed in his own words, is this: " A British owner of aforeign- " built ship may engage in neutral trade, and will be " liable to the alien duties; but it was not the policy of " the Legislature to prevent British subjects from em- " ploying foreign ships in neutral trade, in as ample a " manner as they can be employed by aliens." (I) (fc) Sections 1. 4. 6. This act expired on the signing of the prelim- inary articles of the last peace. (1) The act of the U. S. has no prohibitory provision, and therefore the principle of this case is undoubtedly applicable to American owners of foreign built ships. Ships so owned, are entitled to receive from the custom house a document for their protection, called a certificate of ownership, and are entitled to certain privileges by the express enactments of the legislature. See Act, 14. April, 1802. ch. 26. 6 U. S. L. 72. Act, 2. March. 1803. ch. 69. 6 U. S. L. 219. This certificate of ownership is sometimes called a sea letter, but that term seems most correct- 80 PART I. CHAP. II. 24. The statutes require the officers to make a regis- try de novo, and fo grant a new certificate, \nfive cases : First, where the old certificate has been lost or mis- laid (I) ; Secondly, where the certificate is wilfully de- tained by the master (m) ; Thirdly, where, after a trans- fer of part of the property in the same port, the owners of the part not transferred desire a new registry (n) ; Fourthly, where the ship is altered in form or burth- en (o); and, Fifthly, upon any transfer of property to another port (p). The statute of King William also required a new register in case of a change of the ship's name (p), but this change is now altogether prohibit- ed (qf). In cases not allowed by the statutes a new register ought not to be granted; and, there- [67 ] fore, where the commissioners of the customs re- ft) 26 Geo. 3. c. 60. *. 22. (p) 7 & 8 Will. 3. c. 22. . 21. (m) 28 Geo. 3. c. 34. s. 14.; (9) 26 Geo. 3- c. 60. *. 19. The 34 Geo. 3. c. 68. . 19. stat. 34 Geo. 3 c. 68. . 22. appears () 34 Geo. 3- c- 68. *. 21. to provide for another case- See (o) 26 Geo. 3. c. 60. *. 24. before p. 53. ly applied to the sea letter, prescribed by our treaties with for- eign powers, eo nomine, although in our act of 1st June, 1796. ch. 45. 3 U. S. L. 356. it is denominated a passport. And a question has arisen upon a policy of insurance, where a ship sailed with a certificate of ownership, and the policy contained a warranty that the ship sailed with a sea letter, whether such certificate was a compliance with the warranty. The Supreme Court of New York held that it was not, because a sea letter was a document known and prescribed by treaties with the U. S., and no parole evidence could be admitted to shew that in com- mon parlance, it was understood to be a certificate of owner- ship. This decision howe ver was reversed by the Court of Errors. Sleght, &c. v. Hartshorne and Rhinelander. &c. 1 John. Rep. 192. 2 John. Rep. 531. PROPERTY IV BRITISH SHIPS. fused to order a new one to be made, upon the applica- tion of certain insurers, to whom a major part in value of a ship had been assigned upon abandonment thereof to them, the owner of the remaining part, who was not the master, having obtained possession of the certificate and refused to produce it, or allow an indorsement of the transfer to be made upon it ; the Court of King's Bench held the refusal of the Commissioners to be just (r). 25. A bill of sale from the original builder to the first purchasers of a new ship, need not contain a recital of a certificate of registry (), nor can properly do so, because regularly the ship is not to be registered until it comes to their hands, although they must cause it to be registered before the commencement of a voyage. Upon the legislative provisions relating to subsequent transfers of Ihe property, the following cases have been decided. It was decided not long after the passing of the stat- ute of the twenly-sixth year of the present reign, that a bill of sale, absolute upon the face of it, although in reality intended only as a security for the pay- [58] ment of a promissory note, made while the ship was at sea, and not containing a recital of the certificate, was for that reason absolutely void ; and that, although the grand bill of sale was delivered at the time of the transaction, and the person to whom the transfer was made, took possession of the ship, as soon as she returned to this country, yet the assignees under a commission of bankrupt, which had issued in the M The King v. The commissioners denovo, Mich. T. 42 Geo. 3. of the Customs, upon an application for (*) Oxenham v. GibbsSfanothtr, in a mandamus to them to order a register B. ft. Trin, Term 1807, 15 82 PART I. CHAP. H meantime against the original owner, were entitled to the ship, and the vendee had not even a lien upon it, either legal or equitable, to secure the payment of the note (t). The contents of the certificate might have been learnt at the Custom House. 26. But where a bill of sale of uprise ship was made while the ship and the certificate of registry were at sea ; and in the recital of the certificate in the bill of sale, the sentence of condemnation was said to be dated on the 28th day of May 1783, and the certificate of free- dom granted on the 23d day of January 1783, which agreed with an abstract of the register in one of the of- fices at the Custom House, from which the recital was taken, but differed from the certificate itself, and from the abstract of it in three other offices at the Custom House, in all of which the sentence of condemna- tion was said to be dated, as in truth it was, on [59] the 28th day of May 1782 : the Court held, that this inisrecital thus occasioned did not vitiate the bill of sale, the mistake being evident from a comparison of the dates ; it being impossible that (he ship should have been made free before condemnation. And Lord Kenyan added, "even supposing the parlies had had an " opportunity of seeing the original certificate, it is too " much to say, that a mere clerical mistake should ren- " der it null and void (*>)" 27. On the other hand, where in the recital of a cer- tificate the word " oath" was used instead of " affirma- " /ton," "sworn" instead of "affirmed;" the allega- tion that another part-owner was not resident within (0 Holiest on Sf others v. IIibbe"t Sf C a. 571 . others, Mich. T. 30 Geo. 3. 3 Ten. (t) Kolleston Sf others v. Smith Rep. in K. . 406. and .'Hbbert Sf oth- 4 Ter. Kep. in K. B. 161. trs v. Rolleston Sf others, 3 Bro. Ch. PROPERTY IN BRITISH SHIPS. 88 twenty miles omitted ; and the name of the Master changed ; although the date of the registry and con- demnation, the name and dimensions of the ship, and other particulars, were truly stated, the bill of sale was held clearly to be void (M). 28. a. It has been decided, however, in a case (x), which depended upon the construction of the statute of the twenty-sixth year of the present reign, that the in- dorsement, which that statute requires to be made on the certificate of registry, need not be recited in a bill of sale of the ship. Indeed neither that statute, 60 ] nor the statute of King William, expressly ren- dered such indorsement essential to the validity of a transfer of the property as between the parties, although the ship might be liable to forfeiture for the omission of it : which defect, as we have already seen, is supplied by the last statute (?/) ; but even this statute does not require the indorsement to be recited in the bill of sale, nor can it, when it relates to the same trans- fer, properly be recited ; because it is in its own nature subsequent to the execution of the bill of sale. It will, however, be always prudent, although perhaps not es- sentially necessary, to recite in a second, and every sub- sequent bill of sale, the indorsement made in pursuance of every previous transfer. 28. 6. The only cases in which the Legislature has limited a time for complying with any of the requisites of the statutes, are, the residence of the owners out of the King's dominions under certain circumstances (s), and the ship's being at sea, or absent from her port, so (u) Westerdellv. Dak, 7Ter. Rep. (y) 34 Geo. 3. c. 68. s. 15. ante, page in K. B. 306. 46. (x) Cappadote v. Ctdnor, 1 Bos. $ (z) 34 Gea. 3. c.68. a. 17, ante, page Put. 43. 50. 84 PARTI. CH\P.H. that an indorsement on the certificate cannot be imme- diately made (a). In the latter case, the indorsement must be made, and a copy thereof delivered to the offi- cers within fen days after the ship's return to the port to which she belongs ; and although on some of the ten days, and even on the last of fhem, being [61 ] holiday*, no business be done at the Custom House, still, if the limited time be suffered to expire, the property will not pass, notwithstanding the indorse- ment be made, and the copy delivered on the next day of business (6). In the cases, in which no time is fixed by the Legislature, the property will not vest in the vendee under a bill of sale, until the requisites of the statutes are complied with : and if, between the execu- tion of the bill of sale and such compliance, the interest of a third person takes effect, as in the case of the bankruptcy of the vendor, the transfer will be wholly void. And, therefore, in a case where one Kirkpalrick executed to Charnock a regular bill of sale of two-third parts of the vessel then at sea, and became bankrupt be- fore Charnock delivered a copy thereof to the officers of the customs at the ship's port of registry, although this was done soon after the bankruptcy, and a regular in- dorsement made on the certificate, and notice thereof duly given within ten days after the ship's return, the assignees recovered the bankrupt's share from Charnock, who had obtained possession of the ship. In this case it was contended, on the behalf of Charnock, that a rea- sonable time for complying with the requisites ought to (a) 34 Get. 3. c. 68. *. 16, ante, page Lord Ellen/borough, Ch. Justice. For a 49. further account of this cause, and other (6) Gillespey Sf others v. Mestaer, points connected with it, See Section* Guildhall Sit. after T. T. 1804. before 32. Sf 33. of this chapter; PROPERTY IV BRITISH SHIPS. &> be allowed ; and that when they were complied {62] with, the sale should relate back to the time of he execution of the bill of sale, and take effect from thence. But the Court held otherwise, and Mr. Justice Lawrence, in delivering the judgment, said, *' The public will be most effectually served by holding, ""that uo interest shall pass from any owner in British " ships to any other, until (he public has that inforrna- t tion which is so essential to its commercial welfare : " and the objects of the parties to such contracr will be " best consulted by allowing the longest time to comply " with the requisites of the act, so as that, which was " meant to operate as a certain means of compelling " men to give that information, be not destroyed or '* weakened. And this will be done by construing the " statute as enacting, that no bill of sale or other instru- " ment shall have any operation or effect, until the re- " quisifes imposed on the parties to the sale are coin- " plied with ; and by not allowing any relation to hold " good, so as to make the conveyance effectual from " any antecedent time (c)." I apprehend the learned Judge must be understood to speak, with reference to the facts of the case before the Court, of such requisites only as may, according to the circumstances of the transaction, be immediately complied with : and did not mean to intimate, that if Charnock had delivered a copy of his bill of sale to the officers before the bankruptcy of Kirkpatrick, so as to have enabled them to make the proper in- [63] dorsement on the affidavit, he would not thereby have acquired an inchoate title, which might have been perfected by the indorsement made on the certificate within ten days after the ship's return. (c) Moss Sf otJiert v, Charnock. 2 East. 399. 86 PART I. CHAP. IT. But although no time is prescribed for making the indorsement upon a transfer of property in Ihe ship's port, jet it must be made while the certificate continues to be a subsisting operative instrument. And a person, who having purchased a ship under a regular bill of sale, instead of taking the proper indorsement, delivered up the certificate itself to the officers, by whom it was cancelled, and a new register granted, was held not to obtain a good title through the medium of an indorse- ment made three years afterwards on the cancelled in- strument, though dated within a few days of the bill of sale (d). 28. c. It has been already mentioned, that, when the property of a ship is transferred to another port ; a new register may be grunted (e). In such a case, however, the new register alone will not be sufficient to give va- lidity to a bill of sale: such olhsr of the legislative re- quisites, as are applicable to the case, must also be com- plied with. This point was decided in the following eases. One Ward (/), being the sole owner of the ship Fishbonrne, belonging to the port of Newcastle and reg- istered there, sent the ship on a voyage to the Baltic, and while she remained there under the restraint [64] imposed by the late Emperor of Russia, made a bill of sale of one-third part to Heath, who immediately delivered a copy of the bill of sale to the officers of the customs at Newcastle: the officers caused an entry thereof to be indorsed on the affidavit upon which the original register was obtained, and a memo- randum to be made in their books of registers (g), but (rf) Moss if another v. Mils Sf (/) Heath r. ffubbard, 4 East. 110. another, 6 East 144. (g) According to 54 Geo. 3. c. 68. (e)7 $ 8 Will. c. 22. sect. 21. sect. 16. ante, page 49- ante, page 56. PROPERTY IN BRITISH SHIPS. 87 by accident omitted to give notice thereof to the com- missioners at London. After this, and during the ab- sence of the ship, IVarA made a bill of sale of ihe whole ship in consideration of 4,000/. to Hubbard, who re- sided at London, and the ship afterwards coming to the port of London, Hubbard obtained a new register in lhat port, and sold the ship there ; but he did not send a copy of his bill of sale to the officers of the customs at Newcastle* Heath brought an action against Hubbard, and obtained judgment against him for the amount of one-third of the money received by the latter on the sale : the Court being of opinion lhat Heath) who had done all that the statutes required of him, the ship not having returned to Newcastle, bad acquired a property under the bill of sale to him, and that the bill of sale to Hubbard was void, by reason of bis omission to send a copy thereof to the Custom House at Newcastle. Soon after this decision, some of the assignees of Ward, who had become a bankrupt, brought an aclion against Hubbard (g) lo recover the value [65] of ihe remaining three- four! hi of this ship ; Ibe validity of the sale to Hubbard was again argued ; and it was contended, that as the entire interest in Ihe ship was sold during her absence from her port, to a person residing at another port, which was become her home, the new register at that port was sufficient without any notice of he sale to the officers at Newcastle. But Ihe Court held these measures to be necessary in the case both of an entire and partial transfer of property made Cf) Bloxam Sf others v. Hubburd, ted in a special yerdict, and the case ar- 9 tast 407. A third action was brought gued in the Exchequer Chamber in T by the person claiming the remaining T. 1807. The Court directed a second interest m tius ship. The facts were sta- argument. 8 PART I. CHAP. ft. while a ship is at sea. In a subsequent case (/<) also, the effect of a new register obtained in a port, to which a ship had been transferred, was again brought under the consideration of the Court of King's Bench, and it was again decided, that such new register would not supply the want of a compliance with the statutes of the present King. One Fair/ess, who resided at Bishop Wenrmouth in the county of Durham, being the sole owner of a ship belonging to and registered in the port of Sunder/and, on (he 31s/ of August 1805 sold the ship, which was then in the port of London, for a valuable consideration, to persons residing in London, and exe- cuted a regular bill of sale thereof, and made the requi- site indorsement on the certificate of registry. No copy of the bill of sale, or indorsement, was delivered [66 ] to the officers of the customs at Sunderland : but on the 9th of September following (he vendees exhibited the bill of sale to the officers of the customs at London, and delivered up to them the certificate of registry with its indorsement, and obtained from them a new register in their own names. The officers at London gave immediate notice of this transaction to those at Sunderland, who made an indorsement on the oath there, purporting only that the ship had been reg- istered anew in the port of London on the 9th of Sep- tember 1805. The ship was afterwards employed as belonging to the port of London. On the '29th of Sep- tember Fairless became a bankrupt, and his assignees afterwards brought an action against the vendees to re- cover the value of the ship. On behalf of the vendees it was contended, that this case was out of the provis- ions of the late statute, and was provided for only by (K) Hayton Sf another v. Jackson tf another, 8 Eat. 511. PROPERTY IN BRITISH SHIPS. 89 the statute T & 8 Wm. 3. c. 22. s. 21. which requires a new registry upon the transfer of property to another port ; and that as such new registry had been obtained, the title of the vendees could not be impeached. It was argued that the sixteenth section of the 26th Geo. 3. c. 60. and the fifteenth section of the 34th Geo. 3. c. 68. are both confined to transfers of property made m the port to which the ship belongs, and that the sixteenth section of the last mentioned statute is confined to a trans- fer made while the ship is so absent, as to render it impossible to make an indorsement on the certificate of registry. But the Court held that these two sec- tions were intended by the Legislature to embrace [67] every case, and therefore as the parties had not complied with either of them, their title was bad, and the assignees of the bankrupt entitled to recover (fe). It is obvious, that if a valid transfer could be effect- ed by means only of a new register granted to a vendee at a different port, without any entry made in the regis- ter-books of the ship's original port, that notoriety, which the Legislature has laboured to enforce, would not be obtained, and frauds might be practised, because the port of the original registry is the only place, to which a person desirous of obtaining information, can be ex- pected to resort. (fi) In the 16th sect, of the 34 er port, be not to deliver a copy of Geo. 3- c. 68. the Legislature ap- the bill of sale and indorsement to pears to have contemplated the the officers at the ship's original case of a ship's probable return to port, that the proper entry may her port, because an indorsement be made there, and also to exhibit is required to be made on the cer- the bill of sale, and deliver up the tificate within ten days after the certificate to the officers at the ship's return. Quere, whether the new port, and obtain a newrejis- most correct mode of proceeding, ter from them ? if the ship be transferred to anoth- 16 90 PART I. CHAP. II. 28. d. The requisites of these statutes are of two kinds ; one to be performed by the parties to the con- tract ; the other, by the public officers. An omission by the latter of a matter required to be done by them, although it may unfortunately mislead the public, will not invalidate a transfer of (he property (/). [ 68 ] 28. f. In the case of the ship Fislibourne just quoted(fc), Ward had, at the time of the ship's sailing for the Baltic, insured one-'hird part for 2,000/. with a club of underwriters at South Shields, by a pol- icy in which the ship was valued at 6,OOQ/. Upon receiving intelligence of the ship's detention in Russia, be abandoned the third to the underwriters, who paid him as for a total loss, and he then executed the bill of sale to Heath, which contained a recital of the facts, and was expressed to be made to him in trust for all the underwriters on the ship, by the policy before men- tioned, without naming any of them ; it was contended ou the part of Hnbbard, the subsequent purchaser, that this bill of sale, being made in trust for persons not named, was void in law, as tending to defeat the pro- visions and policy of the register-arts, directed to the ascertainment of the true owners and to the exclusion of foreigners. But the Court was of opinion, upon a full consideration of the case, that, supposing the bill of sale to be void, it was at imst void only as to (he objects of the trust, and so that the execution of the trust could not be enforced by law ; but that there was no such illegality affecting the trustee himself, as would prevent the property from vesting in him in the first in- stance. (i) Ratchfordv. Meadniot, 3 Esp. 4 East. 110. N. F. Ca. 69. Heutti v. Uubburd, (k) Ante, page 63. PROPERTY IN BRITISH SHIPS. 9 1 28. /. It is obserxable, that in this case, the trust for the benefit of the unnamed underwriters was to arise, if it could exist at all, out of the acts of the par- ties, and from a conveyance adopted by them [ 69 ] for the security of their interest. There tare various cases of trusts implied by law, which : m ay ad- mit of a consideration very different from that, which the Court seemed disposed to give to the case of these underwriters. I am not aware of any determination upon such an implied trust. There is indeed one re- ported decision (/), of a question between the separate creditors of a bankrupt, the sole registered owner of certain ships, and the joint creditors of the same bank- rupt, and iiis deceased partner in trade, as to the equit- able propei ty. The ships had been bought by the bank- rupt with the partnership money, but without the knowl- edge of his partner, and afterwards made a part of their joii't property, though continued in his single name, in order to evade the provisions of a particular Act of Par- liament affecting his partner. The Lord Chancellor de- cided upon the particular circumstances of the case, that the ships were to be considered as the sole property of the bankrupt, saying at the same time, " I desire it "to be distinctly understood, that I give no opinion "whatever upon the effect of those two Acts of Parlia- " men! (namely the Register Acts) in cases of trusts *' implied by law, and not arising out of an act, in which " the contracting parties join. It is unnecessary to say "any thing upon that farther, than that, in a great va- " riety of cases, the interests of mankind would [70] "require the Court to consider long r before they " should say those statutes would prevent trusts (0 Curtis v. Perry, 6 Ves. Jun. 739. 92 PART I. CHAP. II. " implied or arising by operation of law." And it has been since solemnly decided, that these statutes, which plainly apply Jo, and are intended to regulate the acts of the parties, dNPiiot affect a transfer made by the commis- sioners toJ^JR assignees of a bankrupt (m).(l) The njfasity of a written contract, con!aining a re- cital of the certificate of registry, to give effect to an agreement for the sale of property in a ship, has also been acknowledged in the Court of Admiralty, in a euR instituted by the majority of part-owners against the master, who was also a part-owner, for possession of the ship. One of the grounds upon which the master re- sisted the application, was an agreement alleged to have been made with an agent of some of the part- owners for the purchase of their shares, which would give a majority of interests to him ; as to which the learned judge declared, that he thought the Act of Par- liament made it impossible for the Court to recognize such a transaction (n). 29. A compliance with these legislative regulations, is of the utmost importance to every person intending either to part with, or to acquire, property in a British ship ; because the register and the certificate thereof are, in many cases, conclusive evidence of title to the (m 1 ) Bloxham and others v. Hub- (?rt The NEW DRAPER, Walker. hard. 5 East. 407. 4 Rob. A. R. 287. (1) Q,uere, whether the registry acts apply to the case of an abandonment on a policy of insurance ? There does not ap- pear to have been a bill of sale, &c. in Leatham v. Terry (3 Bos. & Pul. 479.) until the underwriters actually sold the ship. See the opinion of Kent J. in United Insurance Company v. Scott, &c. 1 John. Rep. 106. PROPERTY IN BRITISH SHIPS. 93 property. This has been decided in one case, where a beneficial interest was claimed, and in an- [71 ] other, where a charge was imposed. Thus, in an action on a policy of insurance on freight, where the interest in a ship and its earnings was alleg- ed to be in four persons, who were partners in Irade, two only of whom vere named as owners in the regis- ter, it was decided, that the action was not maintainable, the property being in law vested in those two only, al- though it was proved as a fact, that the ship was paid for by all the four partners (o). (I) (o) Camden v. Anderson, 5 Te?. Rep. K. B. 709. (1) So in a case of possession, the Court of Admiralty decid- ed the title to the person,who was the legal owner in possession of the bill of sale, in opposition to an asserted equitable interest in others. The circumstances of the case were as follows : A ship was purchased by one Charnock, under a sale of the mar- shal of the Court, and it being in possession of one Tubbs, his action was brought to recover possession. Charnock had pos- session f the bill of sale, and alleged that he had never trans- ferred the possession of her to any person. Tubbs claimed the ship,deriving a title from one Kirkpatrick,for whom he alleged Charnock purchased the ship as agent. It appeared in evidence that the purchase had been really made for Kirkpatrick, and that a delivery of the ship had been made by Charnock, to a person sent by Kirkpatrick, but that Charnock always retained the legal title ; and nothing appeared to shew conclusively, that he meant at all events,to consider the property asKirkpatrick-s: but the delivery was only for the purpose of executing a par- ticular contract, which however never was executed. Sir W. Scott said, " This question arises on the arrest of a ship, which *' had been sold under the authority of this court to Mr. Char- 94 PARTI. CHAP IL And again, where an action (j>) was brought by a shipwright, for repairs made by the order of one Whar- f07, (o a ship wbirh had formerly belonged t , and been properly registered in the names of Wharlon and of the defendant, but of which the defendant, before the repairs were ordered, had executed an absolute bill of sale of his share to It'harton, in which the certificate was not truly recited, and which, on that account, was held to be void; and of which share IVharton, had aUo execut- ed a mortgage to the defendant, by a deed alike inac- curate and void ; and Wharton^ remaining in possession of the whole, as apparent sole-owner, had ordered the repairs in question, and after they were made, sold the ship by valid instruments to the defendant and others; the Court, wiihout entering into the question, whether a mortgagee, not in possession, was [ 72 ] chargeable with the expence of repairs, held, that the defendant, who remained a part-owner of the ship at the lime of the repairs, notwithstanding his a!- teinpt to transfer his interest in it to \Vhar Ion by the void bill of sale, was answerable for the repairs ordered by the other part-owner Dale. (p) WetterdeUv. Dale, 7 Ter. Rep. K. B. 306. The defendant had not pleaded ;n abatement. u nock- He is in possession of the bill of sale, and this court " is called upon to maintain a title acquired under its own pro- a ceedings. Whether Charnock purchased as a trustee for a- "nother, or under what private understanding, it will be un- " necessary to inquire. The legal interest, which is establish- " ed before the court on his part, excludes all considerations " of other equitable titles, which if they exist, must be left to u be enforced in other courts." The Sisters. 5 Rob. Adm. " Rep. 138. [155] S. C. 4 Rob. Adm. Rep. 275. PROPERTY IN BRITISH SHIPS. 95 In a subsequent case(qr), it appeared, that the owners of a schooner having, by a regular bill of sale, conveyed it to a purchaser for a valuable consideration, and made the proper indorsement on the certificate of registry, de- livered Ihe vessel and the bill of sale to the purchaser, but the purchaser did not deliver a copy of the indorse- ment at the Custom House until near a month after- wards, and their names remained on the registry there during that lime ; this, however, did not appear to be with their concurrence. During that time the master, by the order of the purchaser, took the vessel to a ship- builder to be repaired for an outward voyage, who re- paired it accordingly; and afterwards brought an action against the former owners for the price of the repairs. And on his behalf it was contended, that they were an- swerable, because they were the legal owners at the time of the repairs ; but it was held that they were not an- swerable, as the order was given by a mere stranger, and not for their benefit, but his own. 30. And, notwithstanding the documentary evidence of title furnished by these statutes, possession of a ship and acts of ownership are in this, as in other [73] cases, presumptive evidence of title. Thus, in an action(r) on a policy of insurance effected upon the ship Chesterfield, while absent on a foreign voyage, wherein the interest in the ship was alleged to be in Robertson and Walker, and in which it became a ques- tion, whether that allegation was sustained upon the evidence given in the cause, Lord Ellenborough, the Chief Justice of the King's Bench, in delivering the opinion of the Court on this point, expressed himself as (y) Young & another v. Brander 4 East. 130. And see to the same y another, 8 East. 1G. effect, Thomas & others, v. Foyle, (r) Robertson & anotherv.French, 5 Esp. N. P. Ca. 88. 96 PART I. CHAP. IL follows : " As to tbe first point made in this case, on " (he part of the defendant, viz. (bat the ownership al- " leged was not sufficiently proved : it was proved by " the captain (Brooks ) in (he ordinary way, that (he " owners by whom, as such, he was appoiuled and em- " ployed, were (he persons in whom (he ownership is " by tbe declaration averred to be. And though it " afterwards appeared by his answers, on cross-exam- " ination, that the ownership was derived (o (hose per- " sons under a bill of sale, executed by himself, as at- " torney to one Lawrence Williams, the former owner, u it did not on that account become necessary for the " plaintiffs to produce that bill of sale, or the ship's reg- " is(er, or to give any further proof of such their prop- " erty ; the mere fact of their possession as owners " being sufficient primd facie evidence of ownership, " wi(hout the aid of any documentary proof of [74] "title deeds on the subject, until such fur- " ther evidence should be rendered necessary in *' support of (he primd facie case of ownership which " they made in consequence of the adduction of some " contrary proof on the other side. No such contrary <{ proof was, however, in this case, given on (he part of " the defendant. For tbe prior reghter in the name of " Lawrence Williams, as owner in 1799, and a subse- " quent register to the same person upon a sale at the u Cape, in 1802, under a decree of the court of Vice- '* Admiralty, and which were given in evidence by the " defendant, were perfectly consislent with a title in oth- " er persons in the meantime, agreeable !o (he averment " in the declaration." (1) (1) But the production of the register from the Custom House, is conclusive evidence as to ownership at the time ; PROPERTY IN BRITISH SFflPS. *7 31. Where the Court of Admiralty entertains a suit for the possession of a ship, that Court will, if necessa- ry, issue process to compel the person, who may be in possession of the register, to bring it into Court. In a suit lately instituted on a bottomry bond, such process was issued against one, who detained the register under a sale alleged to have been made to him by the orig- inal owner, but which seems to have been considered as a fraudulent sale, made for the purpose of defeating the bond. He returned to the process, that the register had been deposited in the hands of another ; a similar pro- cess was then issued lo the person named in this return, upon which the register was delivered up (s). 32. In the cases hitherto quoted, it has not ap- [T5] peared that the failure of compliance with the legislative provisions was attributable to the misconduct of the vendor ; and in the case (J) in which a court of equi- ty was held incompetent to give relief against the rigour of the law, the defect was in the bill of sale itself, which was therefore not less void in a court of equity, than in a court of law. If after the execution of a regular bill of sale by the vendor of a ship at sea, and the delivery of a copy thereof to the proper officer, as required by the Act, the vendor should wrongfully refuse to make the necessary indorsement within ten days after the ship's (*) The BARBARA, Chegtoin, 4 (f) Hibbert v. Solleston, 1 Bro Rob. A. R l. Ch. Oa. 571. ante, p. 58. and it being proved in an action on a policy of insurance, that the ship, at the time of the insurance, was registered at the custom house, in the name of another person as owner. Le Blanc J., at Nisi Prius sittings, held that the title was in- controvertible, and nonsuited the plaintiff. Marsh v. liob- inson. 4 Esp. N. P. Cas. 98. 98 PART I. CHAP. II. return to her port, a very important question, for the determination of a court of equity, would arise. It is obvious that there would, in this case, be an instrument valid in its original formation, and at least a tacit en- gagement by the vendor, to do what should be after- wards necessary to perfect the transfer ; and the ques- tion seems to be, whether, notwithstanding the statute enacts that the bill of sale shall be void if the indorse, ment be not made within the time prescribed, a court of equity can act upon it so far as to compel the vendor, or those who may represent him, to execute a new con- veyance, to be followed up by all the requisite proceed- ings, so as to give a new title from that time ? Tim question has indeed been brought before a court [76] of equity (i>), where its difficulty and importance were acknowledged. The case in which it arose was at length settled by a compromise among the parties, and no final decision took place ; but, it appears to have been the opinion of Lord Chancellor Eldon, from which Sir William Grant, the Master of the Rolls, did not dis- sent, that the Court might aid the vendee, by making a decree for a new conveyance. Messrs. Beatsons, being owners of certain shares of the ship Atlas of London, which was absent on an East India voyage, in the month of July 1803, executed to Mr. Mestaer a regular bill of sale of their interest in the ship, and ils freight for the voyage, of which a copy was duly delivered at the Custom House. The con- sideration expressed in the deed was 1 1,000/., therein stated to have been paid by him to them ; but it seems, (t>) Mestaer v. Oillespie &? others, ings given in the text is taken part- 11 Ves. Jun. 621. The report of ly from Mr. Vesey's Keport, and this case well deserves tlie atten- partly from the notes of one of th tion of professional readers. The counsel engaged, in some of the account of the facts and proceed- proceedings. PROPERTY IN BRITISH SHIPS. 99 in truth, to have been the furnishing them with his ac- ceptances to the amount of r,000/., and 4,000/. pre- viously due to him on a prior account, for which they had accepted bills ; and the present bill of sale was a substitution for a prior security, that had not been car- ried into effect. The ship returned to her port on the 17th of December ; at that time, several bills of each party were over-due and dishonoured, and an action had been brought against both parties upon one of them. Mr. William Beatson, who managed the [77] business, insisted upon being allowed to receive the first instalment of the freight to discharge some of the bills, and for other purposes : this created a delay ; but on the 22d of (he month the parties, who were all aware of the necessity of making the indorsement with- in ten days, came to an agreement ; and, on the 23d, they both applied to one Musgrave, who was the master, and also a part-owner, to bring the certificate to the Custom House the next day (u), that the proper indorse- ment might be made upon it : this Mmgrave omitted, but the reason for his omission did not appear. The 25th and three following days were holidays at the Cus torn house : on the 29th, the indorsement was made. The Beatsons soon afferwards became bankrupts, and their assignees commenced an action at law against Mestaer, for the recovery of the shares conveyed to hitn, in which they succeeded (x). Upon this, Mestaer, filed a bill in the Court of Chancery, praying that the assignees might be restrained from taking out execution on their judg- ment obtained in the action at law ; that an account () I do not know why this was and to have delivered a copy of it required, ll would have been suf- at the Custom House, without tak- ficient to have made an indorse- ing the certificate to the office, ment on the certificate in his hands, (x) Ante t p. 60. 100 ?ART f. CHAP- H. might be taken of the money due to him ; and the Beatsons* shares in the ship sold, and all necessary par- ties join in the sale ; and that his debt might be paid out of the produce of such sale and the freight, and the East India Company be restrained from paying [78] the freight without the order of the court. The case was twice argued upon a motion for the injunction, and for payment of the freight into Court, first before the Lord Chancellor alone, and afterwards before bis Lordship, assisted by the Master of the Rolls ; and an order was made to stay the execution a! law, to bring the freight into Court, and to go to (rial upon ihe following question ; viz. "Whether Meslaer had been '* wilfully prevented by William and John Bea/son, and " Musgrave (the master), or any or either of them, from "procuring an indorsement on the certificate of regis- " try ?" It should be observed, that both the learned Judges considered such an order to be proper as an in- termediate proceeding, to secure the interests of Mestaer, and to ascertain the nature of the transaction; reserv- ing the ultimate decision of the question until the fact should be ascertained by the verdict of a jury, and the cause finally heard according to the practice of the Court. The question thus directed was fried before the Chief Justice of the Court of King's Bunch and a special jury (y). Williim Beatson was the only person examined at the trial, and the facts before stated form the substance of his testimony. The learned Chief Justice expressed his opinion to be, that if Wm. Beatson had in fact at all prevented Mestaer from obtaining the indorsement, auch prevention was wrongful, because it (y) Mestaer v. GiBetpie & otheri, Guildhall Sit after Mich. Ter. 180*. PROPERTY IN BRITISH SHIPS. 101 appeared that be had annexed to his signing the indorsement, a condition not found in the bill of [ 79 ] sale. The consideration mentioned in that in- strument was money paid ; if the bills accepted by Mes- taer were not paid, the Beatsons should have resorted to their action upon them against him. The acceptance of bills appeared to have been the original contract be- tween the parties. And he added, that Musgrave also appeared to have prevented Mestaer from obtaining the indorsement, for it was his duty to have attended with the certificate on the 24lh, and no reason appeared for his omission (s). The jury declared by their verdict, that William Bcatson and Musgrave had wilfully and wrongfully prevented Mestaer from obtaining the in- dorsement. Afer this verdict, the cause was again argued in the Court of Chancery, but ended in a com- promise, as I have already mentioned. If should be noticed, that the bankruptcy of Messrs. Beatsons was not thought of importance, but their assignees were con- sidered to be in the game situation as they would have been if it had nut happened. 33. Another question in the before-mentioned case, arose upon the validity of the assignment of the freight, which, as already observed, was comprised in the bill of sale of the ship. It was contended by the [80] assignees of Messrs. Beatsons, that the assign- ment of the freight was within the Act of Parlia- ment, for otherwise its principal object might be defeat- ed, by giving foreigners a beneficial interest in British ships; and further, that as both ship and freight were (z) This point was not contest- indorsement on the instrument on ed. Quero, if Jtfuigrave was bound board the ship in his hands : but to attend at the Custom House ? seem to have thought it necessary- See the note, ante page 77. The that it should be taken to the Cus parties did not desire to make the torn House. 102 PART I. CHAP. II. assigned by the same deed, the deed was by the terms of the statute become equally void as to both. The Lord Chancellor, however, seems to have been clearly of opin- ion, that an assignment of freight was not within tire provisions of these statutes, and that, if the assignment in this case had been made by a separate instrument, it would certainly have been good ; and the inclination of his opinion was, that the bill of sale, though void as to the ship, of which it purported to make a legal transfer, might be a valid agreement in a court of equity with respect to the freight. This point, however, did not re- ceive a final decision, for the reason before given. 34. The opinion of the Lord Chancellor in the case last quoted, upon the validity of the assignment of the freight, notwithstanding the bill of sale was become void as to the ship, supposing such an assignment not to be wilhin the provisions of the Register Acts, appears to have been confirmed by a decision of the Court of King's Bench (a). A bill of sale of several registered ships was made by way of mortgage, for securing the payment of a sum of money lent to the owner, who, by the same deed, covenanted to repay the money on a particular day. The bill of sale did not [ol ] contain a recital of any of Ihe certificates of reg- istry. The money not being repaid at the day, the lend- er brought an action of covenant upon the deed. It was objected, that by force of the Ad of Parliament (6), the deed was wholly void to all purposes, and, conse- quently, that an action of covenant grounded upon it could not be sustained, whatever other remedy the lend- er might have to recover his money : but the Court thought the object of the Legislature would be suffi,cient- (o) ferrison v. Coif, 8 East. 231. (A) 26 Geo. 3. c. 60. s. 17. PART-OWNERS. 103 ly attained, and the words of the statute satisfied, by considering the statute to make void so much only of the instrument, as related to the conveyance of the prop- erty in the ships, without also avoiding a distinct and collateral covenant contained in it ; and therefore deter* mined, that the action might be maintained. This de- termination appears also to support the opinion of the Lord Chancellor, as to the power of a court of equity to decree a sale or new conveyance, in the case then be- fore him. CHAPTER THE THIRD. OF PART-OWNERS. 1. J.HE several part-owners of a ship are tenants in common with each other of their respective sharea : each has a distinct, although undivided, interest in the whole ; and upon the death of any one, his share goes to his own personal representatives, and does not accrue to the others by survivorship. It is proposed to con- aider the nature of their interest, first, wifh relation to each other; and, secondly, with relation te strangers. 2. FIRST. A personal chattel, vested in several dis- tinct proprietors, cannot possibly be enjoyed advanta- geously by all without a common consent and agreement among them : to regulate their enjoyment in case of disagreement is one of the hardest tasks of legislation ; and it is not without wisdom, that the law of England io general declines to intefere in their disputes, leaving PART I. CHAP. HI. it to themselves, either ') More -j. Ro-wbotham, 6 Mod. Raym. 223. East. T. 9 W. 3. On a 162. Ea>t. T.S.Ann. and Degrave motion for a prohibition to the \d- v. Hedges, 2 Ld. Raym. 1285. East, miralty on a suit there upon the T. 6. Ann, upon the same motion, stipulation. The Courtordered the Plaintiffto (7) Blucket v. Jlntley, 1 Ld. declare in prohibition in both these Rayinn. 235. Trin. T. 9 W. 3. up- cases, on the like motion as the last case. 110 PART I. CHAP. HI. Bench refused to do so (s). In the last case (/), which I find in the books on (bis subject, a part-owner, pos- sessed of a small share, instituted a suit in the Court of Admiralty against the major part-owner, who was also master, and who insisted upon making a voyage [90] with the ship, praying that the ship might be sold, or the party have such other remedy as might be thought proper by the Admiralty ; and the other applied to the Court of King's Bench to prohibit the Admiralty from proceeding in the suit; but Chief Justice Lee said, " I have no doubt but the Admiralty " has a power in this case to compel a security, and this "jurisdiction has been allowed to that Court for the " public good. Indeed, the Admiralty has no jurisdic- " tion to compel a sale, and if they should do that, you " might have a prohibition after sentence : or we may " grant a prohibition against selling, or compelling the " party to sell, or to buy the shares of others." This was agreed to by the whole Court, and the case ended by prohibiting the Court of Admiralty to direct a sale, but leaving the Court at liberty to compel security. By this determination the law appears to have been finally settled ; but the progress of it may not have been unin- teresting to the learned reader. 6. It does not appear that either of the cases, which I have just referred to, arose upon an equal division of voices or interests in the ship ; but a learned Civilian (), who wrote towards the end of the seventeenth century, having spoken of this power of the majority, arids, I hat. () Dimmock v. Chandler, 1 } Stra. proceeding to direct a sale. 890. Fitz. 197. (w) Godolphin, in the introduc- (t)Oustonv. Hebden,\ Wils. 101. tion to his view of the Admiralty It does not appear by the rep >rt, jurisdiction, that the Court of Admiralty was PART-OWNERS. the same thing may also be effected by the one part only, in case of equality in partnership; this [91 J doctrine is adopted by Molloy (a:), and is followed in the practice of the Court of Admiralty (1). 7. We have seen, by the case just cited, that the Court of Admiralty cannot in any case compel any of the part- owners to sell his interest. The French Ordinance (y) prohibits one parl-owner of a ship from forcing his com- panion to a sale (which by the French laws one tenant in common might in general do) except in case of equal- ity of opinions upon the undertaking of a voyage. But a part-owner may by our law dispose of his interest to another person at any time ; a rule better adapted to the present state of commerce than that (s), which formerly prevailed among some of the nations of the continent, and which did not permit the sale of a ship until after a possession of three or more years ; or at least not till after the performance of one voyage at the charge and risk of the part-owners (a). The old rule (x) Book 2- ch. 1 sect. 2. And (z) Valin on the French Ordi- see to the same effect Cleirac's note nance, torn. prem. 683. Loccenius on the 59th article oflheHanseatic de jure Marit. lib. 3 cap. 5. sect, ordinance. 3. Consolato, Cap. 54 (y) Liv.2.Tit. 8. DCS proprietai- (a) Molloy, book 2. ch.l. sect. 3. re*, ait. 6. (1) And in the District Court of Pennsylvania, Judge Peters held that a majority in value of the owners might apply to the admiralty, to order the ship delivered to them, upon a stipula- tion being made, when the minority dissented from the voyage. And he said that it had not been judicially decided in the U. S., whether in such a case the minority might not be compelled to sell, and he seemed to consider it questionable, whether such a power was not vested in the admiralty. Willings, &c. v. Blight. 2 Peters. Adm. Rep. 288. and see also 2 Brown's Civ. and Adm. Law. 131. 112 PART I. CHAP. III. appears to have been framed with a view to the interest of the master, who in former limes was a principal owner, and was the person who, with the pecuniary as- sistance of the other owners, generally caused the [92] ship to be built in the expectation of being em* ployed in the command; an expectation that might be defeated, if the others could sell their shares to strangers, who acquiring a majority of interest might appoint a friend of their own (&). 8. With regard to the repairs of a ship and other necessaries for the employment of it, one part-owner may in general, by ordering these things on credit, ren- der his companions liable to be sued for the price of them (c). Yet if the person who gives the credit on such an occasion, does not at (he time know that there are other part-owners, he may sue him alone, from whom he receives the orders (d). (1) But one part-owner cannot, by ordering an insurance of the ship without (6) Consolato, Cap. 54. () Dig. 14. 1. 1. 25. and 14. 1. (7) Vinnius in Peck'mm, p. 155. 2.3.6; 4- tradesman brought his action for cordage, against the owners of a ship, and it was proved that he had taken a bill for the amount of the managing owner, which was dishonored, and renewed, and again dishonored. Lord Ellenborough held that if the plaintiff had, by so dealing, adopted the managing own- er, he discharged the others, and that it was not necessary that there should have been a receipt. If he adjusted the ac- counts with the managing owner on that footing, the others were entitled to the benefit of it ; and the jury found for the defendants. Reed v. White, &c. 5 Esp. N. P. C, 122. (2) Incases of abandonment, the insurers become the owners of the ship, and as such, are liable to the expences of repairs, nnd other necessary equipments for the ship,made after the time of the loss to which the abandonment refers. But in this case, as the ownership is thrown upon them by the law, and as the association is not voluntary, they have been held not to be part- ners ; but that each is severally liable for his proportion of the expences in the ratio, the sum by him insured, bears to the whole sum insured on the ship. And the case was likened to the case of Hoare v. Dawes. Dougl.37 1 .where a broker was em- ployed by a number of persons to purchase a lot of tea, of which they were to have a separate share, and he made the purchase, PART-OWNERS. 121 and it was held that they were answerable severally, and not jointly. So it was decided inCoope, &tc. v. Eyre, &c. 1. H. Bl. 37, on a purchase of oil. And Kent C. J. said the true principle was established in Speering v. De Grave. 2 Vern. 648, where it was decreed that for the necessary appropria- tions by the master for the wants of the ship, the owners should pay in proportion to their respective shares and inter- ests in the ship. United Insurance Company v. Scott. I John. Rep. 106. Part-owners of privateers are, in like manner, as part-own- ers of merchant ships, liable for any torts committed by the master or crew of such privateers. And in the court of admi- ralty, even where there has been a release to a part-owner from his responsibility, upon his paying a certain sum for damages, occasioned by the capture of a ship, and not proceed- ing to adjudication, the court will compel him to appear to a suit in common with the others, for in such a case the party injured has not only a right to call on all the owners for re- paration, but also for all information in their possession. Kara- Ban. 5 Rob. Adm. Rep. 280. And in Del Col v. Arnold, 3 Ball. Rep. 333, the Supreme Court of the U. S. held that, the own- ers of privateers are responsible for the conduct of their a- gents, officers and crew, to all the world, and that the meas- ure of such responsibility, is the full value of the property injured or destroyed. See also Talbot, &c. v. Owners and Commanders of three Brigs. 1 Dall. Rep. 95. But in cases of capture by a privateer of neutral property, where restitution is decreed, without damages, the owners are not liable under the decree, unless the property or its proceeds come to their hands. Jennings v. Carson's executors. 4 Cranch. Rep. 2. Pen-* hallow v. Doane's administrators. 3 Dall. Rep. 54. 20 PAUT THE SECOND. OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANT SHI IS. CHAPTER THE FIRST. OF THE QUALIFICATIONS OF THE MASTER AND MARINERS. ! |_ HE master of a ship is the person entrusted with the care and management of if. His power and author- ity are so great, and the tru&t reposed in him is of so important a nature, that the greatest care and circum- spection ought to be used by the owners in the choice and appointment of him. It appears by the language of the ancient sea-laws and ordinances, that the master was formerly in almost every instance a part owner of the ship, and consequently interested in a twofold char- acter in the faithful discharge of his duty. At present, it frequently happens that be has no property in the ship. The law of some countries requires a previous examin- ation of the person to be appointed to this important office, in order to ascertain his nautical experience and skill : in other countries, he is liable to be puni-shed as a criminal, if, having undertaken the charge, he is found incompele;,t to the performance of it (a). [ 102] In this country the owners are, except in one (a^ See Cleriac on the first arti- taine and Vulin thereon, ffameatic cle of the laws of (j'.eron; French Ordinance oi 1614. Tit. 3. Art. 1. Ordinance, liv. 2. tit. 1. Jju Capi- OP MASTERS AND MARINERS. 123 case, left to their own discretion as to the skill and bonesly of the master; and although he is bound to make good any damage that may happen to the ship or cargo, by his negligence or unskilfulness, if he is of ability to do so, yet he cannot be punished as a criminal for mere incompetence. 2. The excepted case, to which I have just alluded, arises out of one of the humane provisions made by the British Legislature for the regulation of the African slave trade, by which it is made unlawful " For any " person to become a master, or to take or have the " command or charge of any British ship or vessel :( (which shall clear out from any port of this kingdom " to take on board or to convey slaves from the coast " of Africa, to any part beyond sea) at the time he * shall clear out from any port of Great Britain, for " purchasing and conveying slaves from the coast of c< Africa, unless such master, or person taking or hav- "ing the charge or command of any such ship or vessel "shall have made oath, and delivered in to the collec- *' tor or other chief officer of the customs, at the port *' where such ship or vessel shall clear out, a certificate " attested by the respective owner or owners of the ships "or vessels, in which he has formerly served, that he " has already served in such capacity, during one " voyage, or shall have served as chief mate or " surgeon, during the whole of two voyages, or [ 103 ] ** either as chief or other mate, during three " voyages, in purchasing and carrying slaves from the "coast of Africa, under pain that such master, or other " person taking or having the charge or command of ** any such ship or vessel, and also the owner or owners, " who shall hire or employ such person, shall for every 124 PART II CHAP. I. QUALIFICATIONS such oflfence forfeit and pay the sum of five hundred " pounds (6)." 0. The other persons employed in the ordinary nav- igation of a trading ship, fall under the general denom- ination of mariners or seamen. [ 104] 4. For the employment of a British ship it is necessary that the mas.'e-, and a certain pro- portion of the mariners, should in many cases be British, lubjecls, from a very obvious principle of public policy, enforced by various provisions of the Legislature. So long ago as the rei^n of Queen FAisabelh, it was made unlawful to lade or carry any fish, \icliial, or other things in any bottom, whereof a stranger born was ship- master, from one port of e, c. 39. 13 Geo.2. r successors, shall be navi- gated but bv a master and three-fonrths of the mariners at least British subjects, except as thereinafter is pro- vided (i). And that from the same period, no [ 106] goods shall'ba carried from any one port, mem- ber, creek, or place of Great Britain, or of the islands of Guernsey, Jersey, Alderney, Sark, or Man, to any other port, member, creek, or place of the same or of any of them, in any such vessel, nor shall any such vessel be per mi ted to sail in ballast from one of the said ports or creeks to another, nor shall any such ves- sel be permitted to sail from the ports or coasts of this kingdom or of the said islands, to be employed in fish- ing on the said coasts, unless such vessel be wholly and solely manned with and navigated by a master and mariners all British subjects ; wiUi a proviso however, authorizing four or more of the commissioners of (he customs id Knglnnd, and three or more in Scotland, to licence the employment of foreign mariners not exceed- ing one-fourth in such vessel, in fishing on the coast of Great Britain, or of Ihe said islands, for' the purpose of instructing the British mariners in such vessel, in the art, of fishing, or taking or curing fish (fc). And where- ever it is required by the same or any other Act, that Ihe master and the whole, or any proportion of the mariners, shall be British subjects, they must be so (A) 34 Geo. 3. c. 68. s. 1 & 2. (k) 34 Geo. 3, c. 68. 4. (i) 34 Geo. 3. c. 68. . 3. OF MASTERS AND MARINERS. 127 during the whole voyage, unless io case of sickness, death, desertion, or of the whole or part of the crew being taken prisoners in the voyage, and, in such case, the master or person having the charge or command of the vessel, shall specify the same in his re- port (/). [107] It is provided, however, that this Act shall not alter or affect any regulalions for manning or navigating of ships employed in the fisheries, for which any special provision has been made by any statute in force (m). 6. And, in order to prevent doubts respecting the various terms made use of in the several laws of navi- gation, as to the persons who are to be deemed quali- fied to be masters of British ships, or to be British sail- ors, seamen, or mariners, it is by the same statute de- clared and enacted, that no person shal! be deemed or taken to be qualified to be the master of a British ship, or to be a British sailor, seaman, or mariner, "except " the natural-born subjects of his Majesty, his heirs and u successors, or persons naturalized by or by virtue of *' any Act of Parliament, or made denizens by letters " of denization, or except persons, who have become " his Majesty's subjects by virtue of conquest or ces- " sion of some newly-acquired country, and who shall " have taken the oath of allegiance to his Majesty, or " the oath of fidelity required by the treaty or capitu- " lation, by which such newly-acquired country caiue (( into his Majesty's possession, except as therein pro vided (n)." 7. The same statute (o) confers a qualification to be thus employed upon foreign seamen, after three [108] years service in time of war oh board any of (0 34 Gto. 3. c. 68. s. 5. (n) 34 Geo. 3. e. 68. . 6. (m) 34 Geo. 3. c. 68. s. 5. (o) 24 Gey. c. 68. s. 7, 128 PART H. CHAP.'I. QUALIFICATIONS his Majesty's ships, who shall obtain certificates of their faithful service and good behaviour from the commanders, or in case of their death, from the next in rank, and take the oath of allegiance. But (p) it also excludes from this capacity every person, how- ever otherwise qualified, who, after he became quali- fied, has taken, or shall take, the oath of allegiance to any foreign sovereign or state, for any purpose, except under the terms of some capitulation upon a conquest by an enemy, and for the purpose of such capitulation only. But no ship or vessel shall be forfeited by reason of the employment of persons so disqualified, if the owners can shew that such disqualification of the masier was unknown to them or their agents, and that such disqualification of a mariner was unknown both to them or their agents, and to the master. The statute, how- ever, allows the employment as sailors, in the seas of America and the West Indies, of negroes belonging to persons qualified in the manner before-mentioned, if the conditions required by the statute 34 Geo. 3. c. 42. have been complied with, and in the seas (o the east- ward of ihe Cape of Good Hope, of Lascars and other natives of the countries to the eastward of that Cape. 8. And if any goods shall be imported or brought, ex- ported, or carried coastwise, contrary to any of the provisions of this Act, the goods, vessel, [109] guns, and furniture, shall be forfeited : and if any vessel shall sail in ballast, or sail to be employed in fishing on the coast in the manner before-mentioned, or being required to be manned and navigated wi'h a master and a certain proportion of British mariners in the manner before directed, shall not be manned and (/) 34 Geo. 3. 68. . 8. OF MASTERS AND MARINERS. 129 navigated according to the provisions of this Act, the vessel, with her guns and furniture, and all the goods on board, shall be forfeited (q~). And all goods and vessels forfeited by this act may be seized by the com- mander of any of his Majesty's ships of war, or any commissioned, warrant, or petty officer, specially ap- pointed by him, or any officer of the customs : the for- feiture to be recovered and applied in the same mariner as any forfeiture incurred by any law respecting the revenue of the customs (r). And " in case any British " ship or vessel shall be found at sea, having on board "a greater number of foreign mariners than is allowed "by this Act, or any law now in force, or hereafter to " be made, and the master of such ship or vessel shall "produce a certificate of the actual necessity of engag- " ing such foreign mariners in some foreign port, [110] "by occasion of the sickness, death, or deserlion " of the like number of British mariners, or of "the same having been taken prisoners during his vov- " age, and that British mariners could not be engaged " in such foreign port to supply their room, and that " for the safe navigation of such ship or vessel it became * necessary to engage and employ such foreign mariners, Cy) 34 Geo. 3. c 68. *. 10. maintain an action of trespass a- (r) 34Geo. 3.c. 68. s. 11. It has gainst the party making 1 the seiz- been decided on the construction ure, although the latter do not of the Navigation Act, 12 Car. 2. proceed to the condemnation of c. 18. s. 1. that by the seizure of a the ship. WUkins v. Despard, S forfeited ship the property of the Ter. Rep. in K. B. 112.* owner is divested, and he cannot * But until seizure, no prop- all the world. Per Winchester J. erty vests in the party entitled to in the U- S. v.The Anthony Vlan- the forfeiture ; and therefore a gin. District Court of Maryland. bonajide alienation of a ship liable 3 Cranch. Rep. 356. note. S. C. 2 to forfeiture, before such seizure, Peters. Rep. 452. vests a title, which is good against 21 ISO PART II. CHAP. I. QUALIFICATIONS, $c. " under the hand of his Majesty's consul at the foreign ' 4 port, where the said foreign mariners were so eneag- " ed, or, if there is not any guch consul (here, under "the hands of two known British merchants at such "foreign port, it shall not be lawful for any of the per- " sons authorized by this Act to make seizures of ships " or vessels navigated contrary lo the directions of this " Act, to stop or detain any such ship or vessel BO " found at sea, or to hinder her from proceeding on her '* voyage, but such persons shall and are hereby requir- ed to indorse the certificate so produced, testifying " the production thereof, and when and where met with " at sea, and that the number of foreign mariners cor- " respond with the certificate of such British consul, or " such known British merchants, for the consideration " and investigation of the commissioners of his Majes- " ty's customs \nEnglandan6Scotland respectively (s)." 9. There is in this statute a proviso reserving to his Majesty the power of issuing such proclama- tion as he was authorized to make by a statute [ 111 ] passed in the last reign (f), which enables the King at all times, when it shall be found necessary to declare war against any foreign power, to publish a proclamation to permit all merchant ships and other trading vessels and privateers to be manned with foreign mariners and seamen during such war, "so as the num- 14 ber of such foreign seamen or mariners do not exceed " three fourths of the mariners at any one time employ- " ed to navigate such merchant ship, or other trading " ship or vessel, or privaleer, and that one-fourth at "least of the mariners or seamen so employed be at all " times natives, or his Majesty's naturalized subjects of (*) 34 Geo. 3. c. 68. *. 12. (*) 13 Geo. 2. c. 3. . 1 & 4 AUTHORITY OF THE MASTER. 131 " Great-Britain, sudden death, and the hazard and cas- "ualties of war and the seas, saved and excepted." 10. Since the Union of Great-Britain and Ireland, regulations similar to those which I have just detailed, have been made by the Legislature with respect to the navigation of Irish ships by subjects of the United Kingdom (M). (1) (u) 42 Geo. 3. c. 61. tect. 1 to 15. CHAPTER THE SECOND. OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP. 1. A. TRADING 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 there- of, is lei 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 con- tract by which the master or owners of a ship destined on a particular voyage, engage separately with a num- ber of persons unconnected with each other, to convey (1) There is no statute of the U. S. prohibiting the employment of foreign seamen, or requiring any portion of the crew to be Americans. By the registry act, the master must be a citizen of the U, S., in order to pre- serve the rights vested by that act. 132 PART H. CHAP. H. MASTER'S AUTHORITY. their respective goods to the place of the ship's destina- tion. A ship employed in this manner is usually called a general ship. The nature of each of these contracts will form the subject of particular discussion hereafter (a). In the present chapter it is proposed to consider only the pow- er of the master to bind the owner of the ship by these engagements. 2. The owners rarely navigate a trading ship [ 113 ] by themselves ; the conduct and management of it are almost always entrusted to the master, whether he has, or has not, a partial property in it. In the latter case he is the con6dential servant or agent of the owners at large ; in the former, of his copartners. In either case by the law of England, and in conformity to the rules and maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the ship. They are bound to this performance by reason of their employment of the ship, and of the profit derived by them from that employment (6). One part- owner, who dissents from a particular voyage in the manner mentioned in a preceding chapter (c), is not bound, because he does not employ the ship on that voyage, nor derive any profil from it (d). The course the usual employment of the ship is evidence of author- ity given by the owners to the master, to make for them and on their behalf a contract relating to such employ- ment ; and consequently a contract so made by him is esteemed in law to have been made by them. It (e) is (a) Part 3. chap. 1 and 2. (d) By Holt, Ch.Just in Boson v. (6) See Molloy, book 2. chap. 2. Sandford Garth. 63. sect. 14. (e) Morse v. Slue or Since, 1 (c) Part 1. ch. 3. sect. 4. Vent. 190. 238. AS TO EMPLOYMENT OF SHIP. 133 true that the master also is answerable tor his own con- tract ; for in favour of commerce the law will [ 114 ] not compel the merchant to seek atter the owners and sue them, although it gives him the power to do so ; but leaves him a two-fold remedy against the one or the other. But in pursuing this remedy, care must be taken to describe the defendant according to his real character. For in an action at law (/), brought against a person as master, at the trial whereof it ap- peared upon the proof that the defendant was not mas- ter but owner, the plaintiff failed in his suit. 3. This rule of the law of England agrees with the law of other commercial nations. When the Romans began to engage in commerce (g), a new species of action under a particular name appears to [115] have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants ; and by the Pnetorian Edict the owners or (/) Rich-wood v. Footmer, coram Kenyan, Ch. J. Sit. p. Mil. T. 1790. (ff) Dig. 4.9. Nantes, caupones, stnbuhirii. ut recepta rettituant. Dig.14. \.DeExercitoria actione. Malioy in his treatise DcJur.JMarit. et naval, book 2- chap. 2. sect. 2- appears to have mistaken the cha- racter of the Exercitor navis of the civil law, and to have supposed him to be ihe master of the ship; where- as in truth he is the employer of the ship, and consequently must be the absolute, or at least the temporary owner. " JMagistrum navis accip- 'ere debemus.cui totius navis cura ' mandata est. Magistrum autem ' accipimus non solum, quern exi r- ' citor prseposui'ijsed et eum, quern ' magister. Exercitorem autem 1 eum dicimus, ad quern obven- ' tiones et reditus omnes perveni- 4 unt, sive is Dominus sit, sive a ' domino navem per aversionem " conduxit, vel ad tempus, vel in " perpetuum." Dig. 14. 1. And Jioccus, Not. 3 spetks to the same effect of the Mugister. This au- thor usually calls the owner domi- nus navis, but he often speaks of him as the person qui esrercit ua- vem. Again, in the Dig. 4. 9. 1. 2. we find the following commentary on \.\\ePr a ship into his own possession to repair it, may not be bound to part with the possession, until he is paid for the repairs, any more than a tailor, smith, or other artificer, in regard to the object of his particular trade. But a shipwright who has once parted wilh the possession of the ship, or has worked upon it without taking possession, and a tradesman who has provided ropes, sails, provisions, or other necessaries for a ship* are not by the Law of England preferred to other creditors, nor have any par- (g) It seems to be a year. French same import was also used by hia Ordin. Liv. 1. Tit. 12. desprescrip- Lordship in the case of Farmer j. tions, &c. Art. 3. Davis, 1 Ter. Rep. K. B. 109. (r) Richv. Coe,Cowp.636. Trin. (*) Westerdell v. Dale, 7 Ter. T. 17 Gco. 3. An expression of the Rep. K. B. 312. 24 154 PART II. CH. III. MASTER'S AUTHORITY. ticular claim or lien upon the ship itself for the recovery of their demands. 10. Thus where one Clement (/), who had supplied sails and other necessaries for the use of a ship in a port in England, instituted a suit in the Court of Ad- [136]miraliy against the persons, who were master and owner at the time of the supply, and also against the ship, and one Hoare, who had afterwards purchased the ship, the Court of King's Bench, on the application of Hoare, granted a prohibition to the Court of Admiralty, to stay the proceedings against him and the ship. Again (u), w here one Ballam instituted a suit in the Admiralty against a Norwegian ship, for payment of the price of a cable and anchor delivered on board the ship to the master in the River Thames, and an appli- cation was made to the Court of King's Bench to pro- hibit the Court of Admiralty from proceeding in the cause, against which and in favour of the proceedings in the Admiralty it was argued, that the want of the cable and anchor was occasioned by stress of weather at sea, and that the party would be without remedy if a prohibition should be granted, because the master was dead, and the owners were foreigners ; the Court of King's Bench thought the ship not liable to the suit ; firs!, because it did uot appear that the ship was in her (*) Hoare v. Clement, 2 Show, eitherof the books, that the suit in 338. Mil. T. 35 and 36 Car. 2. It the Admiralty was against the ship, seems that the prohibition would as well as the person, have been general, if the master () Justin v. Ballam. Mich. T. and former owner had applied for 1 Jlnne. Saik.34. 2 Lord Raym. 805. it, for the Court of Admiralty had Both reporters say that the Court no jurisdiction over the person in awarded a prohibition, but the lat- this case. See Cradock's Cose, 2 ter adds, that at the importunity B;->wnlowe 37, reported also in of the defendant's counsel the Owen 122, by the name of Leigh v. plaintiff was ordered to declare. Eurleigh,7 3:\s. 1- I have not cited No subsequent proceedings are this last case as an authority for any where mentioned, the text, because it is not said in AS TO REPAIRS AND NECESSARIES. voyage, when she became h distress for want of a cable and anchor, and at the time of the contract ; secondly, because there was no actual hypothecation ; and said, that although by the maritime law every con- tract with the master of a ship implied an hypoth- [137 ] ecation, yet it was otherwise by the Law of England, unless expressly so agreed. And (v) where a ship had been sold, and the money brought inlo the Court of Chancery in a cause there depending, and upon inquiry into the nature and extent of the demands of the several parlies in the cause upon the proceeds of the sale, it appeared, that the plaintiff, being master of the ship, had, by the desire of one of the defendants the owner, employed several tradesmen in London to do work to, and find provisions and materials for the ship, for which he (the master) had promised to pay, and of which he had been forced by suit at law to pay a part ; Sir Joseph Jeykyl, the Master of the Rolls, declared, (and decreed accordingly) that this demand was not a lien on the ship, but that a demand of the master for wages paid by him to the mariners, and for money dis- bursed by him on the ship's account in the course of a foreign voyage, was a lien on the ship (1) ; and in this case it was said by the Master of the Rolls " That if a " ship be in (he River Thames,, and money be laid out " there, either in repairing, fitting out, new rigging, or " apparel of the ship, (his is no charge upon the ship ; (v) Watkinson v. Barnardiston, 2 P. Wms. 367. 2 Eq. Ca. Ab. 512. A. D. 1726. (1) But see in note under p. 133. the case of Hussey v. Chris- tie, &c. 9 East. 426, where the master's lien on the ship for these charges is denied. 156 PART II. CH. m. -MASTER'S AUTHORITY *< but the person thus employed, or who finds these ne- " cessarjes, must resort to the owner thereof for pay- " inent ; and in such a case, in a suit in the [138] "Court of Admiralty to condemn the ship for " non-payment of the money, the Courts of Law " will grant a prohibition ; and therefore if the owner, " after mpney thus laid out, mortgages the ship, though " it be to one, who has notice that the money was so '' laid out, and not paid ; yet such mortgage is weH " entitled, without being liable for any of the money " thus laid out for the benefit of the ship as aforesaid ; " and the ship is no more liable for this money, than a " carpenter laying out money in the building of a house, tl has a lien upon the house in respect thereof; though " by the Law of Holland he has ; but this not being the " Law of England, such carpenter must resort to those " who employed him, or to the owner of the house,- for " his money. But it is true, that if at sea, where no *'. treaty or contract can be made with the owner, the " master employs any person to do work on the ship, or '.' to new rig, or repair the same, this, for necessity and " encouragement of trade, is a lien upon the ship, and " in such case the master, by the maritime law, is al- " lowed to hypothecate the ship." 11. Again were a ship was sold under the authori- ty of the Court of Chancery, and a person, who had previously repaired it in England by order of the master, acting under the authority of the ship's husband, claimed the payment of his demand out of the money produced by the sail in a suit against the surviv- [139 ] ing part-owners, and the representatives of the others, who were dead ; and it became necessary to de- termine whether the plaintiff's demand constituted a 4S TO REPAIRS AND NECESSARIES. 157 lien upon the ship, because, if it did, he was entitled to payment according to the prayer of his bill : Lord Chan- cellor Hardrvicke said, " Certainly by the maritime law " the. master has power to hypothecate both ship and " cargo for repairs, &c. during the voyage ; which ari- " ses from his authority as master, and the necessity ^ thereof during the voyage, without which both ship *' and cargo would perish ; therefore both that, and the " law of this country, admit such a power. But it is " different, where the ship is in port infra corpus com- ^ itatus, and the contract for repairs, &c. made on land " in England ; then the rule of that law must prevail. " I know no case where the repairs, &c. whether it was " by part-owners, or sole owner, master or husbands, 44 have been held a charge or lien on the body of the " ship. Watkinson v. Barnardiston, 2 Wms. 367. being " a direct authority to the contrary ; and if the ship in *' the river infra, corpus comitalus should be proceeded " against and stopped for such debt, the courts of lavv " would issue a prohibition, the contract being on land " and not arising from necessity." And his Lordship dis- missed the bill so far as it sought relief against the body of the ship, or the money arising by the sale there- of: but, expressing a doubt, as to the personal charge upon the owners in such a case, directed a trial [ 140] at law upon that question (), as I have already mentioned (w). 12. And in another case which happened very soon afterwards, where a person having repaired a ship here, and delivered it to his employer, who has become a bankrupt, had obtained possession of the money, for which the ship had been sold, and insisted before Lord (u) Buxton v. Snee, I Ves. 154. (w) Ante, page 127". .Voi>. 1748. 159 PART H. CH. III. MASTER'S AUTHORITY Chancellor Hardwicke, that he had a specific lien on the ship for the repairs, and was not obliged to prove bis demand as a debt under the commission ; (be Lord Chancellor said, that although the Law of Holland gave a person, who repaired a house, or ship, a specific lien, there was no such law in England, and that be must ac- count to the assignees of the bankrupt for the money in bis hands arising from the sale of the ship, and come in under the commission for the debt due to him for re- pairs ; and his Lordship made an order accordingly (.r). 13. And in a case (y) that came before the Court of King's Bench very soon after the determination of the particular case, in which Lord Mansfield is reported to hare delivered the doctrine before quoted ; wherein the master of a ship, of which the owner was become bank- rupt, insisted upon a right to retain the ship from the assignees of the bankrupt, as a security both for his own wages, and for tbe expence of repairs, [ 141 ] stores, and provisions ordered by himself, and for which he was liable to pay, and after a demand made of the ship by the assignees had actually paid, Lord Mansfield said, " As to the stores and repairs, it is a <( strong answer to the claim, that, when the demand " was made by the assignees, the master had not paid. tf But if there was any lien originally, it was in the carpen- " ter: the master conid not by paying him be in a bet- " ter situation than his, and he had parted with the pos- " session, so that he had given up his lien, if be ever " had one. The other creditors had none. Work done " for a ship in England is supposed to be on the person- al credit of the employer. In foreign parts the mas- " ter may hypothecate the ship." far) Ex parte Shank ft? others, 1 (#) Wilkins r>. Carmichael, Hil. T Atkins, 234. August, 1758. 19 Geo. 3 Doug. 101. AS TO REPAIRS AND NECESSARIES. 159 14. And LASTLY, in a case (s), which was brought by appeal from the Court of Session in Scotland to the British House of Lords, the Lords determined that the persons, who had repaired and furnished a ship in Scot- hind, the place of the owner's residence, had no claim upon the value of the ship itself for the payment of their demands. The owners of the ship had become bank- rupts, and several persons, who had repaired and fur- nished it at different periods, instituted a suit against the trustee of the bankrupt's estate, claiming [142] payment out of the proceeds, of the sale of the ship in exclusion of the other creditors of the bankrupt, and insisting that all of them, or at least those, whose demands arose since the last voyage made by the ship, and in order to fit her out for another voyage, had by the law of Scotland, and of other European nations, England (inly excepted, a right of hypothecation or pref- erence for the amount of their respective demands. The cause was heard and re-beard several times in Scot- landy and different decisions pronounced there ; some in favour of the claim, and others against it. The ultimate decision in Scotland was against the claim ; founded prin- cipally, as it seems upon a desire to render the law of Scotland conformable to the law of England on this sub- ject (a) ; for such a claim had been frequently allowed in the Courts of Scotland during a period of four-score years preceding this cause ; and the decision was affirm- ed by the house of Lords on the appeal. (z) Wood & others v. Hamilton, chap. 1. sect. 10. this is expressly decided in Dam Proc. 15'h June, said to have been the ground of 1789. The printed papers are the decision. Dr. Wynne's opin- drawn up with great care and ion as to the English law, was tak- learning-on both sids,and contain en in *.he course of the proceed- much valuable information ings for the information of the (a) In the case of Jameson & Scotch Judges. ithers v. Laurie, cited post, part 3. 160 PART H. CH. HI. MASTER'S AUTHORITY I have detailed these cases with the more particularity, in order to prevent any mistake from the general doc- trine delivered by Lord Mansfield in the case of Rich v* Cue, which has sometimes been cited as an au- thority up to the full extent of the terms, in which [ 143] it was expressed (1). 14. b. There is however a late determination of the Court of Admiralty, that should be mentioned in this place. An American ship was supplied in the river Thames, by certain merchants of London, with stores and ammunition for a voyage to Venice, and, having performed the voyage and returned to London, was sold under a decree of the Court in a suit instituted by the mariners for their wages. After payment of the wages, a surplus remained in the registry of the Court. The (1) It does not appear that it has ever been held in the courts of the U. S., that shipwrights and furnishers of supplies to ships, while in the ports of the U. S., have not a lien on the ships, or right to admiralty process to recover the amounts due them. The question has not to my knowledge arisen in the Supreme Court of the U. S., but in the District Court of Maryland, after a very learned discussion, Winchester J. decided that a shipwright by the maritime law has a lien on the ship for repairs done and materials found by him, while the ship is in a port of the U. S. Stevens v. The Ship Sandwich, 1 Peters. Rep. 233. note. The same opinion was given by Peters J. in Pennsylvania, in Gard- ner, &c. v. The ship New Jersey, 1 Peters. Rep. 223. See al- so 1 Roll. Abr. 533. 1. 15. Cro. Car. 296. The legislature of New York have expresly provided that shipwrights, material men, and suppliers of ships shall have a lien on the ships for the amount of their debts, where the ships are owned by any persons not resident within the state. Act. 10. August, H98. AS TO REPAIRS AND NECESSARIES] 161 master had returned to America and died ; and the owner was insolvent there. The merchants applied to the Court for payment of their demand out of this sur- plus : and in support of (heir application a distinction was taken between English and foreign ships. The learned Judge of Ihe Court, after having had the cases looked into, said he found it had continued to be the practice of the Court to allow persons of this descrip- tion to sue against proceeds remaining in the registry, notwithstanding prohibitions had been obtained on orig- inal suits instituted by them; and he referred to a par- ticular case of the ship Adventure in the year 1763: and decreed that payment should be made according to the application (6). (1) It is observable that there was not in this case any person representing the owner to object to the f 144] application. It appears by the report that the proceeds had been previously attached on the part of a creditor, and that the attachment had been re- moved before the decree, but no particulars relating to it are mentioned. In the case of the same ship, a person who had acted as agent and broker to the ship in this country, after- wards applied by petition for payment of the balance of his account ; but the petition was rejected, by reason of the general and unsettled nature of the account, which was thought more fit for the Court of Chancery, where alone cross demands could be investigated. (6) The JOHN, Jackson, 3 Rob. A. R. 288. (1) A similar decision in principle was made in Gardner, Sic. . The Ship New Jersey above cited. 25 162 PART H. CH. III. MASTER'S AUTHORITY 15. We have seen by several of (be preceding cases, that the master may in foreign parts hypothecate the ship : and I propose in the next place to consider the nature of those instruments of contract, by which a ship itaelf is expressly made security, and pledged by the master, for the repayment of a debt contracted with re- lation to it. It should be observed, that wherever the master may pledge the ship, he may pledge the freight also (c). These contracts are usually called contracts by bot- tomry, the bottom or keel of the ship being figuratively used to express the whole body thereof; some- times also but inaccurately, money lent in this [1 45] manner is said to run at respondentia ; for that word properly applies to the loan of money upon mer- chandize laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the merchan- dize at the destined port. In like manner the repay- ment of money lent on bottomry, does in general de- pend upon the prosperous conclusion of the voyage ; and as the lender sustains the hazard of the voyage, be receives upon its happy termination a greater price or premium for his money, than the rate of interest allowed by law in ordinary cases. The premium paid on these occasions, depends wholly on the conti-act of the parties, and consequently varies according to the nature of the adveuture. And as the master of the sliip may, under certain circumstances, pledge the shij by a bottomry contract, so also may the owners or part-owners in any case, to the extent of their respective interests ; and this they not unfrequently do, in order to raise money for (c) The GHATrrrDixE, Maz- See as to the extent of an hypoth- fola, 3 Rob. A. H. 240. and the ecation of the Freight, the last sec- JACOB, acr, 4 Rob. A- R. 245. tion of this chapter. AS TO REPAIRS AND NECESSARIES. 163 the out-fit, when prudence dictates the propriety of such a measure, or the want of personal credit compels them to have recourse to it. The origin of these contracts is certainly very remote, and cannot now be accurately ascertained. It is said by a very learned writer (d), that they took their rise from the practice of allowing the master to hypothecate the ship in a foreign country, in order to raise money to refit. But this opin- [146] ion may well be doubted; for although the practice of lending money upon maritime risks at a high premium was well known to the Romans be- fore the time of Justinian, yet in those titles of the Digest and the Code (e), which expressly treat of this subject, no mention is made of contracts of this nature entered into by the master of a ship in that character, according to the practice which has siuce universally prevailed. And except for the purpose of securing the payment of maritime interest, actual hypothecation was not neces- sary to give the creditor a claim upon the ship, as I have already shewn. This point however is rather a matter of speculative curiosity than of useful research, and therefore I shall pursue it no further. 16. The consideration of these contracts, when made by the owners or part-owners themselves, does not properly belong to this place ; their legality^ and the risks, which the lender is to incur according to general rules, are very ably treated by Mr. Park and Mr. Ser- jeant MarshalLin their chapters on bottomry and re- spondentia. I shall only mention such circumstances relating to them, as are connected with the subject of hypothecalion by the master. () Bridgman's case, 12 Jas. 1. 79. Rep. temp.Holt, 48. Lister -v. Hob. 11 Moor,918. 1 Ro. ^b-530. Baxter, 12 Geo. 1 Stra. 695, Me- Scarborough v. Lyrus. 3 Car. 1. netttie v.Gi&boru, 29 Geo. 3. 3Ter. Latch, 252. Noy, 95. Corset v. Rep. K. B. 267 ffusely. 1 W. and M. Comb. 135. (-w,Diff. 14. 1 7. Z.Molloy, book Rep. temp Holt, 48. Benzen v. 2. ch. 11. sect. 11. See also the Jefferies, 8 8t 9. W.3.1 Ld.Raym. judgmentof SirW.Scott inthe case 152. Johnson v. Shippen, 2 Ann. of the GRATITUDISE, JWazzolla, 1 Ld. Raym.982. Salk. 35. 6 Mod. 3 Rob. A- R. 272. (1) Nor can the master hypothecate the ship, if he has goods of his owner or his own sufficient to meet the necessary AS TO REPAIRS AND NECESSARIES. 175 As an illustration of this rule, that the mas- [156] ter cannot bind the ship for a debt of his own, the following case is related by Loccenius (x). The master of a ship being in a Spanish port, and having exposed the ship to seizure by his neglect to comply with a particular regulation of the country, entered into an agreement with a person, who was supposed to pos- sess sufficient influence to obtain the restitution of the ship, to pay him a very considerable sum with maritime interest, if he should procure the restitution of the ship, and she should afterwards return home in safety : and for securing the payment executed an instrument in the nature of a bottomry bond. By the interest of the per- son, with whom the agreement was made, the ship was restored ; and afterwards returned home in safety ; and (x) Lib. 2. c. 6. s. 12. expences ; nor if the owner have agents or consignees at the ports, who have funds or are bound to afford means for this pur- pose. For the right exists only in case of necessity. Rucher & Co. v. Conyngham, 2 Peters. Adm. Rep. 295. In the case of Cupisino v. Perez, 2 Ball. Rep. 194, the Supreme Court of Pennsylvania held the same doctrine, that the master cannot hypothecate, while there are goods of his own, or of his owners Onboard. But this doctrine has been doubted. Lex. mere. Amer. p. 355. But however this may be, in cases of necessity and where the master cannot otherwise procure the money, he may borrow it on bottomry and hypothecate the ship for the repay- ment, as well at the port of destination as at any other foreign port. Reade v. The Commercial Insurance Company, 3 John. Rep. 352. Nor does it make any difference that the ship is chartered,and the master is appointed by the charterers. Breed, &c. v. Ship Venus, Dist. Court of Massachusetts, 1805, MSS. 176 PART II- CH. 111. MASTER'S AUTHORITY he instituted a suit against the ship upon the instrument executed to him by the master. But it was determined that the abip and owners were not chargeable by this contract. 20. It should be observed of these securities in gen- eral, that if they are given at different periods of a voyage, and the value of the ship is insufficient to dis- charge them all, the last in point of date is entitled to priority of payment, because the last loan furnished the means of preserving the ship, and without it the [157] former lenders would entirely have lost their security ; salvamfecittotiuspignoris causam (y). 29. The value of the ship and freight, supposing (he ship to reach the place of destination, may sometimes be thought an insufficient security for the amount of the expences of the repairs, &c. necessary to put the ship into a condition to proceed with its cargo and perform the voyage. In such a case of necessity, it has been always held, that the master, if he cannot otherwise ob- tain money, may sell a part of his cargo to enable him to convey the residue to the destined port (s) ; and it has lately been very solemnly decided in the Court of Admiralty, that the master may hypothecate the cargo as well as the ship and freight (a). An Imperial ship coming from the Mediterranean with a cargo of fruit to London, was driven into Lisbon to refit. An estimate and survey were made under the authority of a Court at Lisbon, and it was declared by the surveyors that the (y") Bynkershook. Quest. Jur. zola, 3 Rob. A. R. 240.* The in- Pub. lib. 1. c. 19. atrument of hypothecation used on (z) Post, part 3. chap. 3. sect. 8. this occasion will be found in the (a) The GBATITUDIJTK, Maz- Appendix to this Treatise, No. IV. And post, part 3. ch. 3. sect. 8. AS TO REPAIRS AND NECESSARIES. 177 ship was of sufficient value to warrant the repairs. The sum, for which the deed of hypothecation was executed, exceeded the estimate of the ship in its damaged con- dition, and of the freight, by a sum, which was supposed to be about equal to the charge, that would fall upon the cargo for unloading, warehousing, Sec. The ship arrived at London ; and the loan not being [ 158 ] discharged, the creditor instituted a suit in the Court of Admiralty against the ship and Cargo. The ship produced considerably less than its estimated value, on account of ifs being a foreign ship, and the impossi- bility of obtaining a register for it. It was admitted, that the question as to the validity of the hypothecation of the cargo had never been actually contested and de- cided in this country ; but several precedents of pro- ceedings in the Court upon similar cases were found among the records of the Court, and it was agreed, that the practice of hypothecating the cargo in such cases was frequent among merchants. It did not appear whether or no the master had an opportunity of sending the cargo by another ship : but the learned Judge of the Court held that, according to all the authorities on the subject of transhipment, the master was not bound to tranship, and thinking, upon the view of all the circum- stances of the case, that the master had acted for the best according to the appearance of things at the time, decided that the hypothecation of the cargo was valid ; considering the hypothecation of the whole to be both in its principle, and in the consequences, that might ordi- narily result from it, exactly analogous to the sale of a part. On account of the great importance of the ques- 27 178 PART D. CH. in MASTER'S AUTHORITY tioo, the learned Judge invited the parties to bring [ 159] it by appeal before another tribunal (1). 30. It has been observed that wherever the master may pledge the ship, he may pledge the freight also. A question upon the extent of such a pledge has lately been decided in the Court of Admiralty (6). The master of a Hamburgh ship, being at Baltimore, and about to sail for Cork, executed a bottomry bond, pur- porting to bind the ship and her freight, in general (*) The JACOB, Eaer, 4 Rob. Ad. Rep. 245. (1) In the United Insurance Company v. Scott, &c. 1 John Rep. 106, the right of the master to sell the cargo, although shipped on freight,was fully recognized by the Court. Kent. C.J. said " the master way sell apart, or hypothecate the whole of the " cargo pending the voyage, and in a case of necessity, and for " such sale the owner of the vessel will be responsible." Bui the right of the master so to do is at an end, when the cargo has arrived at its port of destination. The master's authority over it in his character of master is then gone. The cargo is then in judgment of law in possession of the consignees, and it matters not that the master is wholly or in part the consignee. If he then as consignee, apply the cargo or its proceeds for the necessities of the ship, he is responsible over to the owners of the cargo for this appropriation, as for a breach of trust, id. ibid. See also, as to the right to sell and hypothecate cargo, Rucher & Co. v. Conyngham, 2 Peters. Adm. Rep. 295. Bu(, the master's power to hypothecate the ship at the port of desti- nation is unquestionable. 3 John. Rep. 352. But the master has no general authority to sell the cargo in a case where the ship is disabled from prosecuting the voyage ; nor can he ac- quire a right by application to a vice-admiralty court, and sel- ling under its authority. Hunter v. Prinsep, 10 East. 378. & post, part 3. ch. 3. s. 8. 9. AS TO REPAIRS AND NECESSARIES. 1 79 terms, neither expressly confined to the freight of (he present voyage, nor extended to future adventures. The ship sailed to Dublin instead of Cork, and thereby the holder of the bond lost the opportunity of instituting proceedings upon it at that time, and the freight was accounted for to the owners, though the deviation did not appear to have been made with this view. From Dub- lin the ship sailed again to America, and from thence to London, at which latter place the holder procured the ship to be sold under the authority of the Court of Ad- miralty ; and the produce being insufficient to discharge the bond, he petitioned the Court to have the freight of the last voyage applied to that purpose. The freight was then in the hands of the agent of the owners : it was objected, that such a bond created a lien upon the freight of the existing voyage only, but the learned Judge of the Court, adverting to the fact of the freight of both voyages having come to the account of the owners, granted the prayer of the petition ; at the same time, desiring " not to be understood as laying " down any general rule as applicable to all cir- [160] " cumstances and all cases, where any third " party might have become interested in the freight of " the subsequent voyage." (1) (1) The master may, in case the ship be chartered, and he be appointed by the charterers, hypothecate the ship, as has been before stated, A.nd the bond may in such case be made to the charterers, who thereby acquire all the legal rights of bottom- ry,notwithstanding there is a covenant in the charter-party ,that the owner will keep the ship in repair, &c. ; for this does not deprive them of securing to themselves, by any other means, any advances made on account of the ship. And therefore 180 PART II. CH. HI. -MASTER'S AUTHORITY where a ship was so chartered on a voyage to Bristol, in Eng- land, and back to Boston, and on the voyage from Bristol, the ship was compelled to go into Kinsale in Ireland to refit, and there the necessary sum was advanced by a person connected in business with the charterers, and a bottomry bond taken in their name for the amount, and afterwards the ship and freight were libelled in the District Court of Massachusetts, Davis J. decreed in favour of the bond. And the learned Judge said, that he did not find any authority, either from decided cases or general principles to introduce the limitations contended for in that case, either as to the rights of the master or the charterers. That the master, although appointed by the charterers, must be considered as approved by the owner, and had the same au- thority as if appointed by him,and^hat although the charterers might have advanced their money, and have recovered the a- mount on the covenant in the charter-party, yet they were not bound so to do ; and by entering into the bottomry contract, they waved their remedy on the charter-party for the advance so made. Breed, &c. v. Ship Venus, 1805, MSS. ante 155, note. But although a ship be well bottomed by the master, yet it does not follow that the lender on bottomry is entitled to the marine interest in all cases. If the voyage has not commenced, by default of the owner, although his right to admiralty process is not devested, yet he is not entitled in ordinary cases to the full marine interest, for the court of admiralty may moderate, at their discretion, the marine interest, in proportion to the ac- tual hazard incurred by the lender. Wilmer v. the Smilax, Maryland District Court, 1804, 2 Peters. Adm. Rep. 295. So where the ship and cargo are owned by the same persons, if the advances are made by a consignee or agent having funds in his hands, or usually giving credit to the owner, or under cir- cumstances that shew he made the advances upon the personal responsibility of the owner, the court will not allow the marine interest. Rucher & Co. v. Conyngham. 2 Peters. Adm. Rep. 295 AS TO REPAIRS AND NECESSARIES. 181 So if such consignee has in any way taken advantage of the party's situation, or diverted the funds in his hands to other ob- jects, which, though consistent with the owner's orders, are not indispensible. Reade v. The C ommercial Insurance Company, 3 John. Rep. 352. But it must not be considered from these cases, that such a consignee may not, under circumstances^ become the valid holder of a bottomry bond. A consignee not in the habit of dealing with or crediting the owner, and not having any goods, funds, or security at the time, seems under no obligation to risk his property without the usual and ade- quate compensation and security. 2 Peters. Rep. 225. So the Consolatodel Mare, art. 104. (3 Rob. 240.) directs that if the merchant is present, having money, he shall lend it ; if he has not money, the master may sell part of the cargo, giving him a lien on the ship for his security. The merchant here alluded to, is the owner of the goods, and his rights do not seem to vary from those of a consignee of the cargo, when freighted, But a bottomry bond on an enemy's ship, is not an interest which is protected on capture. And therefore where in a time of peace, a British merchant had taken a bottomry bond on a French ship, which was captured in the subsequent war, Sir W. Scott held that the claim on the ship was invalidated by the capture and at an end. The Tobago, 5 Rob. Adm. 194. A bottomry bond is preferred to every other claim or priv- ilege for the voyage on which it is founded, except seamen's wages. But this right of preference or lien may be lost by laches or delay, when the interests of third persons intervene. The right therefore should be followed up with reasonable diligence. Elaine v. The ship Charles Carter, 4 Cranch. Rep. 328. The Jacob, 4 Rob. Adm. Rep. 245. And when the voyage has not been performed, but the ship has been lost, the right to recover on the bottomry bond is gone forever, though a compensation in the nature of salvage, may have subsequently accrued to the owner Therefore where thq 182 PART II. CH. 111. MASTER'S AUTHORITY. owner of a ship executed a bottomry bond for 300/. on the ship for a voyage to the West-Indies and back, and during the voyage the ship was captured and condemned in a British Court of Vice- Admiralty, and the ship was sold, and afterwards the decree of condemnation was reversed in the high Court of Ap- peals, and compensation awarded to the owner by the commis- sioners sitting under the treaty between the United States and G. Britain, and after compensation was received by the owner, an action was brought on the bond, the Supreme Court of Mas- sachusetts held that the plaintiff had no right to recover on the bond, the ship having been lost by the perils enumerated in the condition ; and that if any right to recover the amount ex- isted, it must be sought in another form of action. Appleton v. Crowninshield, 3 Mass. Rep. 443. OF MASTERS AND MARINRES. 183 CHAPTER THE FOURTH. OF THE BEHAVIOUR OF THE MASTER JlJYD MARINERS. 1. J. HE great trust reposed in the master by the owners, and the great authority which the law has ves- ted in him, require on his part, and for his own sake, no less than for the interest of his employers, the ut- most fidelity and attention. For if any injury or loss happen to the ship or cargo by reason of his negli- gence or misconduct, he is personally responsible for it; and, although the merchant may elect to sue the owners, they will have a remedy against him to make good the damages, which they may be compelled to pay. So, if he make any particular engagement or warranty with- out a sufficient authority from his owners, although the owners may be answerable to the persons with whom he contracts, by reason of the general power belonging to his situation and character, he is in [ 161 ] like manner responsible to the owners for the in- jury sustained by them in consequence of his acting be- yond, or in violation of, the particular authority given to him (a) (I). (a) The owners are also an- sioners of the Navy, and a naval swerable for damage done by officer be on board, and have the their ship to another through neg- command. Fletcher v- Braddick, ligence ; and this although the 2 New Rep. C. P. 182. ship be chartered to the Comtnis- (1) The law of this section is fully recognized in Purviance. &c. v. Angus, 1 Dall. Rep. 180. The court there said that it is 184 PART II. CHAP. IV.-BEHAVIOUR 2. It is impossible to frame any set of general rules competent to enforce the performance of all the civil ob- ligations of a person of this description, and the Legis- a wrong position that a master of a ship is not answerable for an error in judgment, but only for the fault of the heart in civil matters. Reasonable care, attention, prudence, and fidelity, are expected from the master of a ship, and if any misfortune or mischief ensues from the want of them, either in himself or his mariners, he is responsible in a civil action. And in Talbot v. The owners of three Brigs, 1 Dall. Rep. 95., the responsi- bility of the owners for the default of the master is fully recog- nized. And it seems that proceedings may be instituted in the admiralty, to recover damages from the owners for the torts of the master, and by them again in the admiralty to recover their damages from the master. See the same cases ubi supra. So damages may be recovered against the owner in a suit in the admiralty for running down a ship. The Thames, 5 Rob. Adm. Rep. 308., or against the owners of a privateer for injuries done to the ship, or ill treatment of the crew by the captors. Die Fire Darner, 5 Rob. Adm. Rep. 318. See also the St. Juan Baptista, 5 Rob. Adm. Rep. 36., and the cases cited in note, ante p. 100. The owners of a ship may at their pleasure dismiss the mas- ter. Upon a general retainer for no particular voyage, they may dismiss him without cause assigned. But if he be retain- ed for a particular voyage, and has signed bills of lading &c., he may maintain an action for a wrongful dismission, in which damages may be recovered proportionate to the injury. Mont- gomery v. Henry, &c. 2 Peters. Adm. Rep. 397. 1 Dall. Rep. 49. S. C. And a court of admiralty will dispossess a master though he be a part-owner upon application of the majority of the owners in interest. The New. Draper, 4 Rob. Adro. Rep/ *87. OF MASTER AND MARINERS. 185 lature of this country has very prudently declined the attempt. With respect however to the mariners, whose duty is much more simple, the Legislature has intro- duced a few very important rules (6), which were at first confined to ships sailing from this country to parts beyond the seas ; and afterwards extended to the Brit- ish colonies in America (c). Similar provisions have been since made with respect to vessels of the burthen of one hundred tons and upwards, employed in the coasting trade, and going to open sea (cf). (1) 3. By these rules, the contract for service must be made with the roaster, by a written agreement signed by him and the mariners (e). If after entering into such an agreement, a mariner deserts or refuses to proceed on the voyage, he forfeits to the owners aii the wages then due to him, and a Justice of [ 162] the Peace may, on complaint of the master, owner, or person having charge of the ship, issue a warrant to apprehend him, and in case he refuses to proceed on the voyage, and does not assign a sufficient (6) 2 Geo. 2. c. 36. (e) 2 Geo. 2- c. 36. s. 1. fc? 2. and (c) 2 Geo. 3. c. 31. 31 Geo. 3. c. 39. *. 1. & 2. (rf) 31 Geo. 3. c. 39. (1) The congress of the United States have also passed some statutes for the regulation of seamen employed in the merchant service, and in the coasting 1 trade and fisheries. These regulations apply to ships bound to a foreign port, and to ships of fifty tons and upwards employed in the coasting trade, from a port of one state to a port in any other than an adjoining State ; and to ships of twenty tons and upwards employed in the fisheries. Act, 20. July, 1790. 1 U. S. L. 134. Act, 16. February, 1792.2 U. S. L. 15. 28 1 86 PAUT II. CHAP. 1V.-BEHAVIOUR reason for his refusal, may commit him to hard labour in the house of correction, for not more fhan thirty, nor less than fourteen days ( / ). If be absents himself from the ship without the leave of the master, or other chief officer having the charge of the ship, he forfeits two days pay for every such day's absence, to the use of Greenwich Hospital (g). And in the case of foreign voyages, if upon the ship's arrival at her port of deliv- ery here, he leaves it without a written discharge from the master or other person having the charge of the ship, or if in the coasting trade be quits Ike ship before the voyage is completed and the cargo delivered, or be- fore the expiration of the term for which he engaged, or before he has such a discharge in writing, he forfeits one month's pay to the same use (/t). But these pro- visions do not extend to debar any seaman from enter- ing to serve his Majesty on board any of his ships (t). (1) (/) 2 Oeo. 2. c. 36. *. 3 S3 4, and (A) 2 Geo. 2. c. 36. t. 6. and 31 31 Geo. 3. c. 39. *. 3. Geo. 3. e. 39. a. 4. (g) 2. Geo. 2. c. 36. s. 5. and 31 (i) 2 Geo. 2. c. 36. . 13- and 31 Geo. 3. c. 39. *. 4. Geo. 3. c. 59. s. 4. (l)The Act of U. S. 20. July, 1790(1 U. S. L. 134. chap. 29.) requires that in voyages to a foreign port from the U. S., and in coasting voyages to any other than an adjoining state, the contract for service must be made in writing or in print by the master with the mariners, sect 1. : if, after entering into such an agreement, a mariner does not render himself on board, or deserts so that the ship proceeds to sea without him, he forfeits a sum equal to the advance wages paid him over and beside such advance wages, sect. 2. : a justice of peace may, upon complaint of the master, issue a warrant to apprehend a desert- ing mariner, and may commit him to the house of correction or common gaol, there to remain until the ship is ready to sail OF MASTER AND MARINERS. 187 \ 4. By the common law, the master Las authority over all (he mariners on hoard the ship, and it is their duty to obey his commands in all lawful [163] matters relating to the navigation of the ship, and t.^e preservation of good order : and such obedience they expressly promise to yield to him by the agreement on her voyage, and then to cause him to be delivered to the master, sect. 7. If a mariner absents himself, without leave, after the time agreed on for him to render himself on board at the commencement of the voyage, he forfeits one days pay for every hour of absence, sect. 2 : if, during the voyage, he ab- sents himself without leave for less than forty-eight hours, he forfeits three days pay for every day's absence ; but if the ab- sence exceed forty-eight hours at one time, he forfeits all his wages, and all his goods and chattels on board the ship, or in any store where they may have been lodged at the time of the desertion, and be moreover liable to pay the owner's damages occasioned by the hiring another mariner, sect. 5. Fishermen engaged in the fisheries are liable to like penalties for deser- tion, and may in like manner be apprehended by warrant from a justice of the peace, as mariners in the merchant service. Act, 16. Feb. 1792, eh. 6. sect. 4. And the fishing contract must be in writing, signed by the skipper and the fisherman, and countersigned by the owner, id. sect. 4. The penalty for not complying with the act, in this particular, is a forfeiture of the bounty granted by the act. ib. sect 4. On the other hand, if a ship bound on a foreign voyage, after the voyage is begun, and before leaving the land, is found to he leaky or unfit in her crew or equipments to proeeedonthe voyage,the mate or chief officer,and a majority of the crew may require the ship to stop at the first convenient port, and have the ship surveyed, and if necessary fully equipped and fully re- paired, under the direction of the District Judge or a justice of 188 PART II. CHAP. IV. BEHAVIOUR usually made for their service (fc). In case of disobe- dience or disorderly conduct, he may lawfully correct them in a reasonable manner; his authority in this re- spect being analogous to that of a parent over bis child, or of a master over his apprentice or scholar (/). Such an authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board. But it behoves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelly and oppression. The framers of the ancient marine ordinances appear studiously to have avoided the mention of this power. The French ordinance (m) specifies certain particular modes of punishment, which the master may inflict on " drunken and disobedient " mariners, and those who ill-treat their comrades, or " commit other like faults in the course of their voyage," (fc) See Appendix, No. V.^ magisterin discipulos.dominus in (/) Magister nul lam habet juris- servos vel familiares. Cagaregir, dictionem tngentein suarum navi- Disc. 136. n. 14. cited by VaUn, on urn, sed quandam tantum oecono- the French Ordinance, torn. 1. p. micam potestatem vel discipli- 449. See also Ordin. of Phil. 2. A. nam, qtiae usque ad levem castiga- D. 1563 2 Mag.l9..Mc/%, book 2. tionem, pro corrigenda insolentia ch.S.sect. 12. and the case of Wat- et male morata vita ?cu licentia son v.Chfittie, 2 Bos. and Pull. 224. nautarum et vectorum; quemad- (m) Liv.2. tit. 1. Du Capitaine, modum earn tenet pater in filios, art. 22. the peace. Act, 20. July 1790, ch. 29. sect. 3. And every ship of one hundred and fifty tons and upwards, navigated by ten or more persons, and bound on a foreign voyage, is required to be provided with a medicine chest for the use of the crew, under the penalty of the master's paying for all advice, medi- cine, and attendance of physicians, which any of the crew may stand in need of, in case of sickness, id. sect. 8. And ships bound on a voyage across the Atlantic Ocean shall, at the last port from whence they sail, have on board,under deck, at least sixty gallons of water, one hundred pounds of salted flesh-meat, OF MASTER AND MATIINERS. 189 but it requires the consent of the steersman and mate; by the law of England such consent is [164] not required ; nevertheless the master should except in cases requiring his immediate interposition, take the advice of the persons next below him in au- thority, as well to prevent the operation of passion in his own breast, as to secure witnesses to the propriety of his conduct. For the master, on his return to this country may be called upon by action at law, to answer to a mariner, who has been beaten or imprisoned by him, or by his order, in the course of a voyage ; and for the justification of bis conduct, he should be able to shew not only that there was a sufficient cause for chas- and one hundred pounds of wholesome ship bread, for every person on board the ship,over and besides such other provisions, stores and live stock, as shall by the master or passengers be.put on board, and in like proportion for shorter or longer voyages And in case the same shall not be provided, the master is liable to pay to each of the crew, one days wages beyond the wages agreed on, for every day they shall be put on short allowance, to be recovered in the same manner as their stipulated wages, id. sect. 9. Where in the course of the voyage these articles cannot be obtained, their equivalents in quantity and quality should be obtained, and in such cases the rations allowed in the navy of the U. S. (Act, 1. July, 1797, sect. 7.) seems a proper rule. v. Ship Washington, 1 Peters. Adm. Rep. 219. And the compensation for short allowance will be made to mariners, who in the course of the voyage, ship at a foreign port. Gard- ner, &c. v. Ship New Jersey, 1 Peters. Adm. Rep. 223. A recent act, 2. March, 1805, ch, 88. (7 U. S. L. 301.) enacts that a medicine chest shall be provided for every ship of seventy Jive tons, navigated by six persons in the whole, and bound from the Un'ted States to the West-Indies. 190 PART. H. CHAP. IV. BEHAVIOUR tisement, but also that the chastisement itself was reasona- ble and moderate, otherwise the mariner may recover damages proportionate to the injury received (n). And if the master strike a mariner without cause, or use a deadly weapon as an instrument of correction, where moderate correction may be inflicted, and death ensue, he will be guilty either of manslaughter or murder (o), according to the rules and distinctions of the criminal law of England in analogous cases, all of which are appli- cable to persons in this situation ;, and by the [Io5]late extension of the jurisdiction of the commis- sioners appointed for the trial of offences corn- milted at sea, all offences committed tbere may now be tried before them, and punished as if committed on shore (p). In the case of actual and open mutiny by the crew or any part of them, the resistance of the mas- ter becomes an act of self-defence, and is to be consid- ered in all its consequences from that point of view. The ordinances of Oleron (qr) and Wisbuy (r), declare ibat a mariner who strikes the master, shall either pay a fine, or lose his right hand ; a strange as well as cruel alternative, unknown io the modern jurisprudence of this country (1). (n) To an action of this sort, the entitled to give in evidence under master must plead specially that the general issue, for the purpose the plaintiff committed such a par- of mitigating 1 damages, facts, ticular fault, and that he corrected which, if pleaded, would amount him moderately for it. The plain- to a justification. ll'atsiinv.Chris- tiffby his replication may either tie, 2 Bos. and Pull. 224. deny the cause of correction, or, (o) Captain Ktdii's Case, 5 State admitting the cause,may insist that Trials, 287. the correction was excessive. If (p) 39 Geo. 3. c. 37. the master does not plead his jus- (9) -Art. 12. tification specially, he will not be (rj Art. 24. (1) The authority and duties of the master in the particulars stated in this section, are fully recognized in many cases in the OF MASTER AND MARINERS. 5. But although the master may by force restrain the commission of great crimes, he has no judicial author- ity to punish (he criminal, but ought to secure his per- son and cause him to be brought before a proper tribu- nal of his country (s). By a late statute, all Justices of the Peace are empowered to receive informations touching any murder, piracy, felony, or robbery upon the sea, and to commit the offenders for trial (f). (2) () Hanseatic Orclin. art. 30. Du Capitaine, art. 23. 7?occtt.?,Xot.8 French Ordinance, book 2- tit. 1. (t) 43 Geo. 3. c. 160. sect. 78. District Courts of the U. S. See Relf, &c. v. The Maria, 1 Peters. Adm. Rep. 186. Thorne v. White, 1 Peters. Adm. Rep. 168. Black v. Ship Louisiania, 2 Peters. Adm. Rep. 268. And the master may, in cases of disobedience, correct the of- fending mariner, by imprisonment on board of the ship for a reasonable time, id. ibid. ; and even by imprisonment in a guard ship or common gaol in a foreign port, if such punish- ment be according to the custom of the port, or be required by circumstances, id. ibid, in the notes. Wuilson v. Fairfield, Es- sex S. J. C. Nov. T. 1807, Lemart v. Strout, same term. Orne v. Williams, Essex S. J. C. Nov. T. 1808. cor. Sewall J. at the sittings. MSS. On the other band the law enjoins on the mas- ter a temperate demeanor, and decent conduct toward seamen. By many of the sea laws, he is finable for abusive expressions. or misconduct towards mariners. He risks the consequences, if he commence a dispute with illegal conduct and improper be- haviour. The laws, though often applied to for this purpose, do not encourage or gratify revenge ; they only punish for re- formation or example, 1 Peters. Adm. Rep. 175. (2) The congress of the U. S. have provided by statute fcr the punishment of many crimes committed on the high seas, which will hereafter be noticed. But it has been questioned, whether the courts of the U. S. have any jurisdiction for the 192 PAKT II. CHAP. IV.-BEHAVtoUIt G. In general also the master may for misbehaviour discharge a mariner from his service in the [ 166 ] ship (2) ; but in the African slave trade, the mas- ter of a British ship is forbidden to do this on punishment of crimes committed on the high seas, unless the same be specially provided for by statute. In the Circuit Court of the U. S., the court were divided in opinion on the point of jurisdiction, on a case of an assault and battery committed at sea, Judge Peters affirming and Judge Chase denying it. But in a late case (1806) where one Magill (a mate) was in- dicted for murder, in killing his captain in the haven of Cape Francois, and it appeared in evidence that the blow was given on board the ship, but the death ensued on shore ; the court consisting of Judges Washington and Peters, ruled that the de- fendant ought to be acquitted, for that the whole offence, both the stroke and the death, must occur on the high seas to warrant the jurisdiction of the court ; but they ordered the defendant to be bound over to answer at the next court to a charge of assault and battery, and Judge Washington, on that occasion said, " There " are undoubtedly in my opinion many crimes and offences a- " gainst the authority of the U. S.,which have not been special- " ly defined by law ; for I have often decided that the federal " courts have a common law jurisdiction in criminal cases." U. S. v. Magill, 4 Dall. Rep. 426. S. C. 1 Peters. Adm. Rep 168. note. By the act of the U. S. 24. Sep. 1789 ch. 20. sect. 33. (1 U. S. L. 72.) any Justice or Judge of the United States, or any justice of the peace, or other magistrate of any of the U. S., where any offender is found, may arrest and commit him for trial, for any offence committed against the United States. (2) The right of a master to discharge a mariner for misbe- haviour, seems fully recognized in several decisions in the Dis- trict Courts of the U. S. But the misbehaviour must however OF MASTER AND MARINERS. 193 any pretence whatsoever, unless he (urns him over unto one of his Majesiy's ships of war, or to assist a ship in be of an aggravated nature, for slight and venial offences will not authorize a discharge. If a mariner be incorrigibly disobe- dient and mutinous, and persist in such ill conduct ; if he be guilty of crimes or gross dishonesty ; if he become incapacita- ted to perform his duty from his own improper conduct, he may be discharged. But if a mariner be disobedient and mutinous, and repent and offer to make satisfaction and to return to his duty,the master is bound to receive him. If the master will not in such case receive and reinstate him, but discharges him, the maritime laws declare that he may follow the ship and recover his wages for the whole voyage. See Laws of Oleron, art. xiii. and Thome v. White, 1 Peters. Adm. Rep. 168. Relf& others v. Ship Maria, id. 186. Atkins v. Burrows, id. 244. Black v. Ship Louisiana, 2 Peters. Adm. Rep. 268. And if a master wrongfully discharge a mariner, he is liable to answer in dam- ages therefor. Atkins v. Burrows above cited. Hulle v. Height- man, 2 East. Rep. 145. The same law applies as well to the mate and subordinate officers as to the mariners. When a ship is sold in a foreign country and the crew dis- charged, and when a mariner, a citizen of the U.S., is with his own consent discharged in a foreign country,the master must pay into the hands of the American Consul or agent at the port of discharge, for every mariner so discharged, three months' pay over and besides his wages, two thirds thereof to be paid by the consul or agent to the mariner discharged, upon his engage- ment, on board any ship to return to the U. S. and the other third to be retained for the purpose of creating a fund for the passages of mariners, citizens of the U. S., desirous of returning thereto, and for the maintenance of American mariners, who are destitute at such foreign port. Act, 28. February, 1803, cjb. 62. 6 U. S. L. 206. 194 PART II. CHAP. IV. BEHAVIOUR actual distress (M). And in this trade, " if any officer, 11 mariner, or seaman, shall behave inariotous,sedilious, "or mutinous manner," the master may put him into confinement, but must within twenty-four hours report to the commander of any of his Majesty's-ships present, or within a convenient distance, who is authorized to enquire and examine upon oath into the cause of com- plaint, and grant such remedy as the case oay require : if no such ship is present, the cause of complaint may be examined into by the master and two officers, in the pre- sence of the ship's company ; and if it shall be judged necessary for the safety of the ship and cargo, to con- tinue the offender in confinement, such determination shall be drawn up in writing, and the reasons of the resolutions stated at large, and signed by the master and two officers, which they are to report without delay to the commander of the first of his Majesty's ships they may fall in with, ami, in default thereof, to the gover- nor or chief officer of any British fort in Africa, cr the governor of any of the West-India islands, on arrival at any port or road therein, that proper measures may be taken to bring the offender to justice (#). [ 167 ] 7. The term barratry, which is often used as well by foreign writers, as those of our own na- tion, is generally understood in this and in most other countries to denote a fraudulent act of the master or mariners commitied to the prejudice of the owners of the ship (y} (I). In France it is often used in a more (u) 39 Geo. 3. c. 80. t. 29. (y) Emeri^on, torn. 1. p. 366. (x) Id. .. 31. (1 ) Barratry is a fraudulent breach of duty by the master in respect to his owners, or, in other words, it is a breach OF MASTER AND MARINERS. 195 enlarged sense, and comprehends acts of mere ignorance or unskilfulness, not accompanied with a fraudulent de- sign (z). This word taken even in the more limited sense, in which it is used in this country, does not de- nominate any species of crime punishable by law ; but several offences commilted by the master and mariners in violation of their trust and duty, and which fall with- in the definition of barratry, are punishable by different statutes, which I shall now proceed to mention. 8. FIRST, as to the offence of wilfully destroying the ship. This is now punishable with death. By (he first statute passed on this subject, in which it is recited that " it often happens that masters and mariners of (2) Valin, on the Frenth Ordinance, torn. 2. p. 80. Pothicr, des assurances, num. 65. in respect to his owners, with a criminal intent or ex maleficio. And it makes no difference in the reason of the thing wheth- er the prejudice suffered by the owner be owing to an act of the master induced by motives of advantage to himself, malice to the owner, or a disregard to those laws, which it was the master's duty to obey, and which (or it would not be barratry) his owners relied upon his observing. Therefore where a ship was lost in consequence of an illegal act of the master, not au- thorized by the owner, in going to an enemy's port and there carrying on trade, it was held that the conduct of the master was barratry. Earle v. Rowcroft, 9 East. Rep. 126. So if the master sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled, that is barratry. Knight v. Cambridge, 1 Str. 581. 2Ld. Ray. 1349. 8 Mod. 236. though this point appears to have been decided, in this case only, by the references of later cases. Stamma v. Brown, 2 Str. 1 174., & MS. note cited 9 East, 135., & Vallejo v. Wheeler, Cowp. 153. So sailing out of port in breach of an embargo. Per 196 PART II. CHAP. IV BEHAVIOUR " ships having insured or taken upon bottomry greater " sums of money than ihe value of their adventure, do " wilfully cast away, burn, or otherwise destroy iht a ships under iheir charge, to the merchants [ 168 ] " and owner's great loss." It is enacted, " that " if any captain, master, mariner, or other offi- " cer belonging to any ship, shall wilfully cast away, " burn, or otherwise destroy the ship, unto which he Buller J. in Robinson v. Ewer, 1 T. Rep. 127. So cruizing un- der letters of marque, which were taken on board without an intention for being used for this purpose. Moss v. Byrom, 6 Term. Rep. 379. So resistance of right of search by the mas- ter of a neutral ship, per Buller. Saloucci v. Johnson, cited Park on Ins. ch. 18. and Garrels v. Kensington, 8 Term. Rep. 230. So smuggling, Havelock v. Hancill. 3 Term Rep. 277. Criminal intent or fraud in the master, is the very essence of barratry,and mere negligence does not amount to it. Therefore a deviation through mere ignorance is not barratry. Phyn v. Royal Exch. Assur. Company, 7 T. Rep. 505. See also M'ln- tire v. Bowne 1 John. Rep. 229, cited ante p. 25. note. But where a master sailed with his ship from a port in pur- suit of another ship, which had been run away with, and was to receive 100/. for his pursuit, and after eight days he return- ed, and afterwards the ship was lost ; it appearing that the master did not undertake this expedition merely for his own benefit, the court were of opinion that his conduct amounted to a mere deviation, and not to barratry. Hood's Exrs. v. Nesbit, 2 Ball. Rep. 137. See also Thurston v. The Colum- bian Insurance Company, 3 Cain. Rep. 89. Where a fraudulent act is done by the master, the law pre- sumes that it is done for his own benefit, and the onus to the contrary lies on the other party. Hendrick v. Delafield, 2 ain. Rep. 67. OF MASTER AND MARINERS. 1 97" " belongetb, or procure the same to be done, he shall " suffer death as a felon ()" By the second, it is enacted " that if any captain, " master, or mariner, or other officer belonging to any ship, <- shall wilfully cast away, burn, or otherwise destroy the " ship, unto which he belonged), or procure the same to u be done,to the prejudice of the owner or owners thereof, 11 or of any merchant or merchants, that shall load goods " thereon, he shall suffer death as a felon (ft)." Further provisions were made in the reign of George the first (c), but these, soon after the determination of an important prosecution at (he Old Bailey (//), and presume in order to remedy a defect in the law mani- fested on that occasion, were repealed by the Legisla- ture (e), except as to prosecutions for offences commit- ted before the 16th of July 1803 (/). And it was then enacted, " That if any person or persons shall, from " and after the sixteenth day of July 1803, wilfully cast " away, burn, or otherwise destroy, any ship or vessel, " or in anywise counsel, direct, or procure the u same to be done, and the same be accordingly [ 169 ] '* done, with intent or design thereby wilfully " and maliciously to prejudice any owner or owners of " such ship or vessel, or any owner or owners of any " goods loaden on board the same, or any person or " persons, body politic or corporate, that hath or have " underwritten or shall underwrite any policy or policies " of insurance upon such siiip or vessel, or on the " freight thereof, or upon any goods loaden on board " the same, the person or persons offending therein be- () 22 fcf 23 Car. 2 c. 11. s. 12. farlane, Addenda to East's P. 0. (6) 1 ., st. 2. c. 9. . 4. p. xxvi. (<) 4 G?e. 1. c. 12. sect. 3.11 Geo. () 8 Geo. 2. f- 29. tect. 10. MARINERS. 1 209 14. By the ancient marine ordinances, if a mariner falls sick during a voyage, or is hurt in the performance of his duty, he is to be cured at the expeuce of the ship, but not if he receives an injury in the pursuit of bis own private concerns (a) (1). (a) Laws of Oleron, art. 6, of the laws of Oleron ubi supra. See Wisbty, art. 18, of the Han*e post, part 4, ch. 2. s. L>. Towns, art. 39, &c. See Cleirac on (1) Nor is he to be cured at the expence of the ship, if the sickness or disability is owing to vicious or unjustifiable con- duct. Laws of Oleron, art. 6. In one case, Judge Peters seems to have considered, that the cure is to be at the expence of the ship when a seaman is disabled on actual duty, but not when he is taken sick or (owing to no misconduct) accidentally dis abled while in service. Walton, &c. v. Ship Neptune, 1 Peters. Adm. Rep. 151. But this doctrine may seem to be qualified by a note to the text in the same case, and also by a note to Hastings, &ic. v. Ship Happy Return, 1 Peters. Adm. Rep. 255 ; and as to the case of sickness, the doctrine is contrary to the laws of Oleron, art. 7. The act of Congress, (29. July, 1790, ch. 29. sect. 8.) provides that if a medicine chest is not provided and kept fit for use in the cases required by the act, the master of the ship shall provide and pay for all such advice, medicine, and attendance of physicians, as any of the crew shall stand in need of, in case of sickness, without any deduction from their wages. Judge Peters seems very reluctantly to have held that if the medicine chest is so provided, the seaman must pay for chirurgical and medical advice and attendance, and says, " I have not been " perfectly satisfied that the seamen should pay the bill for u medical advice, which, to complete the intent of the provi- " sion, should be a charge on the ship ; but finding the weight " of authority that way, I have yielded." But the same Judge 31 210 PART n. CHAP. IV. BEHAVIOUR 15. If by shipwreck, capture, or other unavoidable accident, any seafaring men or boys, subjects of Great Britain, are cast away in foreign parts, the governors, minister, and consuls appointed by his Majesty, or where none such are resident, two or more British mer- chants there residing, are required lo provide for and subsist them, at the rate of sixpence per day, for which they are to send bills with proper vouchers to the com- missioners of the navy, and to put them on board the first ship belonging to his Majesty that arrives there, or within a convenient distance, and in case no [180] such ship shall be found, to send them onboard such merchant ships bound for Great Britain as shall be in want of men : and if neither case happens within a convenient time, to provide them a passage homeward in the first merchant ship bound for Great Britain, of which the master is bound to receive, not exceeding four persons for every one hundred tons of his ship's burthen ; and he is to be paid sixpence per day by the commissioners of the navy for such of them, as he did not want towards his own complement of men (6) (1). (6) 1 Geo. 2. it. 2. c. 14. . 12. seems to have held generally, that the medicine and nursing of the sick seaman, and even his board on shore, where circum- stances required it, were charges on the ship. See the cases and notes cited above, and in conformity thereto, the laws of Oleron, art. 7. (1) The Act of the U. S. 28. February, 1803, ch. 62. 6 U. S. L. 206. sect. 4. enacts, that the consuls or other agents of the U. S. at foreign ports, shall provide subsistence and passages OF MASTER AND MARINERS. 211 16. If a master of a merchant ship being abroad shall force any man on shore, or wilfully leave him behind in any of his Majesty's plantations, or elsewhere, or re- fuse to bring home again all such of the men he carried out with him, as are in a condition to return, when he shall be ready to proceed in his homeward-bound voyage, every such master shall, being thereof legally convicted, suffer three months imprisonment (c) (2). (c) 11 # 12 Wm. 3. c. 7- t. 18. to the U. S. for destitute American seamen in a reasonable man- ner, at the expence of the United States ; and masters of ships are thereby required, under the penalty of one hundred dollars, to take on board at the request of such consuls or a- gents, at a price not exceeding ten dollars for each person, two seamen for every one hundred tons burthen of the ship, and to transport them to the United States ; and the seamen, so put on board shall, if able, do duty during the voyage. (2) See ante 165. sect. 6. and quere if this statute applieato a case of discharge for misbehaviour. 212 PART II. CHAP. V. CHAPTER THE FIFTH. OF PILOTS. J. HE name of pilot, or steersman, is applied either to a particular officer, serving on board a ship during the course of a voyage, and having the charge [ 181 ] of the helm and of the ship's route ; or to a per- son taken on board at a particular place for the purpose of conducting a ship through a river, road, or channel, or from or into a port. The French Ordinance, contains several regulations calculated to obtain the necessary skill and experience in persons of the first description (d). In this country there is no particular provision relating to them, and many ships are naviga- ted without an officer of this description, the master taking upon himself the charge of the helm, and the conduct of the vessel. Pilots of the ser.ond description are established at several places in this country by ancient charters of in- corporation or particular statutes (p). And in general the master of a ship engaged in foreign trade must put his ship under the charge of such a pilot, both in his outward and homeward voyage, within the limits of (ays Eoerius, parchment afterwards cut in two, "in England and Aquitaine, to re- the practice must have been very " duce contracts into writing on a incnnvenient,as neither party could "chart, divided afterwards into inform himself in the absence of ' two parts from top to bottom, of theother of the stipulation he had "which each of the contracting engaged to perform . " parties took one, which they AFFREIGHTMENT BY CHARTER-PARTY. 217 the two parts of this and other instruments being usually written in former times on one [18.0] piece of parchment, which was afterwards divi- ded by a straight line cut through some word or figure, so that one part should fit and tally with the other, as evidence of their original agreement and correspondence, and to prevent the fraudulent sub- stitution of a fictitious instrument for the real deed of the parties. Wilh the same design indentation was afterwards introduced, and deeds of more than one part thereby acquired among English lawyers the name of Indenture. This practice of division however has long been disused, and that of indentation is become a mere form. I propose in the present chapter to consider the modes in which this contract may be made, and to mention the usual stipulations contained in a charter-party, and some particular covenants, that have furnished occa- sion for the decision of a Court of Justice: reserving the consideration of the general duties, that arise as well out of the contract for conveyance in a general ship, as of this species of contract, for distinct [1861 chapters hereafter. 2. This instrument, when the ship is let at the place of the owners' residence, is generally executed by them, or some of them, (and frequently by the master also,) and by the merchant or his agent. In a foreign port it must of necessity be executed by the master only, and the merchant or his agent, unless the parties have an agenf resident in such port, authorized to this purpose by deed or letter of attorney under sea!. I have before observed, that the execution of a charter- party by the master, although said to be done on behalf 32 218 PART I1L CHAP. I. CONTRACT OF of the owners, does not furnish a direct action, ground- ed upon the instrument itself, against them. This de- pends upon a technical rule of the law of England (6), applicable as well to this as to other cases, and not affect- ed by the mercantile practice of executing deeds for and in the name of absent persons : the rule of the law of England being, that the force and effect, which that law gives to a deed under seal, cannot exist, unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction ; or, in his absence, by an agent authorized to do so by another deed : and in every such case the deed must be made and [187] executed in the name of the principal (c). The agent indeed, either of the owner or merchant, may, and sometimes does, execute a charter-party, and covenant in his own name for performance by his prin- cipal, so as to bind himself to answer for his principal's default, by force of the deed. And in an action to re- cover freight or demurrage, claimed in pursuance of a charter-party by deed, the declaration must be specially framed on the deed itself (J). Another technical rule of the law of England, applica- ble also to the contract by charter-party, should be no- ticed in this place. If a charter-party is expressed to be made between certain parties, as between A. and B. ow n- ers of a ship, whereof C. is master of the one part, and D. and E. of the other part, and purports to contain (A) ffarrison v. Jack/ton # others, by A. B. his attorney," or by writ- 7Ter. Rep.207.and Hortleyv. Rush ing " A B. for C. D." provided he &f another, (the case of a charter- delivers the instrument as the deed party) there cited. of C. D JVilks & anolfter v. Backt. (c) If C. D. by a proper deed 2 East. 142. authorize A. B. to execute a bond (d) Jitty v. Parish, 1 B. & P. or otherdeed for him, A. B. may New Rep. 104. d9 this either by writing " C. D. AFFREIGHTMENT BY CHARTER-PARTY. 219 covenants with C. nevertheless C. cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release of them, even although he seals and delivers the instrument (e). But if the char- ter-party is not expressed to be made between parties, but runs thus : This charter-party indented witness- eth, that C. master of the ship W. with consent [188] of A. and B. the owners thereof, lets the ship to freight to E. and F. and the instrument contains covenants by E. and F. to and with A., and B ; in this case A. and B. may bring an action upon the covenants expressed to be made with them ; although, unless they seal the deed, they cannot be sued upon it (/). This lalter therefore is the most proper form. 3. By this contract a ship is let for a voyage to one or more places: the freight is expressed to be a sum of money, for the entire ship, or an entire part of the ship, or for each ton or other portion of its capacity ; and this gum is again either a gross sum for the whole voyage or voyages, or a particular sum for every month or week of the ship's employment; sometimes also the freight is expressed to be a certain sum for every ton, cask, or bale of goods put on board, in which case the merchant usually covenants not to put on board less than a speci- fied number of tons, casks, or bales ; and where the pay- ment is to be by the ton of goods, it is usual and proper to add, " and so in proportion for a less quantity than u a ton," as it was formerly decided in a case where these words were omitted, that the owner could recover nothing for a hogshead (g-). These variations in the (e) Scudamore v. Yandenstcne, 2 and see Gilby r>. Copley, 3 Lev. 138. Inst. 673. tr) Rea v- JBurnis, 2 Lev. 124. (/ ) Cooker 1>. Child, 2 Lev. 74. 220 PART HI. CHAP. I. CONTRACT OF mode of paying the freight have given rise to [189] some questions and decisions on that article, which will be more properly noticed in the chap- ter on freight. 4. The merchant, who has so hired a ship, may lade it either with his own goods, or if he has not sufficient, may take in goods of other persons ; or he may wholly underlet the ship to another. By the French Ordinance, under-Jetting at an advanced price is prohibited (ft) : a wise regulation, though not adopted by our law, and perhaps not rendered necessary by the practice of our merchants. If it be necessary, a clause may easily be introduced into all charter-parties to prevent the practice. 5. The charter-party usually expresses the burthen of the ship (t), and by the French Ordinance it is required to do so (A:). A mistake in the amount of the burthen may in some cases be prejudicial to one party or the other. The French Ordinance provides that the master, who declares his ship to be of a burthen exceeding the truth, shall answer the merchant in damages, but that an error shall not be deemed to exist, unless it exceeds a fortieth part (/). According (o Molloy, if a ship be freighted by the ton, and found of less burthen than ex- pressed, the payment shall be only for the real burthen (w). And if a ship be freighted for /wo hundred tons, [ 190 J or thereabouts, the addition of thereabouts, says the same author, is commonly reduced to be Jive ton more or less. The wise provisions of the stat- utes for registering British ships, will probably prevent (A) Liv. 3. lit. 3. fret. art. 27. (k) Liv. 3. tit. I. Charte-parties, () See on this head Straccha de art. 3. navibiu, par. 3. num. 4. ad. 14. in- (0 Liv. 3. tit. 3. fret. art. 4 # 5. elusive. (m) Molloy, beok 2. chap. 4. s. 8, AFFREIGHTMENT BY CHARTER-PARTY. 221 any mistake in this matter, and certainly furnish the means of detecting a wilful misrepresentation (). 6. The contents of this instrument are varied accord- ing to the nature of the intended voyage, or the will of the parties ; but the usual stipulations on the part of the owner, or master, are, that the ship shall be tight and staunch, furnished with all necessaries, for the intended voyage, ready by a day appointed to receive the cargo, and wait a certain number of days to take it on board. That after lading she shall sail with the first fair wind and opportunity to the destined port (the dangers of the seas excepted) and there deliver the good& to the mer- chant or his assigns in the same condition they were re- ceived on board ; and further, that during the course of the voyage the ship shall be kept tight and staunch, and furnished with sufficient men and other necessaries, to the best of the owner's endeavours (I). (n) See part 1. chap. 2. Indeed it is now usual to say so many tons register measurement. (1) But it seems the covenant that the ship shall be tight and strong, and equipped for the voyage, is not a condition prece- dent to the recovery of freight. If the ship has been actually employed by the charterer, the freight becomes payable ; but if in consequence of the neglect of the owner to make the ship tight and strong, the charterer has been prevented from any use of the ship, it is a complete bar to an action for freight, be- cause the consideration of the covenant to pay freight, wholly fails. However in the first case the charterer has his remedy to recover damages for any injury sustained by the neglect of the owners to keep the ship tight and strong. Havelock v. Geddes, 10 East. Rep. 555. And as ships are liable to acci- dents in the course of the voyage, by which repairs become 222 PART III. CHAP. I. CONTRACT OF The owner may indeed, and sometimes does, by special clauses make himself still further liable, and ren- der himself answerable in the case of accidents or mis- fortues, which otherwise would furnish him with an excuse. As in the case of a charter-party made [ 191 ] with the commissioners of the transport office, by which the owner covenanted that the ship should be manned with a specific number of men in proportion to her bulk, and that the whole number should be constantly on board, and which contained a proviso that the commissioners should be at liberty to mulct and make such abatement out of the ship's pay, which was a fixed sum for 12 months, as they should think reason- able, "upon the loss of tinse, breach of orders, or ne- " gleet of duty by the master, or from the ship's inu- " bility to execute or proceed on the service en which she "might be employed, being made appear,'* it was held that the commissioners had a riht to make an abate- necessary it seems that if the hire be by the month, freight does not cease to accrue during the time exhausted in making those repairs, at least if there be not neglect and delay on the part of the owner, id. ibid. Nor does a covenant to load a complete cargo for the freighter or charterer, at a specified rate for hemp, iron,&c. and therewith to proceed on the voyage, con- stitute a condition precedent, so that a recovery cannot be had for the delivery of a short cargo. Ritchie v. Atkinson- 10 East. Rep. 295. But the remedy for the freighter or charterer, is upon the contract for damages. Atkinson v. Ritchie, 10 East. 530. And in such action a well grounded apprehension of a hostile embargo, is no defence to the master or owner, id. ibid. See also the general duty of the owner to keep the ship in re- pair. Post, 223. note. Putnam v. Wood, 3 Mass. Rep. 481. AFFREIGHTMENT BY CHARTER-PARTY. 223 ment, a service to which (he ship was ordered at Que- bec, having been delayed for a considerable time, from want of mariners, although the want was occasioned by the death of some of the original crew, who had died of the small-pox in the course of the voyage thither, the desertion of others at that place from fear of (he distem- per, and if was impossible lo procure a fresh supply of bands during the lime (o). On the other hand, the merchant usually covenants to load and unload the ship within a limited number of days afler she shall be ready to receive the cargo, and after arrival at the destined port ; and to pay the freight in the manner appointed. It is usual also for each of the parties to bind himself, his heirs and exec- utors, and the owner or master the ship and [192] her freight, and the merchant the cargo to be laden, in a pecuniary penally for ihe true performance of their respective covenants. Frequency also it is stipulated that the ship shall, if required, wait a further lime lo load and unload, or to sail with convoy, for which the merchant covenants to pay a daily sum. This delay, and the payment to be made for it, are both called demurrage. Sometimes also particular clauses are in- troduced in favour of the owners, to take away their responsibility for embezzlement of the master, or other matters, for which they would otherwise be answerable. 7. But although the ship and freight are by the terms of a charter-parly expressed to be bound to the perform- ance of the covenants on the part of the owners or master, and this is conformable to the maritime law ; yet, as I have before observed (p ), there does not ap- (o) Seatsonv. Shank & tthcrs, (/) Ante, part 2. chap. 2. sect. 5 3 East. 233. 224 PART HI. CHAP. L CONTRACT OF near to be at present any mode of obtaining in this country the benefit of the security of the ship itself in specie, for the performance of such a contract made here. Neither can the owners in all cases have the full ben- efit of the clause, by which the cargo is expressed to be bound to the payment of the freight and performance of the covenants on the part of the freighter or merchant. To this purpose the following case is in point. [ 193] Two persons, who were factors, hired a ship of one Paul at the rate of 48f. per month, and execu- ted a charter-party, by which the goods to be put on board were made liable to him, and they had power to appoint the master and mariners. Some merchants in the West- Indies loaded the ship with goods, and allowed the fac- tors 9/. per ton for the carriage. The factors, who had thus chartered the vessel in their own name, became bankrupts. Paul instituted a suit in the Court of Chancery, to compel the merchants to pay him for the hire of the ship, insisting that they were liable to do so by reason of this clause in the charter-parly. But the Lord Chancellor, Hardrvicke, decided that he should recover of them no more than they had engaged to pay the fac- tors for the freight, and that they were not liable to make up the deficiency to him. His Lordship observed that by the general law the cargo is liable to pay the freight: but that in this case the 48/. per month was improperly termed the freight of the goods, being rather the hire of the ship, that the factors had made an agree- ment with the master on their own account, and not on the part of the merchant, and therefore the merchants were not liable ; otherwise they would be in the hardest case imaginable, for they would be liable to any private AFFREIGHTMENT BY CHARTER-PARTY. 225 agreement between the occupier of a ship and the orig- inal owners of it. " A person," said his Lordship, " that lets out a ship to hire, ought !o take care "that the hirer is a substantial man, it is his [ 194] "business lo look into Ibis ; and if the persons " who hire are not competent, ihe master must suffer for "his neglect. Whatever hardship therefore there may "be on the one hand to the person, who lels out to hire, "the hardship is much greater on the other side; and " what gives additional \veight lo the merchant's case, is "the great convenience this gives to trade in gener- al( 9 >" 8. In all maritime transactions expedition is of the utmost importance, for even by a short delay the season or object of a voyage may be lost. And therefore If either party is not ready by the time appointed for the loading of the ship, the other may seek another ship or cargo, and bring an action to recover the damages he has sustained. Nay, according to Molloy, even if part of the lading be put on board, and the merchant cannot furnish the residue, the owner may annul the contract and lade his ship with other goods(r); but the same author adds, that it is by no means prudent to do so without good reason and deliberation. I apprehend the author, who here alludes to a covenant 'o furnish an en- tire lading, must be understood to speak of a part insuf- ficient in value to answer the freight engaged to be paid ; for if goods of the merchant, who hires the ship, sufficient in value to answer such freight, be put [ 19/> ] on board, it seems reasonable that the merchant, upon whom the loss of the deficiency will fall, should (y) Paul V. Birch, 2 Atkins 621. (r) Molloy, book 2- ch. 4. s. 3.; 33 926 PART III. CHAP. I. CONTRACT OF have the right (o fake the loss upon himself, and order the ship to sail. And accordingly the French Ordinance directs, that if the ship be freighled by the great, and the merchant do not furnish a full lading, jet the toaster shall not without his consent take in other goods lo com- plete the lading, nor without accounting to him for the freight of such goods (t); which direction is consonant to general principles of law ; for the hirer has a right to use the thing hired in any manner most agreeable to himself, not differing from the purpose, for which it was let to him. And in this particular case the sale of the merchant's goods may be prejudiced by taking other commodities to the market, for which he has destined them. But as the lading is the owner's best security for the payment of the freight, if goods sufficient to an- swer such payment are not put on board, and the mer chant is known, or reasonably suspected to have become insolvent, the owner will incur no risk of damages by annulling the contract, or taking other goods to secure bis freight, which, if it can be done, is the better inelhod (I). (s) Liv. 3. tit. 3. Fret. art. 2. Pothier, Charte-partie, num. 20. (1) Questions sometimes arise as to which party is to do the first act, in relation to a mercantile transaction. The plaintiff and defendant agreed to enter into copartnership for the pur- pose of making four shipments to Buenos Ayres. The plaintiff, among other things, covenanted to transfer to the partnership all his powers under a royal licence, (which he had obtained) and to send four American ships to Buenos Ayres to be laden with licit goods, to be chosen, to the amount of $15,000 for each vessel, by the plaintiff, and not above $25,000 at the first cost, the funds and vessel to be furnished by the defendant AFFREIGHTMENT BY CHARTER-PARTY. 9. A charter-party, like every other deed, takes Us effect and operation from the day, on which it is sealed and delivered, and not from (be day, on [ 196] which it bears date, if different from the day of the delivery, unless there be words of reference to the day of the date. And therefore, where by a charter- party dated the 9lh day of October, but not delivered till the 2HtU of October, one parly covenanted to pay a moiety of the value of all the corn " which then was and there- " after should be laden on board the ship," it was held that he was not liable to pay for any corn, that was not really on board the ship on or after the 28th of October. In fact, the corn was cast away between the 9th and the 28lb of October (/). (<) Oshey v. Hicks, Cro. James, 263, The plaintiff also bound himself to make choice of the articles, or to send samples, if necessary. The defendant agreed that, within a month from the date of the contract, the first expedi- tion should proceed from Boston, and the three others succes- sively with the interval of a month ; and in case of default in sending the expedition in due time, the contract, as to that ex- pedition was to be void. In an action of covenant, the plaintiff alleged as breaches, that the defendant did not furnish the ves- sels to be loaded at Boston, and that the first vessel did not sail from Boston within a month. The defendant pleaded a- mong other pleas, that the plaintiff did not choose or select the goods necessary for the first voyage ; and on demurrer, the Court held that the plea was bad ; for selecting the goods was not a condition precedent, and that in order of time the defendant was bound to do the first act, to wit, provide a ves- sel. Barruso v. Madau, 2 John. Rep. 145. 228 PART in. CHAP. I. CONTRACT OF 10. The word " days" used alone in a clause of de- murrage for unlading in the river Thames, is said to be understood of working days only, and not to comprehend Sundays or holidays, by the usage among merchants in London (u) ; but if is much better to mention working, or running*, days expressly, according to (he intention of the parties. The payment of demurrage, stipulated to be made while a ship ia waiting for convoy, ceases as soon as the convoy is ready to depart; and such payment, stipulated to be made while a ship is waiting to receive a cargo, ceases, when the ship is fully laden, and the necessary clearances are obtained, although the ship may [ 197 ] in either case happen to be further detained by adverse winds or tempestuous weather. And if the ship has once set sail and departed, but is afterwards driven back into port, the claim of demurrage is not thereby revived. Thin appears by the two following authorities : FIRST, as to nailing for convoy. Two ships, the Swallow galley and the Beak galley, were hired by char- ter-party, for a voyage from Leghorn to several porls in the Mediterranean, and from thence to London, and it was stipulated, that after receiving their cargo at the ports in the Mediterranean, they should sail directly for Gibraltar, and there remain until some convoy should then next present from thence, bound eilher for Lisbon or England, and sail wilh such convoy either for Lisbon or London, and if the convoy should not proceed direct- ly for England, should remain at Lisbon until some con- voy should present from thence for England, and then sail with such convoy ; and if the convoy should not go , and remain answerable "for the greater." The expence of saving the goods was held to be a general average, and the owners were held responsible for the whole extra expence of bringing the goods up from Margate. 16. Upon the effect of Ihe before-mentioned clause, by which it is agreed, that if the ship shall not arrive in safety in the Thames, the company shall not be liable for (e) The same question upon the decided, according 1 to the unanU construction of these clauses was mous opinion of the Judges, that submitted to Hie/fouse of Lords up- the owner w^s not liable to make on a writ of error, in the case of satisfaction to theCompany for the Tod v. The E. I. Company ,- the damage done to goods in the ship House,after consulting the Judges, by storm. May 20th, 1788. AFFREIGHTMENT BY CHATER-PARTY. 241 any freight or demurrage, another question arose in the case of the ship, Winchelsea (/), [ 212 ] which had been let to the company by a charter- party containing that clause, and whereby the company had covenanted to load the ship home within three months after her arrival in India, with a proviso however authorizing them to detain her in their service a year after the three months, at certain rates of demurrage therein specified. The company detained the ship in their service in India, and toward the end of the year after the three months sent her to Fort Saint Davids, where she arrived after the expiration of that year; and the master upon his arrival informed the president of that fort, that unless the company would allow demur- rage after the rate of the charier-party, he would pro- test against them for all damages, loss of time, and other accidents ; whereupon the president and council agreed that the owners should be allowed demurrage for so long time as the ship should be detained in the company's service in India. She was so detained some time long- ger, and before she bad received any lading homeward was lost in a storm. The owners sued the company upon the charter-party. After a trial and verdict, and while the case remained for the judgment of the Court of King's Bench, the cause was compromised by the company's paying demurrage from the expiration of the year after the three months, until the time of the loss, with the costs. And Lord Mansfield then [ 213] declared, "that the Court was very clear that (/) Hume v. E. I. Company, 1 form of action was properly adapt- Blac. 291. But query, whether the e) Ordin. of Rotterdam,^ Ma- Rotterdam, 2 Jfagcns, p. 102. art. gens, 101. Art. 125. 126. 127. (n) Well-wood, p. 29. Ordin. of (/) Molloy, book 2 ch. 2. sect. 7. , 2 Magent, p. 16. art. 8. Roccus, not. 66. Well-wood, tit. 9. (1) Admitting that the master should not take on board con- traband goods, without the leave of his owner, yet it may be a question how far the owner would be liable to a shipper, when contraband goods were put on board with the owner's consent, and in consequence the innocent goods of a shipper are captur- ed, detained, or condemned. In Seton v. Low, 1 John. Cas. 1, where a policy was underwritten upon all lawful goods on board 260 PART 111. CHAP. III. 4. The master must also take on board no false or colourable papers, that may subject the ship to capture of a ship, the Court held that contraband goods were lawful goods, and that the fact of such goods being the goods insured, need not be disclosed to the underwriter. Kent J. said, " that contraband goods were lawful goods, and that whatever is not prohibited to be exported by the positive law of the country, is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law, contraband trade is prohibited to neutrals,and consequently unlawful. This reasoning is not destitute offeree ; but the fact is that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the bellig- erent powers, and this it does from necessity. A neutral na- tion" has nothing to do .with the war, and is under no moral ob- ligation to abandon or abridge its trade ; and yet at the same time from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods ; and this they may do from the principle of self defence. The right of the hostile power to seize, this same very moral and correct write* continues to observe, does not destroy the right of the neutral to transport. They are rights that may at times reciprocally clash and injure each other. But this collis- ion is the effect of inevitable necessity, and the neutral has no just right to complain. A trade by a neutral in articles con- traband of war is therefore a lawful trade, though a trade from necessity, subject to inconvenience and loss." In the case a- bove stated, it maybe therefore suggested, that the owner does not impliedly warrant to the shipper an exemption from these accidents of war, or engage that the ship shall have none but innocent goods on board. The same question may be made as *.o how far a neutral owner, who transports property of abellig- DUTIES OF MASTER AND OWNERS. 26 1 or detention (q) : and he must procure and keep on board all (he papers and documents required for the manifestation and protection of the ship [ 229 ] and cargo by the law of the countries, from and (q) Guidon, chap. 5. art. 33. portation of wine from foreign Molloy, book 2. ch. 2. sect. 9. As parts, see 26 Geo. 3. c. 40. and 27 to the manifest or written contents, Geo. 3. c. 32. *. 11. A3 to the- required for the importation of cocquet and transire, required in goods into Great Britain in ships coatting trade, see 13 and 14 Car. belonging wholly or in part to 2. c. 11. and 32 Geo- 3. c. 50.* British subjects, and for the im- See as to the manifest requir- 318.; and in the consting trade, ed by the United States in cases Act of l8February,1793, sect. 14. of/o reign voyages, Act ot'2. March, 15. 16. 17. 2 U. S. L. 177 to 182- 1799, sect. 23. 24. 4. U. S. L. 316. erent in his ship, is liable to a shipper of innocent goods, which are captured and detained in consequence thereof. In Barker v. Blakes, 9 East. 283., the Court of King's Bench held that an insurance on neutral goods, on board of a ship which had enemy's property on board, was valid. The ship bound from New-York to Havre de Grace, and was captured and carried into England. Lord Ellenborough said " the Amer- ican was at liberty to pursue his commerce with France, and to be a carrier of goods for French subjects ; at the risk indeed of having his voyage interrupted by the goods being seized, or of the vessel itself, on board of which they were, being detain- ed or brought into British ports for the purpose of search ; but the mere act of carrying such enemies' goods on board his ves- sel, constituted no violation of neutrality on the part of the American; nor did the arrest and detention of his vessel for the purpose of search and eventual condemnation of the goods, which might be found belonging to the enemy, form any breach of our duty towards the American. The indemnity sought un- der this policy, is not an indemnity to an enemy or a neutral, forfeiting his neutrality by an act hostilely done by him against 262 PART III. CHAP. III. to which the ship is bound, and by the law of nations in general, and treaties between particular states. The rule of the French Ordinance on this subject is, that the master must have on board the charter-party and other documents relating to the proof of his lading (r). Valin (r) Liv. 3- tit. 1. Charte-prirties, also Pothier, Cli.-parlie,num- 31. art- 10- and Valin thereon. See the interests of Great Britain ; but an indemnity to a neutral, as such, against the consequences of an act innocently and al- lowably done by him in the exercise of his own neutral rights ; and as innocently and allowably to a certain degree, controlled and interrupted on our part, in the exercise of our rights, as belligerents against enemies^ property found onboard the ship of a neutral. These rights, though they are in a degree ad- verse to each other, do not therefore in the exercise of them, necessarily place either party in the situation of an enemy to the other." Contraband articles found on board a ship are liable to con- fiscation, but do not affect innocent goods unless belonging to the same owner. The Staadt Embden, 1. Rob. Adm. Rep. 26. And if the ship belong to the same owner, she will be liable to condemnation. The Sarah Christina, 1 Rob. Adm. Rep. 237. The Neutralitet, 3 Rob Adm. Rep. 295. But if the goods be long to a part-owner, only his share of the ship will be con- demned. The Jonge, Tobias, 1 Rob. Adm. 329. Articles of a civil or doubtful nature may, from the nature of their destina- tion, become contraband. As if they are bound to a port of naval or military equipment. The Jonge Margaretta, 1 Rob. Adm. Rep. 189. The Neptunus, 3 Rob. Adm. Rep. 80. So if a ship have contraband goods on board with false pa- pers, or false destination, the ship will be subject to condem- nation. The Franklin, 3 Rob. Adm. Rep. 2-1 7. S. P. The Ed- ward, 4 Rob. Adm. Rep. 68. DUTIES OF MASTER AND OWNERS. 263 in hi* commentary on the Ordinance, says that this ar- ticle relates chiefly to a lime of war, and that if a ship should be condemned as good prize on account of the master's failure in this respect, he must answer for the event. I have confined the rule in the manner above expressed, because it would be unjust to charge Ihe master or owners for some cases of omission, upon which ships were condemned in France during the last war, although the terms of the condemnation were such as to discharge the insurers from their responsibility, accord- ing to the established rule of the law of nations, which holds the sentence of a foreign Court to be conclusive of the fact, upon which it is founded ; and to tthich rule the Courts of Justice in this country adhered with the dignity belonging to regular and permanent estab- lishments (1). (1) It is absolutely necessary that a ship should be docu- mented according to the laws of the country to which she be- longs, according to treaties, and according to the Law of Na- tions, and that all the documents should be correctly and 1 ?gal ly framed ; otherwise the owner of the ship, and the freighter will often incur great losses. For where in an action on a poli cy of insurance a capture was made and a condemnation fol lowed, on the ground of an infraction of the Treaty between the United States of America and France, in not being docu- mented according to that Treaty, the Court held the sentence conclusive against the warranty of the neutrality of the ship. Baring & others v. The Royal Exchange Assurance Company, 5 East. 99. See also the same point, Baring and others v. Clag- gett, 3 BOS.& Pull. 201, and Lothian & others v. Henderson 6 others, 3 Bos. Si Pull. 499. 264 PART III. CHAP. III. Where by the (erraa of a charter-party a number of days is appointed for the lading of (he cargo, either gen- erally and without payment on that particular [230] account by the merchant, or by way of demur- rage, the master must not sail before the expi- ration of the time (1). 5. SECONDLY, as to the commencement of the voy- age. All things being thus prepared for the commence- ment of the voyage, the master must forthwith obtain the necessary clearances, or permission to sail, from the officers of the customs, or others, appointed for the dis- So in an action on a policy of insurance, it was decided that the plaintiff could not recover, it appearing that the ship was condemned for not having a passport required by the Treaty between the United States and France of February, 1 778. That treaty required that the vessels of the allies should be furnished with a passport expressing, inter alia, the place of hab- itation of the Commander of the vessel, which, the Court were of opinion, was not complied with by a passport granting leave to" G. G. D., commander of the ship, called the Mount Ver- non, of the town of Philadelphia, of the burthen of, &c." such description of place being applicable to the ship, as the last an- tecedent, and not to the commander. Baring & others v. Chris- tie, 5 East. Rep. 398. See also to the same purpose, Silva v. Low, 1 John. Cas-. 184., andGoixv. Low, 1 John. Cas. 341. (1) But it seems he is not bound to wait beyond the time for a cargo, because the owner will not be entitled to demur- rage unless specially stipulated. Robertson v. Bethune. 3 John. Rep. 342. DUTIES OF MASTER AND OWNERS. 265 charge of vessels, and pay (s) the necessary port and other charges for that purpose, and commence his voy- age without delay, as soon as the weather is favoura- ble (7). But he must on no account sail out during tempestuous weather (?/). By most of the ancient ma- rine ordinances, the master is required before he hoists sail to consult his mate, pilot, and others of the crew, as to the wind and weather (x), but I apprehend such con- sultation is not required by the law of England, accord- ing to which the entire management of the ship is in- trusted to the master. 6. If there has been an undertaking or war- ranty fo sail with convoy (i/), the vessel must [231 ] repair to the place of rendezvous for that pur- (s) Guidon, ch. 5. art. 33 Molloy, book 2. ch. 2. sect. 9. Ante, 167. (t) Ante, ch. 1. of this part.sect. 12. Ordin. of Rotterdam, 2 Ma- gens, p. 102. art. 128. The Ordin. of the Hanse Towns allows two or three days. (u) Molloy t book 2. ch. 2. sect. 4. Kocrus, not 56. (;r) Well-wood, tit. 8. p. 26. Or- din. of Antwerp, 2 Magens, p. 17. art. 11. Emerigon, torn. i. p. 376. This author also observes, that, although the master is bound on this and other occasions to ask the advice of his crew, yet he is not bound to submit blindly to it, if it is bad, or if under the circum- stances it appears to be bad. (y) By stat. 38. Get. 3. chap. 76. which was made to continue in force until the signing of the pre- liminaries of peace, (of which the ratification was exchanged be- tween this country and France on the 10th of October, 1801), no ship except such us were not required to be registered, or had a license for that purpose from the Lords of the Admiralty, or persons author- 3* ized by them, or were proceeding With due diligence from their port of clearance to join convoy.or were bound to or from a port or place in Ireland, or from one port or place in Great Britain to another.or such as belonged to the East-India or Hudwns-Bay Company, might sail from any port or place without convoy ; and the master was re- quired to use his utmost endeav- our to continue with the convoy during the whole, or such part, of the voyage, as they were appoint- ed to protect hun,and not separate without leave of the commanding officer. If the master departed without convoy, or wilfully sepa- rated from them, he was to forfeit WOOL or in case any part of his cargo consisted of military or nav- al stores, 1500/. (which ho%vever might be mitigated to* a sum not less than 50/. by the Court which tried the cause), to be recovered by a common informer. And the master was to g,ve a bond before he could be allowed to clear out- wards, in the penalty of the value of the ship, which was to be for- 266 PART III. CHAP. III. pose, and (he master must put himself under the prelec- tion and control of the ships of war appointed under the authority of the government for the guard of mer- chant vessels, bound to the place of his destination. A warranty that the vessel shall sail with convoy is very common in a policy of insurance, and in that case, if it be not complied with, the insurance becomes [232] absolutely void, and the insurers are not an- swerable for a loss happening by tempest, or other accident wholly independent of the subject of the warranty, for which they would otherwise be liable. But if the warranty be made by the master or owner to the merchant, and not complied with, the master or owner may be responsible for a loss happening by tem- pest or other accident, for which otherwise the master or owner would not be liable. The merchant having trusted to this warranty of the master or owner, and in confidence of its performance made a similar warranty in his contract with the insurers, and having lost the benefit of his insurance by the breach of the warranty on the part of the master and owners, has a right to re- ceive from them the indemnity, which he has lost by their misconduct. This warranty has been so fully and ably treated by Mr. Park (s), in his valuable book on insurance, that I should forbear to enter upon it here, feited if he sailed without convoy, and upon conviction shall be fined or wilfully separated from the at the discretion of the Court in a convoy without leave of the com- sum not exceed ngSOOl and suffer mander. imprisonment for a term not ex- By 43 Geo. 3. c. 160. s. 5. the ceedmg one year. master of a vessel u..der convoy, (z) Par* on insurance, chap 18. who wilfully disobeys tlie signals The same subject is also very fully or lawful commands of the com- discussed in Mr. Serjeant Mar- mander, or deserts the convoy shaWs excellent treatise on the without notice and leave, may be Lawof Insurance, published about articled against in the Court of the same time as the irst edition Admiialty.atthesuitof theCrown, of this book. DUTIES OF MASTER AND OWNERS. did not a reference to the several decided points and authorities on the subject appear absolutely necessary in this place. The convoy must be a ship or ships of war appointed under the authority of the government, that is, immedi- ately by the government, or by the commander in chief on a particular station. The protection of a ship of war accidentally bound on (he same voy- [233] age, although discharging the office of a convoy, is not a convoy wilhin the meaning of this warranty (a). But this warranty to sail or depart with convoy, does not mean that the vessel shall depart with convoy im- medialely from the lading port, but only from the place of rendezvous appointed for vessels bound from that port. From many ports, and among others from the port of London, no convoy ever sails. It has therefore been held sufficient fur a vessel bound from London to sail with convoy from the Downs (6) ; and even from Spithead, when there was no convoy appointed at the Downs (c). Neither does it require the vessel to sail with convoy bound to the precise place of her destination. But if the vessel sail with the only convoy appointed for vessels going to the place of her destination, it is sufficient. Thus where a policy had been effected on goods on board a ship called the Little Betsey, on a voyage at and from London to Saint Sebastian in Spain, warranted to depart with convoy for Ihe voyage, and at the trial of an action brought against the underwriters it appeared that no convoy was appointed directly to Saint Sebastian, but (a) Hlbbert v.Pigoit Park on la- (c) Gordon v. Morley, 2 Stra- surance, chap. 18. p 339. 1265. (6) Lethulier's case, 2 Salk. 443. 268 PART HI. CHAP. III. that the Little Betsey sailed under convoy of a squad- ron of frigates, the commander of which bad [234] orders from the Admiralty to take with him the Weasle and another frigate and proceed to Gibraltar, and to take with him such ships as should be at Spithead bound to Bilbon (which is very near and in the course to Saint Sebastian), and to detach the Weasle with the latter with orders to see them safe to Bilbao ; and on the voyage the commodore made a signal for the IVeasle to part company, and take with her such ships as were bound to Bilboa and Saint Sebastian, in obedience to which the Weasle parted company, and took with her the Little Betsey and other ships bound for Bilboa and Saint Sebastian, but soon after parted with them in chase of a strange ship, and did not after- wards join them ; a jury of merchants, to whom CliieJ Justice Eyre left the question, determined this to be a sailing with convoy according to the meaning of the war- ranty, and the Court of Common Pleas afterwards ap- proved of the verdict (d). In the case just quoted, the convoy under which the vessel sailed, was in effect the convoy for the whole voyage, although not intended actually for Saint Sebas- tian. It sometimes happens that the force first appoint- ed is to accompany the ships only for a part of their voyage, and 10 be succeeded by another ; at other times a small force is detached from the main body to bring them up to a particular point : if a vessel sail [235] under the protection of the force thus appointed (e), or detached (f), the warranty is satisfied. (rf) D'Eguino v. Bewickc, 2 Hen. get, ibid. Black. 551. (f)Manningv. Gist, Marshall, () Smith v. Readshaio, Park, book 1 ch. 8. sect. 4 Jiudley ri- ch. 18. p. 349. De Garay v. Clag. Duff, 2 Bos. & Pul. 111. DUTIES OF MASTER AND OWNERS, 269 But this warranty requires not only that the vessel ahail commence the voyage under the prelection of the convoy, but also that she shall continue during its course under the same prolection (g), unless prevented from so doing by tempest or other unavoidable accident, in which cases the master and owners will be excused, if the master does all that is in his power to keep the benefit of the convoy (/i). Neither is it sufficient for the master to sail in com- pany with the ships of war appointed as the convoy, but he must before the departure obtain, or at least use all due diligence to obtain, the sailing instructions and or- ders delivered out by (he commander of the convoy to the masters of the trading vessels, that are to sail under his protection. The necessity of obtaining such orders, if possible, is fully established by the two cases Webb v. Thomson (i), and Anderson v. Pitcher, in the Court of Common Pleas (k) ; in the last of which Lord Eldon observes, " It being once decided, that a convoy with- " in the terms of the policy, means a convoy appointed " by government, it seems to follow of necessity that " the ship must depart wilh sailing instructions, "if by the due diligence of the master they can [236] " be obtained. The value of a convoy appoint- " ed by government in a great measure arises from its " taking the ships under control as well as under pro- " tection. But that control does not commence until " sailing instructions have been obtained ; nor can it be "enforced otherwise than by their means. Indeed the ' reason of that rule, which requires that Ihe convoy (ff) Lilly v. E-wcr, Doug. 72. (*) Webb v. Thomson, I Bos. & (h) Jeffrey v. Legendra, Carth. Pull. 5. 216. 3 Lev. J20. (fc) Anderson v. Pitctter & Wife, 2 Bos. & Pall. 164. PART III. CHAP. HI. ** should be appointed by government, shews (he ne- " cessity of having sailing instructions; since without " them the ship docs not stand in that relation, or under " those circumstances, in which she can take the full " benefit of Ibe government convoy. If the fleet be rt dispersed by a storm, how is she to learn the place of " rendezvous? If it be attacked by the enemy, how is "she to obey signals? In short, what communication " can the protected hare with the protecting force ? It " has been contended, that if she be under the protection " of the guns, it is sufficient. But will it be contended " that, provided she be under the protection of the guns " at her departure, though sailing instructions be never '* obtained during the voyage, or not till the last day of " the voyage, the warranty is complied with ? Either " sailing instructions are not necessary, or, if they be "necessary, they must be so at some given period, and " can only be dispensed with in some particular cases. " Then can any other period be assigned but the begin- " ning of the voyage ?" Each of these two cases arose from the loss [23r ] of the same vessel, the Golden Grove, which had been insured at and from London to the Wesi- Indies, with leave to go to the place of rendezvous to join convoy, and warranted lo sail from thence with convoy for the voyage ; and in the last of them, in which the facts are most fully stated, it appeared that the ship arrived at Spithead about nine o'clock in the morning of the 15th November 1795 ; that she came round under (he care of the first mate, the captain himself being on shore at Portsmouth; that on the preceding day (Ibe 14th) sailing instructions were delivered at Portsmouth to all such ships, as applied regularly for them ; and DUTIES OF MASTER AND OWNERS, 27 1 that the captain of (he Golden Grove, previous to her ar- rival, made enquiry concerning sailing instructions, but found that they could not be obtained until (he ship was actually in sight ; that on the 1 5th of November, by day-light, admiral Sir H. C. Christianize commander of the convoy, got under weigh, but had not entirely quitted the roadstead until about four o'clock in the evening : and when he got under sail, he left the Tri- deni frigate to bring up such vessels as did not weigh anchor with him ; that about one. o'clock of the same day the captain of the Golden Grove repaired on board, and got under weigh, at which time the Trident had al- so got under weigh, and both the admiral's ship and the Trident had then proceeded so far, that it was clear the Golden Grove could not overtake the former soon enough for the captain to go on board that night, and it was even doubtful whether he could overtake the latter. That on the next day, between ten and twelve [238] o'clock in the forenoon, the captain of the Gold- en Grove, being only a quarter of a mile from the admi- ral's ship, went on board her, and obfained sailing in- structions : that soon afterwards the Golden Grove was lost having been from the time of her departure to that of the loss under the protection of the convoy. Upon this state of facts, it was held, that the warranty was not complied with ; for either the ship had not arrived time enough to obtain sailing instructions, or, if she had arrived time enough, her captain had not used the necessary endeavours to obtain them before she sailed. On the other hand, if the master do all in his power to obtain sailing instructions, but is prevented from ob- 272 PART. III. CHAP. IH. taining them by the badness of the weather (/) ; or if they are refused by the commander of the convoy (in) ; the warranty is complied with (n). [239] 7. THIRDLY, as to the course of the voyage. Having commenced Ins voyage, the master must proceed to the place of destination without delay and without stopping at any intermediate port, or devi- ating from the straight and shortest course, unless such stopping or deviation be necessary to repair the ship from the effects of accident or tempest, or to avoid en- emies or pirates, by whom he has good reason to sus- pect that he shall be attacked, if he proceeds in the or- dinary track, and whom he has good reason to hope that he may escape by delay or deviation ; or unless the ship sail to the places resorted to in long voyages for a supply of water or provisions by common and estab- lished usage (o). (1) And if the ship has the misfor- (0 Victorin v. Cleeve, 2 Stra. owners: and that, whenever con- 1250. The cause was tried before voy was required, the master was Chief Justice Lee at Guildhall. to bring his ship to the rendezvous (m) Veedon v. Wilmot, by Ch. Jut- and receive sailing instructions Lee, at Guildhall. Park, ch. 18. (ordres pour la route) from the p. 341. notit. commandant, and obey his orders, (n) \ very full account of the re- and not separate from him. The gulations made at different times Ordinance of Hamburgh, of the in France, on the subject of con- year 1731, tit. 4. art. 4. requires voy, is given in Falin's Commenta- the master to receive a letter of ry on the French Ordinance, torn, i, instructions from the commander p. 691. by which it appears that at of the convoy, 2 Magens, 214. particular periods merchant ships (o) Roceu* de assec. not. 52. see have been absolutely forbidden to Park on Insurance, chap. 17- of sail without convoy, under very Deviation. French Ordinance, liv. severe penalties on the master and 3. tit. 3. Dufret- art. 10. (1) As to what will amount to a ratification of a devi- ation by the master, and a waiver of the right to damag- es, on the part of the owner, see the case of Codwise v. Barker, 1 Game's New-York Rep. 526, See also Thtirston v. The Columbia l:sur. DUTIES OF MASTER AND OWNERS. 273 tune to meet with enemies or pirates, the master must perform the part of a valiant man, and make the best resistance which the comparative strength of his ship and crew will allow (p). By the treatise called the Guidon, it is declared, that if the master, by connivance with robbers, or by his entreaties, obtains from them any part of the cargo by- way of payment of his freight, he shall restore such part to the merchant receiving the freight due in respect of it. And if the robbers pay him the freight of liis ship, he shall give an account of the money paid, and the money shall be distribut d by way of general average between the goods stolen and the [240] freight of the ship (q}. I have already men- (/>) Ordinance of the ffanse- (q} Guidor, chap. 6. art. 2. p. Towns, art. 35, 36, 37. Roecus, 229, not. 70. Ante, part. 2.ch.4. sect. 10. Company, 3 Caine's New- York Rep. 89, cited ante p. 167. as to what deviation will not amount barratry. Under an authority to go from New-York to Barbadoes and a market, the master has authority to go bonafide from Island to Island in the West Indies, until he has sold the whole of his cargo. He may sell a part at one port and a part at another, until the whole is disposed of. So decided in favour of an owner on a policy of insurance, in Maxwell v. Robinson, &c. 1 John. Rep. 333. It seems that a stopping to relieve a ship in distress is not a deviation, and will not discharge an underwriter ; for if it would, no master would be justified in using an exertion to save a vessel in the most imminent danger of perishing. Per Mar- shall, C. J. in Mason v. Ship Blaireau, 2 Cranch. Rep. 257. note. 89 274 PART III. CHAP. 111. tioned the provisions of the English legislature on this subject (r). If the ship 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 without delay ; and for that purpose supply his ship with the requisite necessaries or repairs as expeditiously as he can (1). (r) Ant-, part 2. ch. 4. sect. 10. (1) In such a case it seems the ship may receive goods on board on freight, at the port of necessity, if it may be done without deviation or delay, or otherwise increasing the risk of the insurers. Therefore in Raine v. Bell, 9 East. 195. where a ship and freight were insured from her port of loading in Spain to London, with liberty to touch and stay at any port or place whatever, and the ship was obliged, in consequence of want of provisions, to put into Gibraltar, and while she lay there the master took on board some chests of dollars on freight, but the voyage appeared not to have been delayed thereby, and the ship was afterwards lost on her homeward voyage. The Court held that the trading at Gibraltar did not avoid this policy. Lord Ellenborough said, that " he reserved giving any opinion as to the operation of a change of cargo in the case of a policy on goods ; because the taking in other goods in the course of one entire voyage, where it is not provided for. may be con- tended to constitute a different adventure from that on which the ship started with her original cargo." In Stitt v. Wardell. 2 Esp. N. P. C. 610. Lord Kenyon held that under a policy 011 a ship, " with liberty to touch and stay at any port or ports without prejudice," the insured has no right to break bulk in any port, to which the ship is driven by necessity ; if he does, the policy is void. And in Sheriff v. Potts, 5 Esp. N. P. C. on DUTIES OF MASTER AND OWNERS. 27 '$ 8. If by reason of the damage done to the ship, or through want of necessary materials, she cannot be re- paired at all, or not without very great loss of lime, Ihe master is at liberty to procure another ship to transport the cargo to the place of destination (s). But if his own ship can be repaired, he is not bound to send the cargo by another, but may detain it till the repairs are made, and even hypothecate it for the expense of them : that is, supposing it not to be of a perishable nature ; if it be of such a nature, he ought either to tranship or sell it, according as the one or the other will be most beneficial to the merchant (). So if the ship has been wrecked, and the cargo saved. And if on the [241 ] high seas, the ship be in imminent danger of sinking, and another ship apparently of sufficient ability (*) Laws of Oleron, art. 4. and Lord JMansfield \nthe c&se of Luke Cleirac thereon. French Ordinance, v. Lyde, 2 Burr. 889. liv. 3. tit. 3. Fret.Siri.il. and Valin (t) See the judgment pronounc- thereon. Molloy, book. 2. chap. 4. ed by Sir W. Scott, in the case of sect. 5. Ordin.of Antwerp, "2.Mag. the GRATITUDINE, JMazzola, 3 ens, p- 14. art. 3. Ordin. of Rotter- Rob. A. R. p. 240. cited, ante, part dam,2 Magens,p. 104.art 147,148. 2. ch. 3. sect. 29. See also the judgment deliveredby a policy on a ship at and from Guernsey to Gibraltar, with lib- erty to touch and discharge goods at Lisbon,Lord Ellenborough was of opinion that this did not authorize the insured to take in cargo at Lisbon ; for the liberty was to discharge her cargo only ; and the taking in the cargo at Lisbon was a new adven- ture ; and further,that a clause in the policy to return premium if the ship sailed from Lisbon with convoy, did not help the case. But Lawrence J. in the above case, in 9 East, doubted the authority of Stitt v. Wardell. But all the Court held that nothing would justify the taking in any cargo in the course of the voyage, which would enhance the risk of the underwriter. 276 PART HI, CHAP. III. be passing by, the master may remove the cargo info such ship, and although his own ship happen to outlive the sform, and the other perish with Ihe cargo, he will nof be answerable for the loss (1). 9. Moreover the master must during the voyage take all possible care of the cargo (u), and although he is not responsible for injury done to it in consequence of a leak in the ship occasioned by tempest or other accident ; yet where rats occasioned a leak in the vessel, whereby the goods were spoiled, the master was held responsible for the damage, notwithstanding the crew afterwards by pumping, &c. did all they could to preserve the cargo from injury (v): And this determination agrees with the rule laid down by Roccus, who says, if mice eat the cargo, and thereby occasion no small injury to the mer- chant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship, () Emengon, torn, i- p. 377- (i>) Dalev. Hall, 1 Wils. 281. (1) But the master has no general authority to sell the cargo where the ship is disabled from completing her voyage. And though he obtain an order of a Vice-Admiralty Court for a sale, it will still be considered a tortious act in him. Therefore where a ship bound from Honduras to London, was captured and recaptured, and was wrecked at St. Kitts, where she was carried by the recaptors, and a sale of the cargo was directed by the Vice-Admiralty Court there on the application of the master, acting bona fide for the benefit of all concerned, but without any orders from any, the Court held the sale tortiou?, Hunter v. Prinsep, 10 East. 378. DUTIES OF MASTER AND OWNERS. 277 be shall be excused (w). This rule and the exception to it, although bearing somewhat of a [242] Imiirrous air, furnish a good illustration of the general principle, by which the master and owners are heitl responsible for every injury, that might have been prevented by human foresight or care. In conformity to which principle they are responsible for goods stolen or embezzled on board the ship by the crew or or her persons (a;), or lost or injured in consequence of the sliip sailing in fair weather against a rock or shallow known to expert mariners (y). So where in a voyage from Hull to Gainsborough a vessel was sunk in the river Trent by striking against the anchor of another, which anchor lay under water, and without a buoy, whereby some goods in the former were injured, the owners thereof were held responsible for the injury (s). 10. If the master, being compelled to take refuge in a foreign port during the course of his voyage, has oc- casion for money for the repairs of the ship, or other expense necessary to enable him to prosecute and com- plete the voyage, and cannot otherwise conveniently ob- tain it, he may either hypothecate the whole cargo or sell a part of it for this purpose (a) ; in the latter case, if the ship reach the place of destination, the mer- chant will be entitled to receive the clear [243] value, for which the goods might have been sold (w) Roccvs, not-58. and see Jones (#) Emerigon, torn. 1. p. 373. on Bailments, p. 105. This rule is Hoccus, not. 55. pout, 256. sect. 6. laid down in the Consolato del mare, (z) Proprietors of the Trent and cap. 65 and 66. and adopted by Mersey Navigation v. Wtod, East, all foreign writers on this subject. Ter. 1785. in K. B. Post, 256. sect. 5. Emerigon torn. i. p. 377, 378. (a) The GRATITTJDINE, Muz- (x) Roccus, not. 40. Well-wood, zola, 3 Rob. A.R. 240. cited ante, tit. 9. p. 30. part 2. ch. 3. sect. 29. 278 PART III. CHAP. III. at that place (6) ; if the ship afterwards perish, and reach not the destined port, the Ordinance of Wisbuy expressly declares that the money raised by this sale shall be paid to the merchant by the master (c) ; and Chirac, Kurick, Valin, and Pothier, agree in opinion that the money is in such a case due not only from the mas- ter, but also from the owners, because it was expended for a purpose, of which they were at all events liable to sustain the charge. But none of the other Ordinances contain such a provision ; and Emerigon contends on the authority of the Consolato del mare, and of the Or- dinances of Oleron and Antwerp, that the money is only payable in case of the safe arrival of the ship ; which was the opinion also of several persons, whom Pulhier consulted. And this doctrine seems the most reason- able, as the merchant is not thereby placed in a worse situation than if his goods bad not been sold, but had remained on board the ship. I cannot Gnd that the question ever arose in this country (1). (6) Alert & others, v. Tobin & thereon. Pothier, Ch. Part ie, num. other* at Guildhall, October 30, 33.34. See also JWolloy,bonk. S.chap. 1802. Before Lord Ellenborough, 2. sect. 14. And Ordm. of Rotter. Ch. J. and a special jury. Laws dam, art. 133, 134, 135. 1.Magent. of Ofc>ro7i,art.22.Ordin.of Wisbuy, 102, 103. art. 35. 45. 69. French Ordinance, (c) Art. 68. See Emerigon, torn. liv. 2. tit. 1. tlu Ccpitaine, art. 19. 2. p445. where the several author - liv. 3. tit. 3. Fret. art. 14. and Valin ities here referred to are cited. (1) In case of a capture during the voyage, the duty of the master does not cease. He ought to contribute his exertions to rescue the property from condemnation, by interposing a claim and exhibiting in support of it, the documents with which he has been furnished, for the protection of the cargo. If by negligence in the performance of this duty the proprietor of the goods sustain damage, the master is and ought to be responsible DUTIES OF MASTER AND OWNERS. 279 11. LASTLY, As to the completion of the voyage. When the ship has arrived at the place of her destination, the master must take care that she be [244] safely moored or anchored (d), and without delay deliver the cargo to the merchant or his consignees (e), upon production of the bills of lading and payment of the freight and other charges due in respect of it: and if by the terms of the charter-party, a particular num- ber of days is stipulated for the delivery, either generally or by way of demurrage, he must wait the appointed time for that purpose. These charges are in ordinary cases primage, and the usual pelty average, as expressed () Dunnage v. Jalliffe, before Lord Kenyan, Ch. J. at Guildhall. Sit. p Mich, T. 1789. (1) If the goods are on the arrival of the ship put on board of a lighter hired in the usual way, and the owner of them takes the custody of them before they are landed, the master is discharged. Therefore in an action on a policy of insurance, on a cargo of fish until safely landed, where it appeared that on the arrival of the ship at London, the goods insured were put on board a lighter hired in the usual way, and brought in the afternoon to a wharf belonging to the plaintiff, but in con- sequence of the roughness of the weather, could not be landed that evening, and the plaintiff told the lighterman that he need not stay to see the goods landed, for he, the plaintiff, would look to the landing himself; accordingly the lighterman left the cargo along side the wharf, and in the course of the night the lighter sunk without any neglect in any one ; the Court held that the plaintiff had taken the goods into his possession, and was not entitled to recover. Strong v. Natally, 1 New Rep. 16. CAUSES, WHICH EXCUSE THE MASTER, &c. 287 CHAPTER THE FOURTH. OF THE CAUSES, WHICH EXCUSE THK MASTER J1JVD OWNERS. 1. IT has been already intimated () that a carrier is in general excused for a non-performance of the con- tract on his part, occasioned by any event fal- ling within the meaning of the expression act of [ 249 ] God and the King's enemies. The expression act of God denotes naiural accidents, such as lightning, earthquake, and tempest; and not accidents arising from the fault or negligence of man (fc) ; for which it has been already shewn that the master and owners, like other common carriers, are sometimes answerable, although no actual blame may be imputable to them ; for in consider- ing whether they, or other carriers, are chargeable for any particular loss, the question is, not whether the loss happened by reason of the negligence of the persons em- ployed in the conveyance of the goods, but whether it was occasioned by any of those causes, which either ac- cording to the general rules of law, or the particular contract of the parties, afford an excuse for the non-per- formance of the contract. (a) In the preceding chapter, enemies, the perils of the sea, or the sect. 2. act nf God. In the preamble to the statute, (b) 'i'rent & Mersey Navigation 26 Geo. 3. c. 86. the cases, in winch Company v. Wood, East. Term, 23 the master and owners are exempt- Geo. 3. in K, B. Forward v. Pil- ed from repunsihi.ity, are expies- tard, 1 Ter. Rep. K. B. 27. sed to be accidents by the King't 288 PART III. CHAP. IV. CAUSES, WHICH Thus in an action (c) broughl against the master of a vessel navigating the rivers Ouse and Humber [250] from Selby to Hull, by a person whose goods had been wet and spoiled ; at the trial whereof it appeared in evidence, that at the entrance of the harbour at Hull there was a bank, on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfortune in question, so that it had become perfectly steep instead of shelving towards the river ; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was suffered to float in the riv- (c) Smith . Shepherd. This cause was first tried at the summer assizes for Yorkshire, 1795, and the plaintiff non-suited; the judge being of opinion that no case of negligence was proved. The non- suit was set aside by the court of King's Bench, and a new trial granted, that the facts might be more fully inquired into. It was tried &stcond time at the lent as- sizes following. The account in the text is of the evidence given at the second trial, which differed in some particulars from that given at the frst trial. In Easter term follow- ing, a new trial was moved fbr,but a rule to shew cause refused. Several ship owners, being great- ly alarmed at the decision of this cause, petitioned Parliament for an alteration of the law on this sub- ject : and a bill passed the House of Commons, enacting that no owner or master of any ships or vessels, employed in the navigation of the high seas, should be subject to an- swer for any loss or damage, which should happen to any goods on board by any accident whatever, unless the same should happen or arise " by or through the robbery, " embezzlement, secreting, or ma- " king away with,or by or through " the actual default, of the said owner or owners, master, mari- " ners, or other person or persons " employed in and on board of such " ships or vessels ; any law, usage, " or custom to the contrary there- " of in anywise notwithstanding." And that no owner or master of any ship or vessel employed in the navi- gation of the tide-way of any river, and not employed in the navigation of the high seas.should be subject to answer for any loss or damage which should " happen or arise at " or below any port or place in " such tideway, where ships or " vessels employed in the coasting " trade, do or shall load or dis- " charge by entry or sufferance ;" to any goods on board, unless such loss or damage should happen or arise in the ways before-mentioned with respect to ships navigating the high seas. But this Bill v, - as rejected by the House of Lords. This led to the alteration of the bill of lading mentioned before, part iii.chap. 2. sect. 3. and, I pre- sume, also to the notice mentioned to have been given in the case of Ellis v. Turner another, part ii. chap. 2. sect. 6. EXCUSE THE MASTER AND OWNERS. 289 er tied (o some part of the vessel : and that the defend- ant upon sailing into the harbour struck against the mast, which, not giving way, forced the defendant's vessel towards the bank, where she struck and would have remained safe, had the bank been in [251 ] its former situation, but on the tide ebbing her stern sunk into the water, and the goods were spoiled ; upon which the defendant tendered evidence to shew that there bad been no actual negligence : Mr. Justice Heath, before whom the cause was tried, rejected the evidence ; and he further ruled that the act of God, which could excuse the det'endant, must be immediate ,* but that this was too remote ; and directed the jury to find their verdict for the plaintiff; and they accordingly did so. The case was afterwards submitted to the con- sideration of the Court of King's Bench, who approved of (he direction given by the learned judge at the trial, and the plaintiff succeeded in the cause. There does not appear to have existed in this case any bill of lading or other instrument of contract ; and the question therefore depended upon general principles, and not upon Ihe meaning of any particular words, or exception. The only exception for nerly made in the common bill of lading was of Ihe perils of the seu y which words certainly denote the natural accidenls peculiar to that element, and in no more than one instance have been held to extend to an event not attributable to natural causes. The several words lately introduced into Ihe exception of the bill of lading (tf) have not hitherto fur- nished matter for any judicial determination. In the (d) See ch. 2. of this part, sect. 3. 41 290 PART Hf. CHAP. IV. CAUSES, WHICH present chapter therefore I shall first consider [252] the meaning of this extensive phrase, perils of the sea, and then proceed to mention other ex- cuses, which the wisdom of the legislature has introdu- ced in very late times. 2. In considering this subject, the first question that presents itself to the mind of an English Lawyer, is, how is the question of peril of the sea to be decided ? The particular manner in which a In.,* happens, must always be a question of fact, but admitting it to have happened in a particular manner, is the Judge, before whom a cause is tried, to pronounce whether that man- ner be a peril of the sea, or are the jury to declare il by their verdict ? In general the construction of ambigu- ous expressions in written instruments is the proper province of the Judge; but in mercantile instruments it often happens that the Judge must have recourse to the usage of trade, and the practice among merchants, to obtain a prefer knowledge of the meaning of the words. When the meaning of the words is ascertained, it will rarely happen that the Judge and jury can differ in the conclusion ; and probably this question, although it might afford matter of speculation, will never become a subject of serious practical inquiry. A very remarkable case to this purpose happened about the end of the reign of Charles the First. To an action of covenant on a charter-party, which contained an exception of the perils of the sea, the defend- [253] ant pleaded that the ship was taken by hostile persons unknown, armed in a warlike manner; and thereupon the question whether such a capture were within the exception, was brought before the court by a demurrer in the most strict technical form ; the Court EXCUSE THE MASTER AND OWNERS. 291 however took the opinion of several merchants by cer- tificate in writing, and afterwards by examination in open Court, upon the meaning of the words of this ex- ception as established by usage among them, and de- cided in conformity to such opinion fe). At (he trial of a cause before Lord Kenyan, the late Chief Justice of the King's Bench, in an action upon the case brought by a merchant against the owner of a ship for not safely conveying goods, where the whole matter was left open for discussion by a plea of the gen- eral issue, this question was proposed to be agitated by the counsel. His lordship however, without hesitation, declared his opinion to he, that the question was purely a matter of fact for the consideration of the jury; upon the particular circumstances of the rase the jury and his lordship coincided, and therefore the case afforded no opportunity of a more solemn discussion of the ques- tion (/). These cases certainly furnish very strong authority to shew, that even if the decision of this question doei strictly and properly belong to the Judge, yet his de- cision will be guided by usage and the course of practice among merchants, which are matters of [254] evidence and of fact. 3. In the case of Pickering v. Barclay, which I have just before alluded to (g-), the ship had been overpow- ered and plundered on the high seas by pirates, and the question was, whether the owners were answerable for the goods ; and it was determined in the manner before (e) Pickering v. Barclay, 2 Roll. (/) Bullor v.Fisher,Sitp.Mlc\\. Ab. 248. and Style, 132. The case Ter. 40 Geo. 3. at Guildhall, was argued by T-wisden for the (g) Pickering v. Barclay, ante* plaintiff, and Hale for the defend- page 253. ant. PART III. CHAP. IV. CAUSES, WHICH mentioned, that they were not answerable, " because,' 1 says the reporter, *' the taking by pirates was accounted "a peril of the sea." The same question received a similar decision not long afterwards in another cause (/t). These determinations agree with the rule of the civil law (i) : And in the case cited in the preceding chap- ter (fc), in which the owners were held responsible for goods taken by robbery from the ship in the river Thames within the body of a county, Chief Justice Halt took notice of this doctrine, and said, " by the Civil " Admiral law the owners are not responsible for a ** robbery by pirates at sea." This however is to be understood only in case the ship does not fall into the hands of pirates by any negligence or fault of the master (/). [255] 4. In a case, which came before the Court of King's Bench, a short time before the late al- teration of the bill of lading, and which was an action brought to recover the value of goods, for which the master had signed a bill of lading, containing an excep- tion only of the perils of the sen, alihouj.h made, during the time of a war, and which goods were lost in conse- quence of the ship being designedly struck by the vessel of an enemy ; it was doubted by the Court, whether a loss so occasioned were within the meaning of this ex- ception, and the cause never proceeded to a final judge- ment (). The express exception in this case afforded >. Wallifo^d. Comb.56. i m) Sever v. Tmlintnn, East .T. (i) Dig 4. 9. 3 1 Inde Labeo 36 Gee. 3. The case came before cribit, si quid naufragio aut per the Court on a motion for a new vim piratarum pe icrit, non esse trial ; the Court d rected a new iniquum excepiionem ei dari. trial in order that the facts might (k) JWortc v. Slue 1 Vent. 190. be put upon the record, but it ante, ch. 3. ot this part, sect. 3. never came on again. (J) Emtrigon, torn. 1. p. 532. EXCUSE THE MASTER AND OWNERS. 293 room fo contend, (hat the exception of the act of the Kind's enemies, which arises out of general rules of law, was meant to be excluded in the particular instance. 5 In the other case just before mentioned (n), the ship in which (he goods were conveyed, was run down in day-light, and not in a tempest, by one of two other ships, that were sailing in an opposite direction to her, both of which kept to windward, as did also the defend- ant's ship, but it was matter of so much doubt, whether the master of the defendant's ship, ought to have under- stood the course which (he others would pursue, and have borne to leeward to avoid them, that no blame was considered to be imputable to him [256] for not having done so, nor was any fault at- tributable !o the persons, who had the conduct of either of the other ships. This loss was therefore held to fall within the meaning of this exception, and to have hap- pened by a peril of the sea. It may be proper to point out (he distinction between this case and the case of (he vessel, that struck against 7 C5 (he. anchor of another, to which there was no buoy; which I have mentioned in (he preceding chapler (o) In this case (here was no fault or negligence in the per- sons belonging (o either vessel ; in the other, both par- lies were held (o have been guilty of negligence, the one in leaving his anchor without a buoy, (he other in not avoiding it, as when he saw (he vessel in (he river, he must have known I hat there was an anchor near a? band ; or if it be taken that negligence was impiiiable only to the master, who had left his anchor without a buoy, then he was answerable over to the master and owners of the vessel, whose cargo had been injured: (n) Bulkr^v. JFforr,ante, p. 253. (o) Sect. 9. p. 242. 294 PART III. CHAP. IV CAUSES, WHICH and indeed the accident happened in the course of a navigation, to which the exception of the perils of the sea dkl not apply. 6. But not every loss proceeding directly from natur- al causes, is to be considered as happening by [257 ] a peril of the sea. If a ship perish in conse- quence of striking against a rock or shallow, the circumstances, under which the event takes place, must be ascertained in order to decide, whether i! happen by a peril of the sea or by the fault of the master. If the situation of the rock or shallow is generally known, and the ship not forced upon it by adverse winds or tempest, the loss is to be imputed to the fault of the master. On the other hand, if a ship is forced upon such a rock or shallow, by adverse winds or tempest, or if the shallow was occasioned by a sudden and recent collection of sand in a place, where ships could before sail in safety ; the loss is to be attributed to the act of God or the perils of the sea (p). In the case mentioned in the beginning of this chapter (q) Lord Kenyon observed, that if an earth- quake had removed the bank at the time of the accident, the master would have been excused (1). 7. If a vessel, reasonably sufficient for the voyage, be lost by a peril of the sea, the merchant cannot charge the owners by shewing that a stouter ship would have (p) Roccus, not. 55. Strac. de (g~) Smith v. Shepherd, ante, nautis, part 3. num. 32. page 249. (1) Where a ship's bottom is injured by worms in the course of the voyage, so that in consequence thereof she is incapable of completing the voyage, and is condemned, it has been held that the loss is not a loss " by perils of the seas." Rohl. v. Parr, 1 Esp. N. P. C. 444. EXCUSE THE MASTER AND OWNERS. 295 outlived the peril ; this was decided in the case of a hoy driven by a sudden gust of wind against the pier of a bridge, through which it attempted to pass, and thereby sunk in consequence of a shock, that a stronger vessel might have sustained without sink- [258] ing (r). 8. From the preceding observations and authorities it will be obvious that neither the master nor owners can be answerable for a loss happening to the cargo by lightning. Yet upon the principle, upon which the de- cisions are founded, they must be answerable for a loss by fire proceeding from any other cause, whether origi- nally commencing in their own ship, or communicated to it from another. And in the case of an inland car- rier (s), this point has been solemnly decided, and the law remains unaltered (/). But by a statute made in the very same year in which the point was first decided, it is enacted, " That no owner or owners of any ship or " vessel shall be subject or liable to answer for, or make " good, to any one or more person or persons, any loss " or damage, which may happen to any goods " on merchandize whatsoever, which from and [259] " after \hefirst day of September, 1786, shall be "shipped, taken in, or put on board any suci ship or (r) Ernies v. Stevens, 1 Stra. 128. Mersey Nav. Comp. 5 Ter. Rep. K. Evil. Nisi Pri. p. 69. B. p. 389. But a -warehouseman is () Forward v. Pittard, 1 Ter. not answerable for a loss by fire. Rep. K. B. p. 27. Gar side, v. Trent & Mersey" Nav. It is remarkable, that no author- Comp. 4 Ter. Rep. K. B. 581. Nor ity, either in the law of England, is the hirer of goods answerable ; or in the civil law, is cited upon the per Lord Kenyon, Ch. J. Sit. at point of this cause, although the West. p. E. T. 1790. Longman v. case was very ably argued, and the Galini, in the case of musical in- Court took time for consideration struments hired to be used at the before judgment was pronounced. Opera House, and destroyed by (f) Hyde 3 anothtr v. Trent- &? fire there. 296 PART HI. CHAP. IV*-CAUSE9, WHICH " vessel, by reason or means of any fire happening to '* or on board the said ship or vessel." (u) In this clause (hemns/cr is not mentioned ; and there- fore it may be doubtful whether his responsibility is in this case removed by the statute : but the insertion of the word fire in the modern bill of lading has certainly removed it. 9. By another section of the same statute reciting, " that disputes may arise, whether the owners or mas- ** lers of ships are liable to answer or make good the " value or amount of any gold, silver, diamonds, wafch- *' es, jewels, or precious stone*, which may be lost after " thesame,bave been put on board their ships on freight, * without the shippers thereof declaring at the time the " value of such goods" It is enacted, " That no mas- " ter, owner, or owners, of any ship or vessel shall be " subject or liable to answer for or make good, to any 44 one or more person or persons, any loss or damage, *' which may happen to any gold, silver, diamonds, " watches, jewels, or precious stones, which from and " after the passing of this act, shall be shipped, taken " in, or put on board any such ship or vessel, by reason " or means of any robbery, embezzlement, making "away frith, or secreting (hereof, unless the owner or " shipper thereof shall, at the time of shipping [260] " the sair.e, insert in his bill of lading, or other- " wise declare in wiiting fo the master, owner "or owners, of such ship or vrasel, the true nature, " quality, and value of such gold, silver, diamonds, " watches, jewels, or precious stones." (or) () 26 Gee. 3. c. 86. sect. 2. (x) 26 Get. 3. c. 86. tect. 3. LIMITATION OF RESPONSIBILITY. 297 CHAPTER THE FIFTH. OF THE LIMITATION OF THE RESPONSIBILITY OF THE OWNERS AMD. MASTER, 1. J.N considering the instances, in which the owners are answerable to the merchant for the loss or damage of his goods, I have hitherto forborne to mention the limits of their responsibility, and have treated them as being responsible up to the full extent of the amount of such loss or damage ; and so both by the Civil Law and by the Common Law of England they formerly were. Forallhough it was decided (a) at a time, when the ransom of ships taken by a foreign enemy was not contrary to the laws of the realm (6), that such ransom could not be made at a price exceeding the value of the ship and cargo (and the loss of the value of the cargo would fall upon the merchants) yet until the responsi- bility of the ship-owner for the loss or damage of goods was limited by statute, it was never [261] doubted but that such responsibility was co-ex- tensive with the loss, and the statutes, which have been made to narrow it, are founded upon that supposition. The ancient laws of Oleron, Wisbuy, and the Hanse- Tonins, contain no provision on this subject. Nor is any alteration of the rule of the Civil Law noticed by (a) Helley v. Grant, 6f Graham (6) 22 Geo. S. c. 25. prohibits &f another v.ffall, cited 1 Ter.Rep. ransom. K.B. 79. 42 298 PART III. CHAP. V. Roccus (c), although Pinnius, an earlier author, says, that by the law of Holland the owners are not chargea- ble beyond the value of the ship and (he things that are init(d); in conformity to which principle the French Ordinance declares, " that the owners of ships shall be " answerable for the acts of the master, but shall be dis- " charged therefrom upon relinquishing their ship and " the freight" (e). A similar provision is contained in the Ordinance of Rotterdam, made in 1721, which de- clares, " That the owners shall not be answerable for " any act of the master done without their order, any a further than their part of the ship amounts to" (/): and by other articles of the same Ordinance it appears that each part-owner is liable only for the value [ 262 ] of his own share (g 1 ). Valin, in his commenta- ry on the French Ordinance (/j), informs us that the same regulations are also established at Ham- burgh (i). 2. The earliest provision of the British legislature on this subject is a statute made a few years after the date of the Ordinance of Rotterdam, and which was passed in consequence of a petition presented to the House of Commons by several merchants and other persons own- (c)The Notabiliaof this author, pal objects of this ordinance. See who was a Neapolitan, were first s: ire book, & tit. art. 1. and Fa- published in 1655. hn's preface to that title. (d)/n Peckhim, p. 155, publish- (/) Jin. 167. 2 Magens, 107. ed in 1647, the author cites Gro- (f) Jrt, 126. 127. 2 .Mngens, tius, lib. 3. Introduc. ad Junsp. 101. 102. Bat. c. 1. and lib. 2. de jure belli (h) Tr.m. i. p. 569. et pacis, c. 11. n. 13. (i) An extract from the Ordin. (e) Liv. 2. tit. 8- de&proprietaires, of Hamburgh, dated 1731> is giv- art. 2. Tiie encouragement of ma- en in 2 Jliagens, but the articl- ritime commercc.especiallj among containing this provision is not no- the noblesse, was one of the pnnci- ticed. LIMITATION OF RESPONSIBILITY. 299 ers of ships belonging to the port of London (A:), setting forth the alarm of the petitioners at the event of a late action, in which it was determined that the owners were answerable for the value of merchandize embezzled by the master. The foundation of this limitation is men- tioned in the preamble of the statute : which states, '* That it is of the greatest consequence and importance '* to this kingdom to promote the increase of the num- " ber of ships and vessels, and to prevent any discour- " agement to merchants and others from being inlerest- " ed and concerned therein : and that it has been held, '* that in many cases owners of ships or ves- " sels are answerable tor goods and merchandize [263] " shipped or put on board the same, although " the said goods and merchandize, after the same have " been so put on board, should be made away with by " the masters or mariners of the said ships or vessels, *' without the knowledge or privity of the owner or " owners, by means whereof merchants and others are " greatly discouraged from adventuring their fortunes, " as owners of ships or vessels, which ^ ill necessarily " tend to the prejudice of the trade and navigation of " this kingdom." It is " Therefore, for ascertaining " and settling how far owners of ships and vessels shall t* be answerable for any gold, silver, diamonds, jewels, " or precious stones, or other goods or merchandizes, " which shall be made away with by the masters or " mariners, without the privity of the owners thereof," enacted, " That no person or persons, who is, are, or (fc) See Commons Journals for The bill went through both houses the year 1733, page 277, the case without a division. The clauses di- feferredto by the petition, appears rectmg 1 proportional compensation clearly to be that ot'Beucherv. Law- and relief in equity were intro- ton, cited in part 2. chap. 2. sect. 6. duced in the House of Lords. 300 PART m. CHAP V. 11 shall be owner or owners of any ship or vessel, shall " be subject or liable to answer for or make good to any " one or more person or persons, any loss or damage " by reason of any embezzlement, secreting, or making u away with by the master or mariners, or any of them, *' of any gold, silver, diamonds, jewels, precious stones, "or other goods or merchandize, which from and after " the 24th day of June, 1734, shall be shipped, taken " in, or put on board any ship or vessel, or for any act, " matter, or thing, damage or forfeiture, done, occasion- u ed, or incurred, from and after the said 24th day of "June 1T34, by the said master or mariners, [264] " or any of them, without Ihe privity and knowl- " edge of such owner or owners, further than Ihe " value of the ship or vessel, with all her appurlenance?, " and the full amount of the freight due, or to grow " due, for and during the voyage, wherein such em- " bezzlement, secreting, or making away with as afore- " said, or other malversation of the master or mariners, " shall be made, committed, or done ; any law, usage, " or custom to the contrary thereof in anywise not- " withstanding (J)." 3. And by the second section pf the same statute, if several freighters sustain losses exceeding in the whole the value of the ship and freight, they are to receive compensation thereout in proportion to their respective losses : and any one freighter, on behalf of himself and the other freighters, or any part owner, on behalf of himself and the other part-owners, may file a bill in a Court of Equity for the discovery of the total amount of the lo&ses, and of the value of the ship, and for un equal distribution and payment. (0 7 Geo- 2. c. 15. A. D. 1734. LIMITATION OF RESPONSIBILITY. oOI But by the third section, if such bill is filed by or on behalf of the part-owners, the plaintiff must make affi- davit that he does not collude with the defendants, and must offer to pay the value of the ship and freight, as the Court shall direct. 4. And by the fourth section, it is provided, declared, and enacted, " That nothing in this [ 265 ] " present -act contained shall exlend, or be con- " strued to exlend, to impeach, lessen, or discharge " any remedy, which aqjf person or persons now hath, " or shall, or may hereafter have against all, every, or " any the master and mariners of such ship or vessel, " for or in respect of any embezzlement, secreting, or " making away with any gold, silver, diamonds, jewels, " precious stones, or merchandize, shipped or loaded " on board such ship or vessel, or on account of any " fraud, abuse, or malversation of and in such master " and mariners respectively ; but that it shall and may ** be lawful to and for every person or persons so injur- " ed or damaged, to pursue and take such remedy for " the same, against the said master and mariners re- ' spectively, as he or they might have done before the " making of this act.'* 5. By this statute therefore the legal responsibility of the master is left unaltered in all the cases before enumerated, and that of the owners also in the case of a robbery committed by persons not belonging to the ship. But where a ship in the river Thames was forci- bly plundered of dollars during the night by a gang of robbers, in consequence of information given by one of the mariners of the ship, who afterwards shared the booty ; the responsibility of the owners was held not to 302 PART HI. CHAP. V. extend beyond the value of the ship and freight by vir- tue of this statute (m). 6. Immediately after the decision of this case, [266] and in consequence of the danger, to which the facts, that were disclosed in it, shewed the own- ers to be exposed, another petition was presented to the House of Commons (n) on behalf of several owners of ships belonging to London and other parts, and in com- pliance therewith, another statute was passed (o), fixing the same limits to the responsibility of the owners in the several cases mentioned in the preceding statute, and also in the case of robbery, " although the master or " mariners shall not be in anywise concerned in or privy " to such robbery, embezzlement, secreting, or making " away with." This sta-ute also contains the same pro- visions as the preceding act, for equal distribution and discovery by bill in equity, and also for remedy against the master and mariners: and (as was mentioned in the preceding chapter) has entirely taken away the respon- sibility of the owners in the case of loss or damage by fire. 7. It may be observed that in those parts of each of these statutes, which treat of the damage and responsi- bility, the words " owner or owners of any ship or vessel' are used, and not the word part-owners, although the part-owner by name is enabled to file a bill in equity on behalf of himself and all the other part-owners. And therefore it may be questioned whether if any [ 267 ] one part-owner should be privy to an act of mal-practice, and so clearly be excluded from (m) Sutton v. Mitchell, 1 Ter. also was passed without a division Rep. K. B. p. 18. in either house of parliament. (n) See Commons Journals for (o) 26 Get. 3- c. 86. tect. 1. the year 1786, page 296. This act LIMITATION OF RESPONSIBILITY. 803 the benefits of the statute, the other part-owners would be excluded also. But as the toaster is very often a part-owner, and the first statute was evidently framed to ease the owners from a part of their responsibility for his misconduct, it should seem that by his privity, they would not lose the benefit of that statute ; and as both statutes are made in pari materia, and expressed in the same terms, probably by the true construction of both, one part-owner cannot prejudice the others by his own individual misconduct. 304 PART HI. CHAP. VI. CHAPTER THE SIXTH. OF THE GENERAL DUTIES OF THE 1. A HE general duties of the merchant (those only excepted, which relate to the payment of freight and of gross average, and which will form 'he subject of distinct chapters) are comprised in a very narrow com- pass : the hirer of any thing must use ii in a lawful manner, and according to the purpose, for which it is let. The merchant must lade no prohibited or uncus- tomed goods, by which the ship may be subject- [268]ed to detention or forfeiture (a). (1) In gen- eral, even in the case of affreightment by char- ter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore (a) Roccut not. 85. Dig. 19. 2. tit. 3. fret art. 9. 61. 1. French Ordinance, liv. 3. (1) Therefore where goods were clandestinely shipped on board an American ship, bound from New-York to Scotland, which goods were prohibited by the laws of Great Britain from being imported into that country, and in consequence thereof, the ship wa< seized and the master was compelled to pay a large sum of money for her release, the Court held the action main- tainable, although it was contended on behalf of the defendant, that no country takes cognizance of the municipal laws of an- other country, and that the lading of such goods here was law- ful, and therefore the act was not tortious, but dammtrn ab- sque injitria. Smith v. Elder, 3 John. Rep. 105. GENERAL DUTIES OF MERCHANT. 306 the merchant has not the power or oportunily of de- taining the ship beyond the stipulated time, or employ- ing it i.:i any other than the stipulated service. But by the charter-parties under which ships are let to freight to the East-India Company, the command and disposal of the ship are reserved to the company, and the master, although appointed by the owners, is bound to obey the or- ders of the company at home, and of their factors and ser- vants abroad ; and i! i-s always stipulated that nothing shall be paid by the company for freight or demurrage, unless the ship returns home in safety (6). Yet in a case where the company detuned a ship so long in India, that she became unfit for the voyage home, and was disposed of there, so that by reason of the parlicular stipulation the owners could sustain no action at law upon the contract, a Court of Equity ordered the company to make a prop- er allowance for the actual and probable earnings and the value of the ship (c). So where a ship, hired by the company to be employed according to the then usual terms of their charter-parties in trade and warfare, was sent upon a service of observation and discovery to ex- plore the passage to the eastward of the Isle of Banco, and there struck on a rock, and was lost, [269] and the owners brought an action against the company for thus exposing the ship to danger in a ser- vice not warranted by the charter-party without their knowledge or consent, Lord Kenyan, before whom the cause was tried, declared himself to be of opinion that the action was proper in point of general principle, but the plaintiffs failed in their suit, because it appeared ( i) See the clauses cited in Ho- (c) Edwin & others v. East-India, tham v. East-India Company, ante, Company, 2 Vern. 210. 1. of this part, sect. 14. 43 306 PART. III. CHAP. VI. tbtt the company's intention to employ the ship in this service was before her departure from England made known to the person, who managed (he ship on behalf of the owners, and not objected to on their part (d). 2. Some of the ancient maritime codes and more modern foreign ordinances (e) have fixed the payment to be made by the merchant, who, having taken a ship to freight declines to lade her in pursuance of bis agree* merit, or who, before the commencement, or during the course of the voyage withdraws bis goods from the ship, or having hired a ship to go to a distant port and [270] engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty ; and have decided that in some instances the whole, in others a moiety of the sum, that would have become due as freight, shall be paid as a compensation to the owners. But in all these cases the law of Eng- land leaves the amount of the compensation to be ascer- tained by a jury, if the parties cannot agree about it : and a jury will form Iheir estimate upon a consideration of all the circumstances of the case, and of the real inju- ry sustained by the owners, which cannot be properly settled by positive rules. 3. We have seen by a copy of the bill of lading (/), that the master undertakes* to deliver the goods upon (rf> Lev>in & others v. Eatt-India now altered, and the ships are hir- Company, Peake's Cases at J\V ed to be employed in trade and in Priun, p. 241. It was an action up- warfare, and on any other service on the case, :md the plaintiffs were -ahatsoergr. nonsuited ; they afterwards brought (e) Ordin. of the ffanse-Tovm*, another action in the Court of Com- art. 11 French Ordinance, I iv. 3. man Pleas, which was tried before tit '5. f*et. art 3 & 6. and 8 & 9. Lord Etdoii at the Sittings after and Valin thereon. G<) Ward v. Felton, 1 East's Rep. (r) French Ordinance, liv.3.tit.3. K. n. 50~- fret. art. 14- Ordin. of H'inbuy, art. (7) Roccut, not. 89. French Or- 35. and 69. ante, par* 3. ch. 3. finance, liv. 3. tit, 3. fret. art. 13. sect. 10. PAYMENT OF FREIGHT. 319 shall be due only the freight outward, although the ship be hired out and home" (.). The commentators on this article agree that the freight outward must be paid, if the ship be freighted outward only (/) (1). 6. If in a time of war a neutral vessel, carry- ing goods belonging to the subjects of one of [279] the belligerent powers, be taken by those of the other (in which case the goods are lawful prize, but the ship is to be restored), the capior pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods jure belli; and although the whole freight has not been earned by the comple- tion of the voyage, yet, as the capior, by this act of sei- zure, has prevented its completion, his seizure shall op- erate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the payment of the full freight (). This however is to be understood of such goods only, as a neutral vessel may (0 French Ordinance, liv. 3. tit. Ch. Part ie. num. 69. 3. fret, art. 15. (w)The COPENHAGEN, Mening, (/) Valin, torn. 1. p. >S7-Pot!uer t 1 Rob. A. li. 289. (1) And where a ship arrived at the port of destination, but her cargo was prohibited from entry, the Court held, in con- formity to the doctrine of Valin and the French ordinance,that freight was earned for the outward voyage. Morgan v.The In- surance Company of N. America, 4 Ball. 455. And the court said that it was not like the case of a ship prevented from ca- tering a port in consequence of a blockade, for there the voyage is not performed, and it is impossible to say certainly that it would be safely performed, if there were no blockade, id.ibid. And in case of blockade of the port of destination no freight would be due. Scott v. Libby, 2 John. Rep. 336. 320 PART OI. CHAP. VII. convey by the law of nations, and of a trade ordinarily allowed to the neutral nation by the government, to whose subjects the goods belong. If the goods are con- traband according (o the law of nations, such as naval stores, &c. no freight is to be paid by the captor (x) ; and thia whether the master know the qualify of the goods or no ; for in time of war he is bound to know the contents of his cargo, and cannot be permitted to aver I hat he was ignorant of them (y] ; nor is any freight to be paid by the captor, if the ship is employed in bringing the produce of the colony of a belligerent power to the mother country (s), or in the [ 280] coasting trade between one port and another of the same country (a), or in carrying the goods, even of neutrals, directly from the mother country to its colony (b), or from one hostile nation to the colony of another hostile nation in alliance with it (r), if these trades were not, in time of peace, open to the neutral nation, whose ship is so employed ; because, in all these cases, it is evident, that the trade is opened in the time of war merely for the convenience of the belligerent power, and to relieve that power from a part of the dif- ficulties occasioned by the war ; and the neutral vessel so employed, thereby furnishes direct assistance to t he- belligerent power. But as trade from a port of one na- tion to a port of another is in general open to all coun- tries, freight is to be paid to the owners of a neutral ship employed in carrying the goods of an enemy from (or) The MEHCcHirs, Meincke, 1 Rob. A. R. 296. and the MER id. L'88. CURICS there cited. (t/) The OBTER RISOER, Jur- (b ] The IMMANUEI., Egsenbcrg, genson, 4 Rob. A. R. 199. 2 Rob. A. R. 186. and the ANWE, (r) The REBECCA, Moore, 2 Lord, id. vol. 3. p. 91. note a. and Rob. A.R.101. Sec also the AMER- the NASCT, Joy, id. p. 82. ICA, Sherborne, id. vol. 3. p. 36. Cc) The ROSE, Yotuig; 2 Rob. (o) The EMASCEI., Sodsrttrom, A- K. 206. PAYMENT OF FREIGHT. 321 a port of one nation hostile to the captors, to a port of another nation equally hostile (rf). (1) Again, if a ship be taken snd retaken, and carried by the recaptors into a port short of the place of destina- tion, and the ship be there restored, before the cargo is restored, either by reason of a delay on the part of the merchant to claim the cargo, or of doubt or liti- gation upon his right to restitution, the Court [281] of Admiralty does not require the ship to wait the doubtful event of the claim of the cargo, in order to convey it to the place of destination, but gives the own- ers their whole freight, subject only to the deduction of salvage upon the amount of it (e). And this with great justice ; for the capture is not imputable to the master ; the delay of obtaining restitution of the cargo is impu- table to the merchant. If the ship of an enemy, carrying the goods of a neu- tral be taken, and the captor conduct the ship and cargo to the place of destination, and so fulfil the contract of the master, the captor is entitled to receive the freight of the goods upon their restitution (o the merchant ; but he is not entitled to this, if he take the ship to a (J) The WILHEIMINA, Carl- 5 Rob. A. R. 101. and see the sow, 2 Rob. \. R. Wl.notis. cases cited in the note at the end (e) The RACE HORSE, White, of that report. (1) These decisions of the English Admiralty Courts have grown out of the incidents of the late and present war. The correctness of the doctrines as to the colonial trade, and the dis- tinctions as to a war and a peace trade has been questioned, but I am not aware of any decisions of our own courts of law upon the subject. 45 322 PART III. CHAP. vn. different port, and do not perform the original voy- age (/) 0) (/) The FOBTCHU, 7Wi, 4 there cited. This is different from Rob. A. R. 278, and the case of the the old rule as laid clown in the VRKTHEIB , and also Bynker- Consolato del mart, ch. 173. shock, Quest. J. Pub. lib. 1. c. 13. (1) In cases of capture and condemnation of the cargo, the rate at which freight is to be allowed by the captors, is not necessarily to be taken at the price fixed in the charter-party, even where no fraud is imputed to the contract itself. When by the events of war navigation is rendered so hazardous, as to raise the price of freight to an extraordinary height,captors are not bound to that inflamed rate of freight. When no such cir- cumstance exists, when a ship is carrying on an ordinary trade, the charter-party is undoubtedly the rule of valuation unless impeached. The captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. The Twilling Riget, 5 Rob. Adm. Rep. 77. In such cases if the value of the cargo condemned is not suf- ficient to pay the freight decreed as a charge on the cargo, and the expenses of the captors, ^in ordinary circumstances the freight is entitled to the priority ; though this general rule may sometimes be varied by the peculiar nature of the trade and the situation of the trading countries. The Vrow Henrica. 4 Rob. Adm. Rep. 343. But the expenses of the neutral master, when decreed to be a charge on the cargo, are not entitled to the same priority. The Bremen Flugge, 4 Rob. Adm. Rep. 90. Though it is the allowed privilege of neutral trade to carry property of the enemy, subject to its capture and a temporary detention, and the captor takes it with the burthen of freight ; yet if the party prevaricates or conducts himself with ill faith, he is not entitled to freight. For fraud and misconduct amount to a forfeiture. The Vrow Henrica, 4 Rob. Adm. Rep. 343. PAYMENT OF FREIGHT. 323 T. As it may frequently happen that goods brought in specie to the place of destination, may be so deterio- rated during the course of the voyage, as to be of no value to the merchant, it is important to consider, whether the merchant is bound to pay ihe freight under If a ship captured be lost by the negligence of the prize masx ter, where the ship is innocently employed, and a part of the cargo only saved, which is insufficient to pay the freight, the Court will not only decree restitution of the value of the ship, but also of the full freight against the captors personally. The Der Mohr, 3 Rob. Adm. Rep. 129. 4 Rob. Aden. Rep. 314. If a ship be condemned, and the cargo acquitted as neutral property, and afterwards is carried by the captors to its port of destination, they are entitled to the freight. The Fortuna, 4 Rob. Adm. Rep. 278. 5 Rob. Adm. Rep. 67. But if the goods are not carried to their original destination,within the intention of the contracting parties, freight shall not be due or paid to the captors. This is the general rule, but it may admit of an exception. As where goods have been carried not to the port of destination, but to the country where the owner lives, and to which the proceeds were ultimately destined ; but by the reg- ulations of the country where the goods are shipped, they can- not be cleared out directly for the port of ultimate destinatioa there, as the intention of the parties is completely effected in the manner they would have elected, if at perfect liberty so to do, freight has been adjudged to the captors. The Diana, 5 Rob. Adm. Rep. 67. And if the cargo be not carried to the port of destination^ no freight is due to the captors, although the cargo has been sold very advantageously in the port of the capturing power, to which she has been conveyed. Vrow Anna Catharina, 6 Rob. Adm. Rep. 269. 324 PART III. CHAP. VII. such circumstances ; or, to slate the question more cor- rectly, whether he is bound to receive the goods [ 282 ] or is at liberty to abandon them for the freight. For we have already seen, in the case of an East-India sh\\i, that the company (the merchants) were held liable to pay the freight of a quantity of pepper delivered to, and received by them, although greatly damaged by a peril of the sea ; and that the owners were not answerable for the expense incurred in endeavouring to remove the injury occasioned by the salt water (g-). And in another case that will be mentioned hereafter, the merchant was held liable to pay the freight of to- bacco, saved from shipwreck, and accepted by him, although part was so much damaged as to be of no value (/i). Upon this question as to the right of the merchant to abandon his goods when brought to the place of destina- tion, and by so doing to discharge himself from the freight, different doctrines and opinions have prevailed, and there is no judicial decision in our books : although in some cases between the merchant and his insurer, it has been admitted that the freight was payable, notwith- standing the goods were so much damaged, that their value tell short of its amount (i). But it is necessary to distinguish the causes, from which the deterioration may have proceeded. If it have proceeded from the fauit of the master or mariners, the merchant is entitled [ 283 ] to a compensation ; and may recover it by an action at law against the owners or master; (,$) JTothaii & others v Eaft-In- chapter. riia <:omj>. Doug. 272. ante, ch. 1. (j) Boyfeld v. Brown, 1 Stra. of this ourt. sect. 14. 106o. arcl Maton v. Sfcurry, Park, (A) Liit-widge & another v. Grey 116- Marshall, 143. y titters, post. sect. 13. of this PAYMENT OF FREIGHT. 325 but, if he has received the goods, he cannot insist upon the damage as a defence to such an action brought a- gainst himself for the freight, even although he has of. fered to return them (fc). On the other hand, if it have proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of a ship ; the merchant must bear the loss, and pay the freight ; for the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event. And to this point there is a di- rect authority in the treatise called the Guidon. The author, having mentioned several cases of abandonment, as between the merchant and the insurer, goes on thus : " In like manner, the merchant cannot abandon the goods " herein before mentioned (vis. fruits, salt, corn, victuals, "&c.) to the master of the ship for his freight, if the '* deterioration has proceeded from natural decay ; or "from the great diminution of the price, thai takes place "at the end of particular seasons, as in figs, "grapes, and herrings after Easter; or by rea- [284] "son of an over-abundant supply of the market, "as in corn, wine, or salt ; although in salt a different "practice formerly prevailed, which is contrary to rea- " son, if the option has not been reserved by an express " clause in the charter-party" (/). (fc) Millet & othertv. Bainbridge derive no benefit whatever from y others, Guildhall, Deem. 20' h, the conveyance, nor would the 1804, before Lord Ellenborough, master have fulfilled his engag-e- Ch. J. His Lordship intimated that mem according to the terms of the if the merchants had refused to bill ot lading : Quxre, therefore, receive the cargo on the ground whether the master could oblige of damage so occasioned, the point the merchant to pay the freight? would admit of some doubt. In See Batten v. Butter^ 7 East. 479. such a case the merchant would (/) Gut'cfon, chap- 7- art- 1C- 326 PART III. CHAP. VH. In the very next article however of the treatise we find this doctrine : " If goods contained in casks, as "wine, oil, olives, molasses, and others of the like sort, u have leaked to such an extent, that the casks are "empty, or nearly empty, the merchant may abandon " them for the freight, before they are landed. There- "fore masters should take care when they receive casks, " to aee that they be well hooped, and in good comli- " tion. It is true, that if by tempest the casks have "been so pressed that they have thrown out their bot- " toras, have been beaten in, and burst, provided there *' have been no fault in the stowage, (he loss shall be an ' average against the insurers, the master shall lose his " freight" (m). From the words of this arlicle it appears very clearly, that, in the opinion of the author, the merchant might abandon articles of this description, although the leak- age were not occasioned by peril of the sea. In the work of Molloy (?i) however tve find the [ 285 ] following clause: "If freight be taken for 100 " tons of wine, and twenty of them leak out, " so that there is not above eight inches from the buge " upwards, yet the freight becomes due : one reason is, "because from that gage the King becomes entitled to "custom; but if they be under eight inches, by some " it is conceived to be then in the election of {he freight' " ers to fling them up to the master for freight, and the "merchant is discharged. But most conceive other- "wise; for if all had leaked out (if there was no fault "in the master), there is no reason the ship should lose () Guidon, chap. 7. art. 11. 26 and 27. Car. 2- in K. B. But I (n) Book 2. c. 4. sec*. 14. The do not find that case reported else- author cites Beyce v. Cok,Hil. Ter. where. PAYMENT OF FREIGHT. 327 " her freight, for the freight arises from the tonnage " taken ; and if the leakage was occasioned through *' storm, the same perhaps may come inlo an average. " Besides, in Bourdeaux (o), the master stows not the " goods, but the particular officers appointed for (hat " purpose, quod nola. Perhaps a special convention " may alter the case." The French Ordinance declares : " That the mer- " chant shall not oblige the master to take for his freight, " goods diminished in price, spoilt, or deteriorated, by " their own vice, or by peril of the sea (p).' r And the very next article is as follows : " if goods put inlo " casks, as wine, oil, honey, and other liquors, have il leaked out to such an extent, that the casks are empty, " or nearly empty, the merchant may abandon "them for the freight." Valin, in his com- [286] mentary on this last article, observes, that if is taken from the article of the Guidon, which I have just before quoted. He observes also that by the Consolalo del mare, chap. 202, the contrary is decided : yet that by another article of the same code, chap. 234, freight is not due for pottery, unless it be found entire at the end of the voyage () French Ordinance, liv. 3- tit. broken ; but if the master stows it, 3. fret. art. 25 & 26. he is at all events to lose the freight (g) The sense of this chapter of what is broken ; and if there appears not to be comctly stated, has been any fault in the stowage by the learned commentator : the or carriage, he must also make rule therein laid down is, that if good the damage. 328 PART HI. CHAP. VII. other hand his countryman Polhier, controverts this opinion, and contends that the article of the Ordinance is to be confined (o the case of leakage occasioned by peril of the sea; in which case he considers the real commodity, vis. the contents of the casks to be abso- lutely lost, as much as if they had been washed over- board. " This opinion of Monsieur Fri/w," says he, " appears to me to be contrary to principles. It is the " fault of the merchant, if he has put his goods in'o " bad casks: It is his fault if they have leaked out, and " have not arrived at the place of destination ; he ihere- rt fore ought to pay theiv freight ; for according " to the principles of the contract of hiring, the [287 ] ** hirer, who by his own act or fault has not en- " joyed the thing let to him, ought to pay the hire, as if " he had enjoyed it. If the letter, who has been prevent- " ed from letting to other persons the part of his vessel " occupied by the bad casks, should not be paid the 11 freight, he would suffer for the fault of the hirer ; " which is unjust (r)." This argument of Pothier may shew what ought to have been established by the Ordinance, but it by no means proves that the interpretation given by Valin and which agrees with the terms of the Guidon, is not the true interpretation. The rule was probably introduced in early times, (o prevent disputes and litigation; and adopted by the framers of the French Ordinance for the same reason (s). (r) Traite de Charle partie, num. goods are arrived at the intended 60. place, the merchant is obliged to () The Ordinance of Rotterdam pay the freight of what happens on this subject seems to agree with to be damaged or diminished with- the general rule of iheFrench Ordi- out any fault of the master or ship's nance- It declares that when the crew. Art. 155. 2 Magens, 105. PAYMENT OF FREIGHT. 329 In our West-India trade, Ihe freight of sugar and molasses is regulated by the weigh! of Ihe casks at the port of delivery here, which in fact is, in every instance less than the weight at the time of the shipment, and therefore the loss of freight occasioned by the leakage necessarily falls upon the owners of the ship by the nature of the contract (1). Upon the propriety also of the rule laid down in Ihe preceding article of this Ordinance, namely, that which prohibits abandonment generally, these [208] two learned foreigners have differed in opinion, u It must be agreed," says Valin, " that this rule is loo " rigorous to be compatible with equity. The natural " idea, that Ihe mind forms of the agreement for freight, (1) The question as to the effect of leakage occasioned by perils of the seas on freight, was discussed and settled in Frith v. Barker, 2 John. Rep. 327. One hundred and ninety hogs- heads of sugar were shipped from Surrinam to New-York, and in consequence of tempestuous weather, fifty of the hogsheads were washed out and arrived empty. Freight was claimed for these fifty hogsheads ; and the Court held that none was due. Chief Justice Kent said, I consider these hogsheads as having perished by the perils of the seas ; no freight is due for goods, which perish during the course of the voyage. And however the authorities may differ on the assumed right to abandon damaged goods in discharge of freight, yet they all agree that you may abandon casks leaked out by the perils of the seas, as the subject matter of the contract no longer exists. This opin- ion will not apply to the case of an article that is lost by other causes than the perils of the sea, such as internal decay, leakage, evaporation or the like. See post, 292. note. 3 John. Rep. 321, 46 330 PART III. CHAP. VII. " is, that it has for it* object that the goods shipped in '* pursuance of it shall be the only pledge for the freight, " and consequently that upon the same goods alone can " the payment of the freight be enforced. From whence " it follows, that in every case (en quelque cas que ce " soil) the merchant ought to be quit of the freight by " abandoning his goods. This is also the opinion of " Casa Regis, Disc. 22. n. 46. and Disc. 23. n. 86. and " 8f. In the case of shipwreck it is decided by the * c Ordinance, that the freight is not due when the goods t( are lost ; now when the goods are so injured by the " shipwreck, that he, to whom they belong, cannot de- " rive from them wherewith to pay the freight, is il not " the same to him as if they had been wholly losl by the " mere act of shipwreck? If then he had not the power " of abandoning the goods to discharge himself from " the payment of the freight, bis condition would be " worse than if all had perished without resource, and " this is what natural equity will not allow him to suffer." The learned commentator then proceeds to acquaint us, that a practice prevailed in his country, of not compelling the merchant to reclaim shipwrecked goods, and that unless he reclaimed them, the master was never [289] known to obtain the payment of the freight. On the other hand PotUier (/), speaking of this article of the Ordinance of bis country, says, " This ) The only point intended to be proposed by me as doubtful, is the right to abandon for the freight alone, at the port of destination : and in point of practice, I have been inform- ed that this right is never claimed in this country (1). (T<) Sect. 13. p. 298. (w) Bailliev. Moudiffliani, Park, chap. 2. p. 53. (1) This point has received a judicial decision in the State of New-York, in the case of Griswold v. New-York Insurance 334 PART III. CHAP. Vn. 9. Having thus considered the capes, in whicb the entire freight is to be paid according to fhe agreement, I now proceed to the consideration of those, in which apart only of the stipulated sum may be claim- [293] ed. And these are, first, when the ship has performed the whole voyage, but has brought a part only of the merchant's goods in safety to the place of destination : And, secondly, when the ship has not performed the whole voyage, but the master has de- livered the goods to the merchant, at a place short of the port of destination. In the case of a general ship, or of a ship chartered for freight to be paid according to the quantity of the goods, there can be no doubt that Company, 3 John. Rep. 321., where the court after comment- ing on the authorities cited by Abbot, held that when goods are carried to the port of destination, though spoiled so as to be of no value to the owner, the owner cannot abandon the goods tor the freight,but the master is entitled to his fullfreight. Chief Justice Kent said, "the ship-owner performs his engagement when he carries and delivers the goods. The condition which was to precede payment, is then fulfilled. The right to payment then becomes absolute, and whether we consider the spirit of this par- ticular contract, or compare it with the common law doctrine of carrying for hire, we cannot discover a principle which makes the carrier the insurer of the goods as to their soundness, any more than he is of the price in the market to which they are carried. If he has conducted himself with fidelity and vigil- ance in the course of the voyage, he has no concern with the diminution of the value. It may impair the remedy which his lien afforded, but it cannot affect his personal demand against the shipper." See also the opinion of Justice Livingston in the same case on a former trial. 1 John. Rep. 205. PAYMENT OF FREIGHT. 335 freight is due for so much as shall be delivered. The contract in these cases being distinct, or at least divisi- ble in its own nature. But suppose a ship chartered at a specific sura for the voyage, without relation to the quantity of the gorods, (in which case the contract, as observed by Lord Chancellor Hardrvicke (#), is more properly a contract for the use of the ship, than for the conveyance of the merchandize,) should lose part of her cargo by a peril of the sea, but convey the residue to the place of destination; in (his case 1 do not find any authority for apportioning the freight. And it seems to have been the opinion of Malyne (?/) that nothing would be due ; and the case of Bright v. Corvper, which will be mentioned hereafter, may be considered as an authority in support of that opinion. But probably if the question should arise again, the determination of it would depend upon the particular words of the charter- party; for without a very precise agreement for that purpose, it seems hard that the owners [294 ] should lose the whole benefit of the voyage, where the object of it has been in part performed, and DO blame is imputable to them (1). 10. The apportionment of freight usually happens, when the ship by reason of atjy disaster goes into a port (or) In the case of Paul v. Birch, part. sect. 7. 2 Atkins, 621, ante, ch. 1. of this (y)Mu',yne > Lex. Mercat*\>. 100. (1) In Post v. Robertson, 1 John. Rep. 24., the court held that where the ship is chartered for a specific sum for the voy- age, the general rule is, that if part of the cargo be lost by the perils of the sea, and part conveyed to the place of desti- nation, there can be no apportionment of the freight under the charter-party. 336 PART IH. CHAP. VII. short of the place of destination, and is unable to prose- cute and complete the voyage. In this case we have already seen that the master may, if he will and can do so, hire another ship to convey the goods, and so entitle himself to his whole freight: but if he is unable, or if be declines to do this, and the goods are there received by the merchant, the general rule of the maritime law is, that freight shall be paid according to the proportion of the voyage performed, pro raid itineris peracti (s). Some writers (a) have endeavoured to trace this rule to the Digest of Justinian, but the passages referred to by them, do not appear to contain such a regulation. The rule however is without doubt extremely ancient. It is to be found in the collection of laws called the Rhodian Lams (b), but which collection is now generally agreed to be of a later date than the time of Justinian (c) ; and also in the Consolato del mare (d). [ 295 ] The rule, as laid down in the laws of Oleron (e), is to the following effect. If a ship depart with a cargo from Bourdeaux, or other place, and it happens that the ship is disabled, and as much of the cargo is saved as possible, the merchants and master enter into a great debate, and the merchants demand to have their goods of the master, they may have them, upon paying of freight for so much of the voyage as the ship has ad- vanced rateably and in proportion, if the master pleases ; (z) The Ordinance of Rotterdam (c) Schomberifa dissertation on differs in this respect from the these laws. The only rule, that ran general rule ; for it allows the mer- be distinctly and authoritatively chant to take his goods, paying a traced to the institutions of Rhodes, reasonable portion of the freight, is the law de Jactu, quoted and in case the ship may be repaired adopted in the Dig. 14. 2. l.Seethe in a short time. art. 147. 2 .Ma- eighth chapter of this part, sect. 2. gens, 104. (d) Per Lord Mansfield in Luke (a) Roccits ot. 81. v. Lyde, 2 Burr. 889 (6) Per Lortl Mmufield in Luke (e) Art. 4. and see Ordin. of Wi*- v. Lyde, 2 Burr. 889. buy, art 16. 37. PAYMENT OF FREIGHT. 337 but if the master will, he may repair his ship, if he can do it speedily, and if not, he may hire another ship to complete the voyage, and shall have his freight of the goods to be reckoned according to thier proportion to the whole cargo: and trie goods shall pay the costs of their salvage. The rule is also to be found in Roccus (/), (who cites several more ancient authors in support of it,) and in all the subsequent writers on maritime law : and is adopted in moat of the foreign ordinances, particularly in the French Ordinance (g) ; which declares, that 11 the master shall be paid the freight of goods saved "from ship wreck, if he conveys them to the place of " destination. If he cannot find a vessel to convey the "goods saved, he shall be paid freight in pro- portion only to the voyage performed" (I). [296] 11. With regard to capture and ransom, the author of the Guidon, speaking of the case where the (f ) Loc. sup. cit- (ff) Liv. 3. tit. 3, fret. art. 21 & 22. See also art. 11. (1) In Robinson v. Marine Insurance Company, 2 John. Rep- 323., the Court said it is now too late to deny or disregard the rule that freight pro rata itinerisis due, when a ship by reason of perils goes in to a port short of her destination, and is unable to prosecute her voyage, and the goods are received by the owner at such intermediate port. The general doctrine is recog- nized in Williams v. Smith, 2 Cain. Rep. 13. United Insurance Company v. Lenox, 1 John. Cas. 377. Scott v. Libby,'2 John, Rep. 336. Dorr v. N. England Mar. Insurance Company, 4 Mass. Rep. under p. 231. Hooe v. Mason, 1 Wash. Rep. 207. Pinto v. At water, 1 Day's Rep. 193. See also Mulloy v. Bar- ker. 5 East. Rep. 316. 47 *38 PART m. CHAP. vii. goods only are taken by pirates and the ship discharged, and the goods are afterwards ransomed, says, that " If rt the master will not contribute to the ransom, he shall " lose hia whole freight ; but if he contributes, he shall "be paid freight as far as the place of the capture, as " welh in the case of affreightment by charter-party, as "otherwise: and if he furnishes another ship, to relade But if the ship by reason of the perils of the sea be compel- led after the commencement of her voyage to return to the port of lading, and the merchant there receives his goods no freight is due. Griswold v. New-York Insurance Company, 1 John. Rep. 205. S. C. 3 John. Rep. 321. And if in such case the master would entitle himself to any freight,he must either trans- port or offer to transport the goods, however damaged, to the port of destination, and if the merchant refuses, an action for damages lies, id. ibid. So if the ship be captured and recap- tured and brought back to the port or quasi port of her depar- ture, no freight pro ratals due. The Hiram, 3 Rob.Adm. Rep. 180., recognized in Scott v. Libby, 2 John. Rep. 336. See also as to the point of no freight being due when ship is aban- doned at sea, and is afterwards brought into her port of destina- tion. Dunnell v./Tomhagen, 3 John. Rep. 154. See also Lid- dard v. Lopes, 10 East. 526. cited post, p. 322. In case of a freight earned pro raJa, the best rule to ascertain the amount is to consider what portion of the voyage has been performed, not when the ship 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 voy- age performed, as it respects the interest of the shipper. So held in Marine Insurance Company v. Lenox, cited in 2 John. Rep. 326. But if that does not appear, the rule adopted in Luke v. Lyde, by Lord Mansfield is the general guide. Rob- itson v. Marine Insurance Company, 2 John. Rep. 323. PAYMENT OF FREIGHT. 389 " the goods, he shall be paid his whole freight" (ft). Upon this subject the French Ordinance provides, tf that if the ship and goods are ransomed, the master " shall be paid his freight as far as the place of capture, " even his whole freight, if he conveys the goods to the " place of destination, he contributing to the ransom" (i). Although ransom is now prohibited by the law of Eng* land, yet this doctrine may apply to the case of capture and recapture : and accordingly in an action brought by a seaman for his wages, in the case of a ship taken and retaken, and which reached the port of destination (fr), Lord Eldon, before whom the cause was tried, held that the wages were payable, because, said his Lord- ship, "the ship on her arrival was entitled to [297] "freight" (/). 12. Upon this subject of the apportionment of freight, Malyne says, " If the ship in her voyage become un- " able without the master's fault, or that the master or " ship be arrested by some authority of magistrates in " her way, the master may either mend his ship, or " freight another. But in case the merchant agree not " thereunto, then the master shall at least recover his " freight, so far as he hath deserved it" (m.). The same author also mentions the following case : A mer- chant took a ship to freight, and put in the master and mariners, and victualled the ship at his own expense, and by a charter-party engaged to pay the owner for the use of the ship and furniture 20/. every month at her return into the river Thames. The merchant laded (A) Guidon, Chap. 6. art- 7. (0 See before sect. 1- of this (0 Liv. 3. tit. 3. fret, art- 19. chapter. (k) Bergttrom v. Mitls, West. (m) Malyne, p. 98. and post, 314. Sit. in Mich. Term, 40 Gee. 3. 3 sect- 19. Espin. N. P. cases, p- 36, PART. III. CHAP. VII. the ship for the Streightx, and to go from port to port and to several places with merchandize ; and after about two years, the ship, having taken in a cargo at Barbary, was, on her return to London, cast away by tempest near Dover; and the goods were saved ; the merchant refused to pay the freight, because the ship did not arrive in the river Thames, according to the words of the charter-party : " Herein," says the author, (( the owner was much wronged, for the money is due " monthly, and the place was named only to signify the " time, when the money was due to be paid ;" [ 298 ] but he does not inform us whether the question was ever brought before a court of justice, or whether or no the merchant finally paid any part of the freight (). 13. Upon this subject, I have been able to collect on- ly the following decisions. Lntrvidge, the owner of a ship called the Whnrton of Whitehaven, let his ship by a charter-party to Archibald Grey and others, merchants at Glascon, for a voyage from Glascow to Maryland or Virginia, and back from thence to Glascow, and was to receive freight from them for the homeward cargo only, at the rate of 8/. 12s. per ton of tobacco, computing four hogsheads to the ton ; one half to be paid im- mediately after the ship's discharge at Glascow, and the other half within six months after such discharge. The ship sailed to Virginia, and there delivered her outward cargo, and took on board from the merchant's factor a cargo of tobacco consisting of 199 hogsheads, part of which was their property, the residue belonged to other persons, and was put on board by the factor to complete (n) Malyne, p. 101. PAYMENT OF FREIGHT. (he lading, in pursuance of directions given to him for that purpose by his principals, in case the outward car- go should not enable him to purchase a full lading on their account. Grey and Co. insured their part of the cargo with persons living at Bristol, the other part wa not insured. On the return homeward, the ship w^s unfortunately cast away at Youghall in [299} Ireland, which is within a very short distance of Glascorv, and part of the cargo to the amount of 163 hogsheads was saved by the assistance of the officers of the customs at Youghall, and deposited in the custom- house there. Lutrvidge the owner, as soon as he knew of the misfortune, informed Grey & Co. of it, and told them he should provide another ship to transport the tobacco which was saved. Grey & Co. abandoned their part of the cargo to their insurers, and indorsed over the bills of lading to them. Lutrvidge prorided another ship at Youghall, but the insurers took tbs part of the cargo abandoned to them, and conveyed it to Bristol. The agent of the proprietors of the other part of the cargo was willing to have laded it on board the ship thus provided, if the master thereof would sign bills of lading to deliver it at Glascow in conformity with the original charter-party ; but the master refused to give such bills of lading, or to oblige himself to de- liver it at Glascow, offering only to give receipts oblig- ing himself to deliver it in Great Britain. And the agent suspecting that he meant to take it to Wltitehaven, and not to Glascorv, refused to deliver it to him upon those terms, and sent it by another vessel to Glascow, where several hogsheads were found so much damaged, that they were not entered at the custom-house, but burned at the king's scales there. Lnltvidge brought 342 PART in. CHAP. VH. an action against Grey & others, for his freight accord- ing io the charter-party, in the Court of Admi- [300] rally in Scotland. On their part it was insist, ed, that the contract of affreightment was dis- solved by the shipwreck, and that there remained only a demand in equity for freight; that the demand could not be made against them, who bad not taken the goods into their possession, but must be made, for part against the insurers at Bristol, and for the residue against the proprietors of that residue ; (hat Ibis demand could only be in proportion to the value of the goods saved, after deduction of salvage and charges : and that at all events it could only be for the proportion of the voyage to Youghall, because the master of the ship refused to sign bills of lading, and engage to deliver the tobacco at Glascorv. The Judge of the Court of Admiralty de- creed, that the full freight was due from Grey & Co. for the part of (he cargo saved, but none for the part lost, and that toe full freight was due, although the goods were not carried to Glascow, because Lutrvidge bad another ship ready to transport them thither, and there was no occasion for any new bills of lading, while the former bills of lading subsisted. From this judg- ment, Grey & Co. appealed to the Lords of Session in Scotland, who by their interlocutor decreed, " That the " contract of affreightment was dissolved by the total " loss of the ship, albeit some of the shipwreck goods " were saved out of the shipwreck ; and found that the " freighters indorsing the bills of lading to the insurers " did not subject the freighters to any freight for the " goods recovered by the insurers, but found the [301 ] " merchants liable to the freight pro raid itineris " of such of the goods as were brought to Gf/as- PAYMENT OF FREIGHT. 343 " cow, notwithstanding some of the tobacco was found " damnified, and burned there." This decree or inter- locutor was, upon the petition of Lutwidge, reviewed by the Lords of Session, but affirmed by them. Hereupon Lutrvidge appealed to the highest tribunal of the coun- try, the British House of Lords : the House of Lords '* Reversed the decree or interlocutor of the Lords of " Session, complained of by the appellant, and the affmn- " ance of that interlocutor; and declared, that the res- '' pendents, Grey & others, were liable for the full " freight of such of the goods as were given up to the u insurers, and for the freight pro ratd itineris of such u of the goods as were brought to Glascow, notwith- " standing some of the tobacco were found damnified " and burned there" (o). 14. This rule of the maritime law, which directs the payment of freight according to the proportion of the voyage performed, was fully recognized, and adopted, in the Cuurt of King's Bench, in a case that happened soon after Lord Mansfield presided in that Court. The cau?e bad been tried before his Lordship [302] in the country, and he appears to have paid pecu- liar attention to the decision. " I was desirous," said " his Lordship, " to have the point reserved for the opir.- " ion of the Court, in order to settle it more deliberate- " ly, solemnly, and notoriously ; as it is of so extensive " a nature, and especially as the maritime law is not " the law of a particular country, but the general law of (o) Lnttoidge &f another v. Grey will be found in the printed jour- 3 others, determined in the House nals of the year, p. 356. 1 he case of Lords, 23 February, 1733. The is cited in the case of Lukev Lyde, account here given is t'ken from both attViebarand by Lord.Wans- the printed cases delivered b\ both field, who was one of the counsel parties to the House of Lrds. The for the appellant, judgment of the House of Lords 344 PART ra. CHAP. vn. "' nations : non erit alia lex Roma?, alia A depend upon the delivery of the entire cargo. Molluy, immediately alter the cita- tion ot this case, adds the following observation: "But (ar) 1 Brownlow, 21. cited ante p. 293. PAYMENT OF FREIGHT. 35? " by the Civil Law this is vis major or casus fortuilus, " there bein? no default in the master or his mariners, " and the same is a danger or peril of the sea, which if " not in naval agreements expressed, yet is naturally " implied : for most certain had those goods, which the " pirates carried away,, in stress of weather, warts levun- " da causa been thrown overboard, the same would not " have made a disability as to the receipt of the sum " agreed on ; for by both the common law and the law '* marine, the act of God, or that of an enemy, shall no " ways work a wrong in actions private" (/). (1) (y) Molloy, book 2. ch. 4- sect. 7. (1) The same doctrine was recognized in the following case. The plaintiffs as agents of the brig Jefferson, let her to the de- fendant for a voyage from the port of New-York to St. Lucia, and back again to New-York. The plaintiffs covenanted t6 take in the cargo and carry it to St. Lucia, and to bring back a return cargo and deliver it, &c. ; and the defendant covenan- ted to load the vessel and to pay the plaintiffs for the charter of the brig $2750. It was also agreed in the charter-party that on the delivery of the outward cargo at St. Lucia, $1800 should be considered as earned and due, and should be paid by a draft at 60 days, and the remaining $950 should be paid on the return of the vessel to New-York, and the delivery of the cargo there. The brig sailed on the voyage and delivered her outward cargo at St. Lucia, and having on board her homeward cargo, after prosecuting about three-fourths of the distance of her return voyage, on the high seas, she was run foul by a ves- sel and so much injured that the crew left her, and the brig was taken possession of by other persons and brought into New-York, after a passage of 1 8 days, and on being libelled one half of the property was decreed to the libellants. An ac- 358 PATR III. CHAP. VII. 18. But aa the right to freight does not com- [314] mence until the ship has broken ground and be- gun the voyage, no partial payment can be claim- ed for goods laden on board, if even without the fault of the master the ship is prevented from actually setting forth on the voyage. And therefore in the case of a ship, which took on board a cargo in Salt River, in Ja- maica, at a very great expense to the owners, (who by the usage of (he West-Indi* trade fetch the cargoes from tion was brought on the charter-party to recover the $950 for the homeward freight, the $1800 having been paid pursuant to the stipulation in the charter-party. The Court were of opin- ion that the plaintiffs could not recover in an action upon the charter-party. That as the contract was entire, the ship being chartered for a specific sum for the voyage, and payment was to be made only upon the delivery of the cargo at New-York, it was a condition precedent that the cargo should be there de- livered before the right to recover freight would accrue. That not having been done within the intent of the parties in the present case, the plaintiff could not recover in the present form of action. At the same time the court thought that the plain- tiff^ consistently with the case of Luke v. Lyde, 2 Burr. 882., would be entitled in another form of action to a freight in pro- portion to the value of the goods actually received, which, de- ducting the salvage in this case, would be one half of the cargo. Post & another v. Robertson. 1 John. New-York Rep. 24. But see the argument of Justice Livingston, who dissented in the same case from the majority of the Court on the point of a pro rata freight being due. An action was brought on a charter-party, which was dated 6th of February, but in fact was not executed (and was so a- verred) until 15th of March, and it contained a covenant by PAYMENT OF FREIGHT. 359 the shore at their expense,) and which actually cleared out for the voyage, but, while waiting for convoy, was cut out of the river by two French privateers, and being afterwards retaken, was carried into Port Royal, where the cargo was sold under an order of the Court of Ad- miralty, and the proceeds thereof with the deduction of salvage paid to the merchants : it was decided that nothing could be claimed of the merchants, although the owner that the ship should proceed from Deptford where she then lay, on or before the 1 Zth day of the said February, on her outward bound voyage, and return, &c., and a covenant by the freighter that in consideration of every thing above men- tioned, 4-c., he would pay a certain freight for the voyage. The voyage was performed and freight earned ; and the question was whether the plaintiff was entitled to recover upon the charter- party, it appearing that the vessel had not sailed on or before the l%th of February, according to the charter-party. The court were of opinion that this part of the charter-party, even admit- ting it to be^ a condition precedent, having been rendered im- possible to be performed by the parties themselves, not having executed the deed until after the time appointed to do the act, the performance of it was dispensed with and formed no part of the contract. Lord Ellenborough inclined to believe that had it been possible to be performed, it would have been a con- dition precedent ; but Mr. Justice Lawrence was of opinion that it was rather of the nature of a mutual independent cov- enant for the non-performance, of which an action might, un- der certain circumstances lay ; that it resembled the case of Constable v. Cloberie, Palm. 397. cited Abbot, 188., in which case the substance of the covenant was, that the vessel should sail the voyage, and not merely that she should sail with the next fair wind. Hail v. Cazenove, 4 East. Rep. 477. 360 PART in. CHAP. VII. each of the Judges expressly recognized the rule of the marine law as to the partition of freight pro raid itineris ; the Court holding, that in thia case there had been no commencement of the voyage, and therefore no freight could be due ; and that, as the freight was by the con- tract the only remuneration of all the services perform- ed by the owners, they were not entitled to any re- compence for the expense of taking the goods on board (*) 0) 19. It oftens happens that a ship is hired by [315] a charter-party to sail from one port to anoth- er, and from thence back to the first, as for in- stance from London to Leghorn, and back from thence to London, at a certain sum to be paid for every month or other period of the duration of the employment. Upon such a contract, if the whole is one entire voyage, and the ship sail in safety to Leghorn, and there deliver the goods to the merchant, and take others on board to be brought to London, but happen to be lost in her return thither, nothing is due for freight, although the roer* chant has had the benefit of the voyage to Leghorn : (z) Curling v. Ling, I Bos. & Pull. 634. (1) But, where the charter-party is for the voyage round, at a certain freight for the outward voyage, and a different freight for the homeward voyage ; yet the contract is so far considerd entire, that a policy on the freight on the homeward voyage " at and from the port of loading" is considered to attach, while the ship is delivering her outward cargo at the port, and before any of the homeward cargo is taken in. Horncastle v. Suart, 7 East. Rep. 400. S. P. Thompson v. Taylor, 6 T. Rep. 478. PAYMENT OF FREIGHT. 361 but if (he outward and homeward voyage are distinct, freight will be due tor the proportion of the time em- ployed in the outward voyage (a). Upon this point Malyne mentions a remarkable case of five ships, in which he himself was interested as one of the merchant freighters. The whole five were freighted out from this country for Leghorn and Civita Vecchia, and back from those places. They all performed their outward voyage, but before any part of the homeward cargo was shipped, they all set sail, and came away, through fear of being taken by the gallies of Don An- drea Doria, who intended to surprise them, the Grand Armada being then preparing in Spain. Two of the ships had waited for their lading the whole time stipulated by their charter-parties, and the mas- [316] ters had made their protests against the factors, who should have laded them. These two, says the author, were by the law of the Admiralty adjudged to have deserved their whole freighf. Two others, not having waited the stipulated time, could not be found to have deserved any freight at all, although they were laden outward. The fifth ship also had not waited the stipulated time, but her charter-party contained a pro- viso, that if she should be taken or cast away on her return out of the Streights, the freight outwards, which was accounted half, should be paid : and that half and DO more was adjudged to the master (6). It should seem that this proviso, in the case of the fifth ship, occasioned the outward and homeward (a) .This proposition is laid down with a reference to Srovmlow, in by Molloy, bookS. ch. 4. sect. 9. and vhose report the point does not he cites in support of it the before appear. Ante 297. sect. 12- mentioned case of Bright v. Cowper (6) Ma(tmc, p. 98. 50 362 PART III. CHAP. VII. vova^es lo be considered as distinct voyages, for the event mentioned in the proviso had not happened. And a similar construction was given to a very different charter-party in the following case (c). Mackrell, the owner of a ship called the Richard, lying in the river Thames, let his ship to freight by a charter-party dated 9tli of March 1774, to Simond& another "by the month, ' for such time as she should be employed in [317] " performing a voyage from London to Plym- " on //i, and the island of Grenada, and from 14 thence back to London," and whereby the plaintiff covenanted, " that the ship should, pursuant to the or- " ders and diieelions of the freighters, their factors or " assigns, prosecute and perform the voyage above- * mentioned, (the dangers and perils of the sea, and " the restraint of princes and rulers excepted,) and " should in such outward and homeward voyage load " and unload all lawful goods : and that his ship's company and boats should aid and assist in unloading and reloading the said ship's cargoes as customary at tne island of Grenada, and that he would pay ail port- charges and pilotage. In consideration whereof the defendants covenanted that they *' would load and un- " load the ship, and give the master proper orders in " respect thereof: and that the ship should be disrharg- 41 ed out of her said monthly employ on the delivery " of her homeward cargo in London, and also should " and would well and truly pay or cauae to be paid to " the said owner his executors, administrators, or as* (c) Mickreltv. Simond & Han- nada; in the second up to the day key, in K. B. Tnn. 'I*. Ic Geo. 3. of the loss of the ship. The de- It was an action of covenant on the fendants demurred to both counts, charter-party, in the first count of Judgment was given for the plain- which the plainufl'claimed freight tiff' on the first count, and 'for the for tbe pcriodof the voyage to Gre~ defendants on the second. PAYMENT OF FREIGHT. 363 " signs, in full for the freight and hire of the said ship " at the rate of 110/. sterling per calendar month, for " all such time as the said ship should be taken up in " performing the voyage aforesaid, to commence and be " accounted from the day of the date of the said char- " ter-party, and to end and determine on the day of the * discharge of the homeward cargo at London, and to " be paid one-third part thereof on her report inwards " at the custom-house, London, and the remain- ing two-third parts thereof in two calendar [318] " months then next following." In pursuance of this charter-party the ship took in goods belonging to the merchants Simond fy Hankey at London, sailed with them to Plymouth, and there took in otiier goods belonging to them, and from thence pro- ceeded to Grenada, and there landed the cargo ; and re- ceived another cargo from the merchants' factor there, with which she set sail for London; but on the way was lost by tempest. The voyage to Grenada occupied three months; and Jive months elapsed in the whole be- fore the loss of the ship : after the misfortune the owner brought an action against the merchants, claiming of them the payment of freight either for three, or for jive months. The merchants insisted that nothing was due. The Court decided that freight was payable for three months, the period of the outward voyage. And Lord Mansfield delivered his judgment to the following effect : " This question depends upon the construction of the " charter-party. If the parties have expressed their " meaning defectively, the Couii must be guided by " the nature of the thing. The charter-party p.its no " case but that of a prosperous voyage out and home ; " it provides for freight on the supposition (hat the ship 364 PAKT III. CHAP. VII. " will arrive safe and report her cargo ; no provision is " made for any other case. If the ship be cast away on " the coast of England, and never arrive at Ihe port of " London, yet if the goods are saved, freight [319] " shall be paid, because the merchant receives " advantage from the voyage. This is not ex- " pressed by the charter-party, but arises out of Ihe " equity of {be case. Freight ia the mother of wages, " the safety of the ship the mother of freight: that is " the general rule of Ihe maritime law. If there be one " entire voyage out and in, and the ship be cast away on " the homeward voyage, no freight is due, no wages " are due, because Ihe whole profit is lost ; and by ex- " press agreement the parties may make the outward " and homeward voyage one. Nothing is more com- " mon than two voyages : wherever there are two voy- " ages, and one is pei formed, and the ship is lost in the u homeward voyage, freight is due for the first. Here " the outward and homeward voyage are so called in " the charter-party. The cargo is loaded outwards, " and the owner covenants to pay port-charges on the " outward voyage. The whole of that voyage was " completed: port duties are incurred and paid. Noth- " ing however is due on the homeward voyage, though " the ship might be out a month." In the following case (d) the words of the charter- party being different, a different construction prevailed. (d) Byrne & others v. Pattinson, thence to Barbadoes, and for the in K. B. Tr'ni. T. 27 Gee. 3. The disbursements and port charges of question arose on a sett-off pleaded the ship at JHadeira, and on the by the defendant, the master of the voyage; and for work and labour ship to an action brought against generally, and money paid ; so that him on another account by the the decision did not turn upon the merchant. The plea did not refer form of the proceedings in the to the charter-party, but was for the cause. The question came befoie freight and hire of the ship from the Court by a special case reserv- J.irerpool to Madeira, and from ed from the assizes. PAYMENT OF FREIGHT. 365 One Pattinson, master and part-owner of the ship William and Mary, lying a! Liverpool, by a [ 320 ] charter-party, dated 28th July 1794, let the ship to freight to Byrne & others, for a voyage intended to be made from Liverpool to the island of Madeira, and from I hence to the island of Barbadoes, and from thence back to Liverpool, Greenock, or Bristol, but with liberty for the freighters to order the said vessel from Barba- does to any one other island in the IVest Indies (Jamai- ca excepted) they paying all pilotage and port-charges incurred thereby. And the said freighters accordingly by the said charter-party took and hired the same in manner following (that is to say) that the master should immediately receive and take a cargo on board the said' vessel from the freighters, and the said vessel so loaded should immediately proceed direct to Madeira, and de- liver such goods as should be ordered by the said freighters, and also should receive and lake on board the said vessel at Madeira such other goods as the said freighters might think proper to ship, and that being done the master should proceed with the said vessel to Barbudoes, aod there make delivery of her cargo, and receive and take on board a cargo from the freighters, and being loaden therewith, should with the first oppor- tunity proceed direct to the port of Liverpool, Greenock or Bristol, and there deliver the same cargo, and so end the said intended voyage. In consid- [ 321 ] eration of which the said freighters thereby promised and agreed, amongst other things, to pay to the defendant in full for the freight and hire of the ship for the said voyage the sum of 136/. 10s. per calendar month for six months certain, to commence in eight days after she was ready to receive the cargo at Liver- 366 PART III. CHAP. VD. pool, and to continue uniil she was discharged at Liver- pool, Greenock, or Bristol, together with two thirds the amount of all pilotage and port-charges, that might an- crue, and be paid during the course of the said voyage, with customary primage ; payment thereof to be made in manner following, vis. 136. 10s. to be advanced be- fore sailing from Liverpool by a good bill at three months dale, and what cash might be required for < >e said vessel's disbursements and port-charges at Madeira, and Barbadoes, to be paid in part of (he said freiah;, and the remainder of the said freight should beco;ne due and be paid on the final discharge of the said vessel at Liverpool, Greenock, or Bristol,by good bills on London at three months date. The period of computation menced on the 7lh of August 1794 ; on the I9ib of 'h^t month the ship sailed from Liverpool for Madeira, freighted with goods, and arrived there on the 19th of September, and discharged at that place, by the 4th of October, as many of the goods as were to be delivered there, and took on board on account of the merchants ninety pipes of wine, and sailed from thence on the 9tb of October for Barbadoes, but on the 10ih of [322 ] November was captured on the way thither. The merchants bad paid 135f. part of the freight for the first month, and also the port charges and disbursements for the ship at Madeira. Pallinson now claimed in the present suit further freight from the 7th of September to the day of the ship's capture, or to the day waen she had completed the delivery at Madeira, or freight for the goods delivered there at the usual rate of coveyance, allowing the I3!)l. But the Court held that he had no claim whatever. On hi* part it was contended that there ought to be an apportionment PAYMENT OF FREIGHT. 367 in this case ; and the passage before cited from Malyne t relating to a ship lost at Dover, was quoted as an au- thority "m his favour. Bui Lord Kenyan, Chief Justice, said, " In that case the goods came to the merchants' *' bands, and the owner of the ship might have provided " another ship to carry them to London* In this case, "by the terms of the contract, Ihe freight is to be- "come due at Liverpool, and therefore it cannot be "claimed before." These two cases may serve as a guide for the con- struction of other charier-parties on the same subject, or for the framing of a charter-party in such a manner as to express the real meaning of the contracting parties without ambiguity (1). (1) A ship was chartered from New-York to Martinique, and back to New-York, for the entire sum of $4,500, which was to be paid in 60 days after the delivery of the return cargo at New- York. The ship delivered the outward cargo at Mar- tinique, and on her return with the homeward cargo was cap- tured and carried into Antigua, where the cargo was libelled in the Admiralty Court and detained for further proof, subject to the lien of freight. The ship returned to New-York with- out the cargo. The goods were apprized by the Admiralty Court, and afterwards on further proof, ordered to be restored to the claimants. It was held that the contract was entire, and BO freight could be recovered in an action on the charter-party because the ship did not deliver the return cargo at New-York^ which 'was required by the express agreement of the parties. A pro rata freight (for which the action, which was assumpsit.. was brought) was denied upon another ground. Barker v. Cheviot, 2 John. Rep. 352. A ship was chartered from New-York to St. Domingo, and back to New-York, for an entire sum payable in CO days after 368 PART III. CHAP. VII. 20. By a charier-party, made for a voyage from Lon- don or Portsmoii'h to Monte Video, and back lo aome porJ of discharge in Great Britain, with a provision that the master should touch at the coast of Africa [323] for a certain purpose, if required; the freighter covenanted lo pay 6TO/. per month, for every the return of the ship to New-York. On arriving at St. Do- mingo the ship was turned away by a British cruiser on account of the blockade of the port, and returned to New-York with her original cargo. It was held that no freight was due ; not the whole, because the voyage had not been performed ; not a pro rata freight, because there had been no acceptance of the goods at an intermediate port. Scott v. Libby, 2 John. Rep. 336. A ship was let to freight under a charter-party on a voyage from Shields to Lisbon, the freight to be paid on aright delivery of the cargo. The ship sailed from Shields and joined convoy at Portsmouth, and after being detained a month off Lyming- ton, her sailing orders were recalled by the convoy in conse- quence of the occupation of Portugal by the French, and the charterers having refused to receive the cargo at Portsmouth to which the ship returned, it was unloaded by the owner of the ship after notice to them, and sold by consent of parties without prejudice ; the court were of opinion that no freight pro rata was due. Lord Ellenborough said the case of Luke v. Lyde has been often pressed beyond its fair bearing ; but the true sense of it has been explained by my brother Law- rence in Cook v. Jennings, 7 T. Rep. 381., and my brother Le Blanc, in Mulloy v. Backer, 5 East. Rep. 316. Liddard v. Lopes, 10 East. Rep. 526. But where by a charter- party a ship was let to freight for 12 months certain, and from thence for a longer period, if any, that the charterer should think fit to keep and retain the same, PAYMENT OF FREIGHT. 369 calendar month the ship should be employed by him the freighter during her said intended voyage to Monte Vi- deo and back to her port of discharge, and so in pro- porlion for any less time^ in full for the hire of (he ship during her intended service; such freight to commence from the day the ship should be ready lo receive goods on board at Portsmouth, and end when she should have finally discharged the whole of her said cargo ; and also to pay two thirds of all pilotage and port charges during the whole of the voyage, and also two thirds of all expenses of stowing the said ship's cargo at Monte and the freight was to be paid 24s. per month per ton, being 1119/. 12s. per month commencing from the 24. September, 1806, and ending when the ship should be returned to the river Thames, and there by the freighters declared to be discharged, but the ship was not to be discharged abroad, though abroad at the end of 12 months, bat to be discharged at London ; and the freight was to be paid, 2 months freight at the execution of the charter-party, 2 months more at the end of six months from 24. September, 1806, 2 months more at ten months, 2 months more at 14 months, should the ship be so long employ- ed, and in like manner 2 months more at the end of every two calendar months until the ship should be discharged, and immedi- ately upon such discharge the balance to be paid by the freight- ers. It was held that the freight being reserved at so much per month was earned at the end of each month, although the times stipulated for payment were from 4 months to 4 months, and the ship was lost before the end of 1 4 months ; and the postponement of the payment did not create a contingency ^ whether it should be paid at all. Havelock v. Geddes, 10 East- * Rep. 555. 51 PART. III. CHAP. VII. Video ; such fr eight, pilotage,and port charges to bepaid on the arrival and discharge of the ship at her destined port in Great Britain. Upon this contract an action was brought against the freighter, and it was alleged, on the part of the owner, that (he ship took in such goods at Portsmouth as the freighter thought fit to lade, HIM! then proceeded on the voyage, and touched at the coast of Africa as required, and in the prosecution of the oulward voyage was before her arrival at Monte Vi- la the same charter-party there was a clause that.an allow- ance of extra men should be paid by the charterer, and after part payment, " the residue of such allowance was not to be " paid until the ship's discharge or return from her first intend- " ed voyage, and in like manner for any other foreign voyage " or voyages ;" it was held that the ship having been lost by fire before her return, this loss was within the true intent and meaning of the charter-party a discharge of the ship from the further prosecution of the adventure and employment in which she was engaged ; and upon that event the residue of the extra allowance became payable, as if the discharge had taken place by the act of the charterers themselves ; and that they must be understood to have discharged the ship when they could by no possibility any longer employ her. id. ibid. Where a ship was let to freight on a voyage to the East In- dies and back, and the owner was to receive in lieu of freight for the voyage one half of the nett profits of the cargo, deduct- ing all charges except insurance, and premium on dollars, of which the outward cargo consisted ; and during the voyage part of the cargo was lost by the perils of the seas ; it was held that the loss was to be deducted out of the profits, and so sus- tained equally by the owner and freighter. Putnam v. Wood, 3 Mass. Rep. 481. S. P. 4 Mass. 672. PAYMENT OF FREIGHT. 37 1 deo, without the fault of the owner, maaler, or crew, by persons unknown wrongfully seized and sent to London, and there detained for a considerable time, but after- wards liberated and restored lo him, that he then made the necessary repairs, and having properly 6tfed, vict- ualled, and manned the ship, gave notice thereof to (he freighter, and offered to prosecute and complete the voyage, and required from him the necessa- [324] ry directions for that purpose, but that the freighter refused to give any directions, or to permit the ship to pursue the voyage, and wholly renounced the charter-party, and discharged the owner from further prosecuting the voyage. It was further alleged that the ship had been employed in the voyage twelve months, and that the freight thereof amo unted to 804C/, ; that she would have been employed for twelve months more, if the freighter would have permitted, and the freight thereof would have amounted to another sum of 8040J. and that two third parts of the pilotage and port charges during the voyage amounted to 50/. : and the com- plaint was that the freighter, who had been requested to pay these sums, had refused to do so. So that by the form of the action the owner claimed to recover the freight^ &c. as due, and not to recover damages against the freighter for refusing to allow him to prosecute the voyage (e). And on behalf of the owner it was con- tended, that aa he had done all in his power toward the completion of ths voyage, and the further prosecution (e) It is not clear that the char- have furnished a ground for such terparty contained any covenant,on an action far damages.* the part of the freighter, that would *See ante The Hoffhung, 6 Rob. the Hiram, 3 Rob. Adm. Rep. 18Q. Adm.Rep. 231. cited ante,272.and cited ante, 296- note. PART HI. CHAP. VII. and completion of it were prevented by the freighter, he had acquired a richt to the sum demanded as freight, &c. as fully as if the voyage had been performed, and the ship bad arrived and been discharged at her destin- ed port. But the Court, adverting to the par- [325] ticular terms of the contract, whereby the freight, &c. were made payable on the arrival and discharge of the ship at her destined port in Great Britain, and considering that the efforts of (be owner could not possibly insure this event, which might be de- feated by the act of God, and various accidents, to which marine adventures are subject, held this not to be one of those cases, in which an offer to perform an act, if re- fused by the party to be charged by the performance, h equivalent t.j performance iiself, and consequently that the owner was not enlilled to recover the freight, See. which he claimed in this action (/) (1) (/) Smthv. fntson,3. East.437 cial pleas to which the Plaintiff It was an action of covenant, the demurred- Upvn the argument facts stated in the ttxt were con- the Court disregarded the pleas, taii.ed in thePiaimiff 's declaration, and gave jadgment against the The Defendant pleaded some spe- Plaintiff' upon the declaration. (1) Questions have arisen in cases where the ship and freight have been separately insured, and abandoned to the respective underwriters, as to the party to whom the accruing freight is to be paid, whether to the underwriters on the ship or on the freight. Much discussion was had on the subject in the cases of Thompson v. Rowcroft, 4 East. Rep. 34., and Leathamv. Terry, 3 Bos. & Pull. 485., and in the case of McCarthy & others v. Abel, 5 East. Rep. 388. it seems to be decided that the underwriters of the ship are entitled to it, as an incident to the property of the ship. The same point is strongly intimated by Lord Ellenborough and Mr. Justice Lawrence in Sharp v. PAYMENT OF FREIGHT. 373 Gladstone, 7 East. Rep. 24. They seemed however to think that a distinction might arise between the case of a chartered ship and a seeking ship. In Leavenworth v. Delafield, 1 Cain. Rep. 573. the Court decided that upon an abandonment to the respective under- writers on ship and on freight, in case of capture, those on the freight were entitled to the proportion of freight earned before capture, and those on the ship to the freight earned afterwards ; and said that it had been so decided by them in United Insur- ance Company v. Lenox, which has since been reported in 1 John. Cas. 377. and was affirmed in the court of appeals in 1801. In neither of these cases does it appear whether the ship was chartered for a specific sum or as a general ship. In Davy v. Hallet, 3 Cain.Rep. 2 1 . the Court held that where ship and freight are insured separately, an abandonment of the ship did not carry with it an abandonment of the freight, but that they were separate interests. So in Mumford v. Hallet, 1 John. Rep. 438., the Court held that where a cargo and its profits were separately insured, that an abandonment of the cargo did not prevent an abandonment from being made on the policy on profits. So in Livingston v. The Columbian Insurance Company, 3 John. Rep. 49., the Court held that freight is a distinct subject of insurance, and that a previous abandonment of the ship would not prevent the insured from recovering the freight insured by another person. But Kent, C. J. in deliver- ing the opinion of the Court said, whether the abandonment of the ship deprives the insurer on freight of his salvage, or the hope of indemnity I need not saj r , although the better opinion is that it does. In this last case the ship was chartered at the en- tire freight of $1800, half payable at Riode la Plata, and half at Hamburg or other port of discharge. Whether this would make any difference,and whether the cases in 1 Cain.Rep. 573. and 1 John. Cas. 377. are otherwise distinguishable from this* 374 PART m. CHAP. vii. or whether the doctrine in them is meant to be doubted, is for the reader's consideration. On sale of a ship chartered for a particular voyage, if the ship be sold in the course of the voyage, this does not transfer the freight, and the vendee has no legal right to receive the freight and demurrer due from the freighter upon the charter- party. Splidt v. Bowles, 10 East. Rep. 279. OF GENERAL AVERAGE. 375 CHAPTER THE EIGHTH. OF GENERAL OR GROSS AVERAGE. 1. JH.AVING thus treated of the respective duties of the owner and the merchant, I now proceed to the con- sideration of a subject, which is equally a duty of the one and the other : namely the general contribution, that is to be made by all parties, toward a loss sustained by some for the benefit of all. This contribu- tion is sometimes called by the name of general [326] average, to distinguish it from special or partic- ular average, a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever ; and some times by the name of gross average, to distinguish it from customary average mentioned in the bill of lading, which latter species is sometimes called also petty aver- age. The principle of this general contribution is known to be derived from the ancient laws of Rhodes, being adopted into the Digest of Justinian with an express re- cognition of its true origin. The wisdom and equity of the rule will do honor to the memory of the state, from whose code it has been derived, as long as maritime commerce shall endure. The principle of the rule has been adopted by all commercial nations, but there is no principle of maritime law, that has been followed by more variations in practice. The modern ordinances of the several continental states of Europe differ from each other in many particulars relating to this general con- 376 PART ra. CHAP. vrn. tribution, and (be French Ordinance establishes a differ- ent mode of contribution in different cases. An enu- mera f ion of these varieties would furnish little enter- tainment or instruction to an English reader : discor- dant rules rather serve to perplex the choice, than to guide ihe judgment. If any one is desirous of knowing all, that doctors have written, and states ordained, on these particulars, I must refer him to the very [ 327 J elaborate and learned treatise of Emerigon on insurance(a), a work, in which no subject is dis- cussed without being exhausted. The determinations of English Courts of Justice furnish less of authority on this subject than on any other branch of maritime law ; there being only three reported cases of questions be- tween the parties liable to contribution in the first in- stance, and very few of questions between the party so liable and the insurer, from whom indemnity has been sought. The work of Magens contains a variety of cases of adjustment of average, by consuls and courts abroad and by merchants at home, detailed with all the tedious formularies of the notarial office, and the minu- tiae of the counting-house, but accompanied by some very judicious remarks. The most useful information upon this subject is to be found in Mr. Park's system of maritime insurances, but as the nature of the present work requires that it should also be treated of here, I shall examine, first, the cases in which general contribution is to be made ; secondly t the articles that are to contri- bute ; and lastly, the mode of contribution ; confining myself as closely as possible to the authorities and prac- tice of our own nation, or to those ancient laws and or- (a) Chap. 12. sections 39 to 42. tribution, Cutt ing, Seealso on the subject of this chap- and Jettison, in which are many ci- \xxWetkett on Insurance titles,Cn- tations from theforeign ordinances. OF GENERAL AVERAGE. 277 dinances, which are generally considered as guides by English lawyers on subjects of maritime law. 2. The rule of the Rhodian law is this : " If " goods are thrown overboard in order to light- [ 328 ] " en a snip, the loss, incurred for the sake of " all, shall be made good by the contribution of all" (6). The goods must be thrown overboard : the mind and agency of man must be employed : if the goods are forced out of the ship by the violence of Ihe waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. They must be thrown overboard to lighten the ship ; if they are cast overboard by the wanton caprice of the crew or the passengers, they, or the master and owners for them, must make good the loss. The goods must be thrown overboard for the sake of all ; not because the ship is too heavily laden to prosecute an ordinary course through a tranquil sea, which would be the fault of those who had shipped, or received the goods; but, be- cause at a moment of distress and danger their weight, or their presence, prevents the extraordinary exertions required for the general safety. When the ship is in danger of perishing from the violent agitation of the wind, or from the quantity of water, that may have forced a way into it, or is laboring on a rock, or a shal- low, upon which it may have been driven by a tempest ; or when a pirate or an enemy, pursues, gains ground, and is ready to overtake ; no measure that may facili- (A) Dig 1 . 14. . 1. Lege Rhodia contributione sarciatur, quod pro cavetur, ut, si levandse naris gratia omnibus datum est. jactus mercium factus sit .omnium 52 378 PART HI, CHAP. VIII. tate the motion and passage of the ship, can be [329] really injurious to any one, who is interested in the welfare of any part of the adventure, and every such measure may be beneficial to almost all. In such emergencies therefore, when the mind of the brave is appalled, it is lawful to have recourse to every mode of preservation, and to cast out the goods in or- der to lighten the ship, for the sake of all (c). But if the ship and the residue of the cargo be saved from the peril by the voluntary destruction or abandonment of part of the goods, equity requires that the safety of some should not be purchased at the expense of others, and therefore all must contribute to the loss. 3. Many of the foreign ordinances (J) have prescri- bed various forms to be adopted with respect to jetti- son ; some of (hern have even named the persons to be consulted before it takes place, and have set down the phrases of consultation, and specified the sorts of goods that shall be first thrown ; and some authors have amu- sed themselves by dividing the act itself into the several species of regular and irregular, formal and informal (e). But the regulations prescribed by persons at ease in the closet or the senate-house will seldom be followed [ 330 ] at the moment when life, or liberty, is in jeopardy ; at such a moment every one present will exclaim with the friend ofJuvenul, Fundite, qua men sunt-etiam pulcherrima ; and provided the jettison have been the effect of danger and the cause of safety, all writers agree that contribution ought to be made, although the forms ' (c) Mouse's case, 12 Co. 63. men- 38. French Ordinance, liv. 3. tit. 8. tioned also in Bird v. Jlttcock, 2 Du Jet, art. 1, 2, 3, & 4. and Valin BulsU 280. thereon. (d) Laws of Oleron, art. 8. & 9. (e) See Emeriffon, torn i. p. 605- OrdiH. of Wisbuy, art- 20, 21, and OF GENERAL AVERAGE. 378 have not been complied with. Previous deliberation, if there be time to deliberate, and a due choice of the heaviest and most cumbersome articles, may be proofs of the necessity and propriety of the act; but they are not the only, and therefore ought not be deemed the essen- tial proofs (/). Indeed in this case, as in many others, too close a compliance with forms at a period of sup- posed danger has very justly excited a suspicion of fraud (g*). In all cases however, and in all countries, it is justly required of the master that he draw up an account of the jettison, and verify the same by the oath of himself and of some of his crew, as soon as possible after his arrival at any port, lhat there may be no op- portunity to purloin goods from the ship, and then pre- tend they were cast over in the danger. 4. From the rule thus established by the Rho- dians various corollaries have been deduced. [331 ] Thus, if in the act of jettison, or in order to ac- complish it, or in consequence of it, other goods in the ship are broken, damaged, or destroyed, the value of these also must be included in the general contribu- tion (I). So, if to avoid an impending danger, or to re- (/) So decided in JSirkley &f he had been a magistrate at Ge- othert v. Presgrave, I East. Rep. noa, conversant with this subject, K. B. 220, as to other cases of gen- he had known only five instances eral average. of regular jettison, all of which (g} Emerigon,lom. i. p. 605 cites were suspecteil of fraud, because an observation of Targa, who says, the forms had been too well ob- that during tixty years, in which served. (1) All damage immediately arising from jettison or other act of necessity is to be contributed for, though it happen to perishable articles which remain in specie. Therefore if in cutting away a mast, it be splintered, so that corn which is part 380 PART 111. CHAP. VIII. pair the damage occasioned by a storm (ft), the ship be compelled to lake refuge in a port, to which it was not destined, and into which it cannot enter without taking out a part of the cargo, and the part taken out to lighten the ship on (his occasion happen to be lost in the barges employed to convey it to the shore, this loss also, being occasioned by the removal of the goods for the general benefit, must be repaired by general contribution ; but if, after the removal of goods for such a purpose, the ship with the remaining cargo should unfortunately perish, and the goods in the barges be saved, the pro* prietors of the latler shall not contribute to the loss of the others, because the Safety thereof is not owing to that loss. So if part of the cargo be voluntarily, and without fraud or cowardice delivered up to a pirate by way of composition or ransom, to induce him to spare the vessel, and the residue of the goods, (an event high- ly improbable,) or if a sum of money be agreed to be paid to a pirate or enemy by way of ransom, all [ 332 ] writers agree that the value of the ransomed must contribuie to this loss also ; but if the enemy or pirate, having overpowered the ship, select for himself such parts of the cargo as best suit his pur- poses, and plunder the ship of them, in this case there (A) In the Dig. 14, 2. 4. and ths mentioned in the text- See Ben-wet, Guidon, ch. 5. art. 28. the rule 165. 2 Falin, 167. Yet see Well- is U.ddown in general terms, but -wood, tit. 20. most writers confine it to the cases of the cargo, sustain damage, that damage is to be included in the general average. So if in removing and throwing over any part of the cargo, another part is injured. Maggrath, &c. v. Church, 1 Caine's New-York Rep. 196. OP GENERAL AVERAGE. 381 shall be no contribution, because the value of these goods was not the price of safety to others (z). But ransom in the case of capture by an enemy, can hardly become the subject of general average in this country, for by an act passed in the twenty-second year of his present Majesty's reign (fe), the ransom of any ship or merchandize on board the same, belonging to any sub- ject of this country, and taken by " the subjects of any " state at war with his Majesty, or by any persons com- '* mitting hostilities against his Majesty's subjects," is absolutely prohibited ; and by a statute made at the commencement of the present war (/), such ransom is prohibited, " unless in the case of extreme necessity to be " allowed by the Court of Admiralty ;" and all contracts for ransom contrary to these statutes are made void ; and the person entering into such contract is subjected to a penalty of Jive hundred pounds. 5. And not only may the loss of goods be- come the subject of general contribution, but [333] also in some cases the expense incurred in rela- tion to them (m). Thus, if it be necessary to unlade the goods in order to repair the damage done to a ship by tempest, so as to enable it to prosecute and complete the voyage, it seems that the expense of unlading, warehousing, and re-shipping the goods, should be sus- tained by general contribution, because all persons are (*') Dig- . 14. 2. 2. 3. Hicks v. continue only during the last war PcUington, Moore,297.See22 Geo. with France. 3. c. 25.and query if'it affects this. (1) 43 Geo. 3. c.160. sect. 34. 35. Well-wood, tit. 18. 45 Geo. 3. c. 72. sect. 16, 17. (fr) 22 Geo. 3. .25. This statute (m) See the COPENHAGEN, Men- is not limited as to time, yet the ing; 1 Rob. A.H. 289.and Da Costa 37th and two following clauses of v. Seivnham, 2 Ter. Kep- K. B. the 33 Geo. 3. c. 66. contained the 407. also the GRATJTUIJINE, same prohibition, &c. of ranspm, Mazzola, 3 Rob. A. R. 257 vhere and the latter statute was made to this seems to have been admitted. 382 PART HI. CHAP. VIIL interested in the execution of the measures necessary to the completion of the voyage.* 6- The rule mentions goods only ; but its principle extends also to the ship and its furniture : and all that I have hitherto said respecting the goods, is to be un- derstood also of the provisions, the guns, the boat, or other tackle of the ship ; a fortiori, it is also to be understood of goods belonging to the owner or master of the ship, as well as of those belonging to the merchant. Emerigon illustrates the case of the boat, by the rela- tion of a stratagem practised by one of his own coun- trymen. The master of a French vessel, having been pursued for several hours by two frigates, and having also his flight intercepted by the appearance of two oth- er vessels a-head, hoisted, as soon as it became dark, his boat into the sea, furnished with a mast and sail, and a lanthorn at the mast head, and then changed his [334] course, and sailed during the whole night with- out any light on board his own ship : in the morning no enemy was in sight. The value of the boat thus abandoned, was made good by general con- tribution (n). 7. If sails are blown away, or masts or cables broken by the violence of the wind, the owner alone must bear the loss (o). The broken tools of an artificer bring no charge upon his employer. Arid this rule has been held to apply to the case of a mainmast broken in a heavy gale, by carrying an unusual press of sail in order to escape from an enemy, to whom a ship had struck Q>). (n) Emeneron,tom. 1. page 622. of Wisbuy, art. 12. () Coving-ton v.Robertt>%. Sot. 6. Well-wood, tit. 17. RoecJit, not. andPu//, N. R. 378. 60. Laws of Oleron, art. 9. Laws Post s. 7. 8. OF GENERAL AVERAGE. 383 But if the master, compelled by necessity, cut his cable ( (7) Birkley (3 others t>. Pres. (t} Laws of Wisbuy, art. 55. grave, 1 East. 220. Jtfolloy, book 2. chap. 6. sect. 15. (r) Jtfarshum v. Dutrey, select and nee also Becnves, p. 165. and cases of evidence, p. 58. Dig. 14.2. Well-wood, tit. 20. 3. and 5. 1. (M) Birkley & others v. Pres> () Dig. 14. 2. 2. 1. grave, 1 East. 220. (1) In case a ship be -voluntarily stranded to save the cargo, the loss of the ship becomes a general average. But where the- ship is involuntarily wrecked and part of the cargo saved and part lost., no general average is due. Emerigon (torn. 1. p. 612.) states this rule, " the owner of the ship wrecked, and the own- ers of the merchandize lost in the shipwreck, have no right to contribution from those who have the good fortune to save their effects ; because the loss that the one and the other has sus- tained, has not procured the common safety. The rule of the civil law is the same. Amissse navis damnum, collationis con- 384 PART HI. CHAP. VIII. pense incurred in a port, in which the ship may have taken refuge during the voyage, by repairing the dam- age done to the ship by tempest alone, seems with more propriety to fall upon the owners, and is so held to do in the civil law (.r), and by many foreign writers. And al- though the decision of the Court of King's Bench, in the case of Da Costa v. Newnham(y), has been consid- ered as an authority for a contrary doctrine, yet, in ray bumble judgment, the facts upon which that decision was founded, do not warrant such a conclusion. 8. Upon another point, relating to the situation of a ship taking refuge in a port to repair the damage occa- sioned by tempest in order to prosecute and complete the voyage, a reasonable doubt may be entertained, (x) Dig. 14. 2. 6. and Emerigon, who had offered to abandon to them torn 1. p. 625. and had a right to insist upon doing (y) 2 Ter. Rep. K. B. p. 407. so, but had reluctantly consented This was an action brought against to the repairs at their instance, the insurers of a ship by the owner sortio non sarcitur per eos, qui merces suas naufragio liber- averunt ; nam hujus sequitatem tune admitti placuit, cum jac- tus remedio, ceteris in communi periculo, salva navi, consultum est. Lib. 5. ff. de Leg. Rhod. It is as in the case of a fire ; he who saves his own saves for himself alone. Cum depressa na- Tis, aut dejecta esset, quod quisque ex ea secum servas?et, sibi servare respondit, tanquam ex incendio. Lib. 5. ff. cod. So Cleirac, p. 51. n. 4. " after shipwreck there is no contribution to be made between the merchandizes recovered and fished up. and those lost; but, save who can. So Caserege's disc. 121. n. 17. Kuricke. 780. 788. Lubeck. cap. 3. n. 1. See also Wes- kett, 132. sect. 4. 255. sect. 4. and 2 Brown's Civ. and Adm. Law. 199. 200. OF GENERAL AVERAGE. 385 and our law books furnish no decision. Some writers maintain generally that the wages and [336] maintenance of the crew, during the delay thus necessarily incurred for the attainment of this object, are to be sustained by general contribution (r). But the principle, upon which general contribution is found- ed, appears to me to furnish a distinction proper to be submitted to the consideration of the reader. If the damage to be repaired, be in itself an object of contribution, it seems reasonable that ail expenses ne- cessary, although collateral, to the reparation, should also be objects of contribution ; the accessary should follow the nature of its principal. On the other hand, if the damage itself be not such as to be the object of contribution, by the same rule neither ought the collat- eral expenses incurred viih regard to the repairs to be- come so. In answer to this it is urged, that as the re- pairs are necessary to the completion of the voyage, in the attainment whereof all are interested, all ought to contribute to the expense of this necessary delay. But it should be remembered, that it is the duty of the own- ers not only to provide a stout and sufficient ship at the commencement of the voyage, but also, as far as in them lies, to maintain the ship in a perfect condition during the whole course of the voyage, and almost every char- ter-party contains an express covenant to this effect. If the ship be not worth all the charges of repairs, as well direct as collateral, a consideration wholly [337 ] different may take place ; in the case now under (z) Beatoes, 166. And see Park, as appears by the case of Newman chap. 7. and Emerigon t torn. 1. p. v. Cazalet, Park, p. 424, in the 624. This is the practice at Pita, note. 53 386 PART III. CHAP. VIII. examination, (he ship is assumed by all parties to be worth the charge, at least the contrary supposition is not introduced into the argument : and why should the merchant be charged in any shape toward the perform- ance of a duty incumbent on the owner ? "What is here offered, as to wages and maintenance, may perhaps ap- ply also to port-charges and other duties of the like nature incurred on the same account, but the reader will consider the whole as unsupported by authority, and propounded only for the consideration of the learn- ed. (1) There is indeed a decision of the Court of King'* Bench, upon the construction of a charter-party, which may properly be mentioned in this place. A ship, char- tered for a voyage to the East Indies and back, sprung (1) In the case of Walden v. Leroy, 2 Caine's New- York Rep. 263., the court decided that if a vessel be from sea-dam- age, as by springing a leak, &c. obliged to bear away to a port of necessity in order to refit, the wages and provisions from the moment of bearing away to the period of sailing on her voyage after refitting, constitute a subject of general average. From this decision Mr. Justice Livingston in a very able and learned argument dissented and adopted the doctrine laid down in this section by Abbott. In the case of Breed v. Ship Venus, (cited ante, 160. note,)Judge Davis said "the modern and approved doctrine on this subject appears to be, that when a ship is o- bliged to go into port to repair, it is considered for the benefit of tbe whole concern ; that the expenses of what is actually applied to the ship are to be sustained by the owner, but that all other expenses, including unloading and reloading the car go, anchorage and pilotage are, subjects of general average.'" And he cited Scomberg to the same purpose. OF GENERAL AVERAGE. 387 a leak at sea on her return home, in consequence of which it became necessary to put into the Cape of Good Hope, and there take out the cargo in order (o repair the ship. The ship, being repaired and reladen, return- ed home in safety ; and the owners claimed from the freighter a payment in the nature of general average to- ward the expense of the repairs, the maintenance of the crew, and other charges connected with the repairs. But the court considering the import of several clauses of the charter-party to be that the owners should keep the ship in repair during the whole voyage at their own expense, and being also of opinion [ 338 ] that the expressions used in another clause tend- ed to show that the defendant was to be liable to general average in the case of jettison alone ; held that upon the construction of this charter-party the plaintiff was not entitled to recover any thing for the expenses thus incurred at the Cape (a). 9. With respect also to the wages and maintenance of the crew during the detention of a ship by the orders of a sovereign power, contradictory opinions are to be found in the works of writers on this subject (6). Some authors have taken a distinction between the case of an embargo in the lading port, and the arrest and detention of a ship during the course of the voyage. The French Ordinance provides for the latter case, by declaring, that if the ship be hired by the month, the charges shall be reputed general average ; but if hired for the voyage, the owners alone shall bear them (c). The reason of this regulation is not easily discernible (d), and it is (o) Jackson & ansther v. Char- (c) Lir. 3. tit. 7- Des Avarie*. neck, 8 Ter. Rep- K. B. 509. art. 7. (A) Emerigon, torn. 1. p. 631. (rf) But see Pothier, Ch. Partie, s, 165. num. 85. Emerigon, torn. 1- p. 539. 388 PART III. CHAP. V1H. in express contradiction to the spirit of another article of the same Ordinance on the subject of freight (e). In the before-mentioned case of Da Costa v. Nervnham, Mr. Justice Buller, speaking of this expense of wages and provisions during the detention of a ship by [ 339 ] embargo, says, *' the Court has said that * these charges shall fall upon the owners only, "and the freight must bear them." And this case does not seem to fall within the principle of the Rhodian law, because here the delay does not proceed from the act of the master or persons belonging to the ship ; nor is it for the general benefit (1). (e) Liv. 3. tit. 3. Dufret. art. 16. (1) In an action brought on a policy of insurance on goods, it was decided that the charterer was not entitled to recover his extra expenses in consequence of a detention by embargo, though he had hired the vessel by the month ; and that such expenses are not the subject of general contribution. Penny & another v. New-York Insurance Company, 3 Caine's New- York Rep. 155. The same decision was had in Jones v. In- surance Company of North America, 4 Ball. Rep. 246 ; and held also to apply to detention by quarantine. Kingston v. Girard, 4 Ball. Rep. 274. But in Sharp v. Gladstone, 7 East. Rep. 24. under page 36. Lord Ellenborough on the argument seemed to consider that the wages and provisions which were charged during the detention in that case, (which was under the Russian embargo,) were subjects of general average, but afterwards the court decided that they were charges upon the ship and freight. But wages and provisions during a detention after capture form a general average. Capture is a disaster, which happens OP GENERAL AVERAGE. 389 10. For the additional expense of the wages and maintenance of (he crew incurred while a ship has been waiting for convoy, general contribution has sometimes been claimed ; and three decisions of the different Courts wHnlland on this subject are related by Bynktrshoek (/), which seem worthy of notice in this place. In the first case (he master of a general ship, which was armed, and had letters of marque, and was bound to several Italian ports, during a war between the Dutch and French, gave public notice of bis intention to receive goods, and to sail for (hose ports, without the company of other ships. (/) Bynkershoek, Questiones Juris Privati, lib. 4. cap. 25. without the fault of the owner of the goods or ship, and by superior force, and expenses incurred in consequence of it are for the common benefit of all, and it is not easy to assign a reason therefore why they should be borne by one of the par- ties in misfortune rather than all. And so are the judgments of the most enlightened nations. Leavenworth v. Delafield, 1 Caine's New-York Rep. 573. See also Speyer v. The New- York Insurance Company, 3 John. Rep. 88. and Kingston v. Girard, 4 Ball. Rep. 274. However where a vessel was captured and after-wards releas- ed, but a part of the cargo was condemned, by judgment in a court of Vice Admiralty, from which judgment on the cargo an appeal was made, and pending this the master being una- ble to procure the requisite security to prosecute, comprom- ised with the captors and paid a sum as a ransom, it was de- cided that the sum so paid was not a general average, but must be borne by the cargo alone, it not having been incur- red for the benefit of the ship, freight and cargo, but for the latter only. Vandenheuvel v. United Insurance Company, 1 John. New-York Rep. 406. 390 PART ra. CHAP. vra. Having received a cargo, he set sail under convoy of a ship of war destined for Portsmouth, entered with her the harbour of that place, and there waited a whole year for another convoy, under which he sailed to Cadis ; and there waited a second year for a third convoy, under which he sailed to Italy, and delivered hia cargo there. Under these circumstances the master sued the mer- chants for general average, and obtained a decree [ 340 ] in his favour, which was confirmed by one Court of appeal, reversed by a second, and at last finally affirmed by the Senate, of which the learned author was then a member ; against his opinion, and a- gainst the general principles of law on this subject, and against the particular engagement made by the master on this occasion. This judgment appears to have been disapproved of in Holland ; for, in another case, which happened soon afterwards, where five Dutch vessels coming from Surinam, and learning on their voyage that a war had broken out between the Dutch and French, put into Plymouth, and there waited for convoy ; which case also went through all the same tribunals, the Senate decreed against the claim of contribution. A third case happened soon afterwards, in which the same four Courts successively decreed in favour of the claim (g-). But of this the circumstances were very different from the two former, and such as seem to warrant the judgments pronounced in it. It was the case of a ship freighted from Amsterdam to Cadis, with a stipulation to sail with convoy either to that place or as far as Liibon, The (g) For the sake of those who cases a period of nearly teven complain of delay in the adminis- years elapsed between thejr*f and tration of justice in this country, the last sentence ; in the tecond a it may be proper to mention, that period of nearly ten years, and in in the latt of these three foreign the/r*f, of almost rixteen years. OF GENERAL AVERAGE. 391 ship accordingly sailed under convoy of a man of war, in company with several other vessels, and when she came near Lisbon, fell in with a fleet cf privateers, by which some of the other vessels [341 ] were captured, and the ship in question put into Lisbon in obedience to a signal from the man of war, and there waited six months before she could safely proceed to Cadis. In this case it is to be observed, that the master put into port to avoid an extraordinary and impending peril, and not merely as a matter of general caution to avoid the ordinary dangers always accompanying a state of warfare. And the expense thus incurred appears perfectly analogous to the cases of jettison, and to fall within the principle of the Rhodian law. For in this case, as the learned author observes, it is clear that there was a present and impending peril ; and it is clear also, that the voyage was delayed, not by any accidenf, but by design, in order to avoid the peril. 11. The Ordinance of the Hanse-Torvns also men- tions as an object of general average the expense of healing mariners wounded in the defence of the ship against the attack of pirates (ft) : I have already men- tioned the provisions made by the legislature of this country for persons of this description (/). On the ex- pense of repairing the injury done to a ship during a combat, foreign writers differ in opinion (k}. This seems to fall within the class of expenses incurred for the general safety : but I do not find any author- [342] ify in the law of England relating to it. In the Guidon, an injury done to the cargo by the shot of can- non, is said to be a charge upon the merchant only (/). (A) Art. 35. des Avaries,*ffcr.2.nM. 144.&f 154. (") Part. 2. ch. 4. sect. 12 & 13. Emcrigon> torn. 1. p. 628- (*) 2 Falin, 168- Pothier traite (0 Ch. 5. art. 4. 392 PART III. CHAP. VIII. 12. By (he law of most of the continental nations of Europe the injury done by one ship to another, or to its cargo, without fault in the persons belonging lo either ship, is to be equally borne by the owners of the two vessels (m) ; and this doctrine is advanced by many for- eign writers ; it therefore becomes necessary to observe here, that by the law of England, in the case of damage happening in this manner either to ship or cargo, by mere misfortune and without fault in any one, the pro- prietors of the ship or cargo injured must bear their own loss (n). I have already mentioned that such a misfor- tune is considered as a peril of the sea. And in this respect the law of England agrees with the Civil Law (o). 13. Hitherto we have considered the losses, which are to be compensated by general contribution, as being the price of safety, but this is not to be understood of abso- lute and perfect safety, by arrival and delivery at the port of destination. If temporary safety [343] be obtained by the loss ; if the ship survive the storm, or escape the enemy, and be afterwards cast away by another tempest, and goods be saved from the wreck, the clear value of the goods so saved must be contribu- tory to the original loss, because without that loss even this diminished value would have had no existence (/>). The abandonment of goods on these occasions, al- though done by the act of man, is not considered to be so far voluntary as (o divest the property of the merchant, (m) Ordin. of Oleron, art. 14. of (n) See the case of Bullerv, Fish- Witbuy, art. 26.50.6". (J 70. French er, ante, chap. 4.of this part, sect.5. Ordinance,\\\. 3.tit.7- J)es ^varies, (o) Dig. 9- 2. 29. art. 11. and VaUn thereon, and (/>) Dig. 14. 2. 4. 1. Vinniut in Bynkershoek. Quest. Jur. jPriv.Mb. Peskium, p. 246. 250. 4. c. 18, 19, 20 iJ 21. OF GENERAL AVERAGE. 393 and give a title to any person, who may find and save them: but from such person the merchant may reclaim them on payment of salvage ( Lord Kaim admits this rule, (c) 1 Magens, p. 62. 63. But by but controverts its propriety, and the Civil Laiv the rule was other- contends that the contribution wise, Dig. 14. 2 2-2. and a con- shoul'.' be according 1 to -weight and trary rule is also laid down in the not value. Principles of Equity p. Guidon,chap 5. art. 26. upon which 116. I cannot think his sirguments however Cleirac observes that the satisfactory. Ordinances of different states vary- (v) 1 Magena, p. 62, 63. (d) Tom. 1. p. 645, &c. (*) Dig. 14 2- 2- 2. OF GENERAL AVEIIAGE. 395 ed in the voyage, are now every where contributory, al- though formerly in some countries contribution was made for the value of one only (e). But the owners do not contribute for the victuals or ammunition of (he ship. In France, and many other of the continental states, contribution is made ii some cases for the whole, in others for a moiety only of the value of the ship and of the gross freight (e). In this country the owners contribute according to the value of the ship at the end of the voyage, and the clear amount of the freight or earnings of the voyage, after deducting the [ 346 ] wages of (he crew and other expenses of the voyage (1). The mariners do not contribute for their (e) Seethe aulhorites cited by Emerigon, torn. 1. p. 648, SJc . and Ordin. of Wisbuy, art. 40. (1) In cases of jettisons the same rule in respect to the value of the ship and freight in calculating their proportions of the contributions seems adopted in the State of New-York. And where a freight pro rata only has been earned, that, and not the freight which would have become due on delivery at the port of destination, has been adjudged to be the correct valua- tion. Maggrath, &c. v. Church, 1 Caine's New-York Rep. 196. But in cases of general average on detentions after capture, a different rule has been adopted in New- York. For in such case the contribution has been apportioned in the following manner, viz. on the cargo valued at its first cost and charges at the port of departure ; on the vessel valued at four-fifths of her actual value at the same place exclusive of outfits ; and on the freight at one half the gross amount payable in the event of a success- ful performance of the voyage. It is admitted that this rule is in some degree arbitrary ; but it is considered on the whole as equitable as any that can be adopted. Leavenworth v. Delafield, 1 Caine's New-York Rep. 573. 396 PART HI. CHAP. VIII. wazes, except in the single instance of the ransom of the ship (/). In this instance they are required to contribute in order to encourage resistance ; in other instances they are exempted from contribution, le?t the apprehension of personal loss should restrain them from the execution of the measures necessary to general safety and the peril and extraordinary hardships endured by them on these disastrous occasions well entitle them to an exemption from further distress. 15. LASTLY, as to the mode of contribution. By the Civil Law, the goods cast overboard were valued only at their invoice price or prime cost (g). A practice formerly prevailed iu this country to adopt this valua- tion, if the loss happened before half the voyage was performed, but, if it happened afterwards, then to value tve goods at the clear price, which they would have fetched at the place of destination (/i) ; and this prac- tice still exists in many places abroad (i) ; but here the last valuation is now adopted in all cases, where [347] the average is adjusted after the ship's arrival at the place of destination, and appears best to (/) Env-rigon, torn. 1. p. 642. contribuere debere aiunt." I)ig,\i. J'rt/JcA Ordinance, l:v. 3. tit 4. l)e 2. 2. 3. Loyers deta matelot,*it. 20.andFa- (g) Dig. 14. 2- 2. 4. lin the'von,\vhog-ivesthis construe- (A) JUalyne, page 113. and Mnl~ tion to the word ornnr* in the sen- lay, boots. 2. chap. 6. sect. 6. Well- tence ''si navis a piratis rednnpta woorf, tit. 21- git, Servius Ofilius, Labeo, omnet (i) Emerigon, torn. 1. p, 654, Vinniui in Peck turn, p. 220. But this rule applies only to cases of capture. And if a ship be so much injured by the perils of the seas as to render it ne- cessary to sell her abroad, the amount she actually and bona fide sold for, is the value for which she contributes on a general average, and not the four-fifths of her original value, as in case of capture. Bell v. Smith, 2 John. Rep. 98. OF GENERAL AVERAGE. 397 agree with the nature of the subject (fc) ; for although, as between the proprietor and the insurer of goods, the prime cost is the only value, the contract of insurance in that case being a contract of indemnity against loss, and not a contract for the security of gain ; yet in this case equity requires that the person whose loss has pro- cured the arrival of the ship at the place of destination, should be placed in the same situation with those, whose property has arrived at that place ; which can only be done by considering his goods as having arrived there al- so. But if the ship in consequence of any misfortune to be sustained by general average, be compelled to return to its lading port, and the average be immediately ad- justed, in this case the goods only contribute according to (he invoice price : for Ihe price of sale is unknown. And with regard to the loss of masts, cables, and other furniture of the ship, as the new articles purchased will in general be of greater value than the articles lost, it is usual to compound the difference by deducting one- third from the price of the new articles. 16. Supposing therefore a general average to be set- tled upon the ship's arrival at the port of destination, ac- cording to the principles before advanced, it is necessary in the first place to take an account of the sever- al losses, which are to be made good by contri- [ 348 ] bution : in the second place, to take another ac- count of the value of all the articles that are to contribute ; in which must be included the value of the goods, &c. thrown overboard, for otherwise the proprietors of those goods will receive their full value and pay nothing to- ward the loss. But as this will be most easily under- stood by an example in figures, I propose the following (k) It ii also the rule of the Ordinance of Wisbvy, art. 39. 398 PART ni. CHAP. VIII. case j wherein the reader will suppose that it became necessary in the Downs, to cut the cable of a ship des- tined for Hull ; that the ship afterwards struck upon the Goodwin, which compelled the master to cut away his mast, and cast overboard part of the cargo, in which operation another part was injured ; and that the ship, being cleared from the sands, was forced to take refuge in Ramsgate harbour to avoid the further effects of (he storm. Axou.vr OF LOSSES. Goods of A. cast overboard Damage of the goods ef B. by the jettison .... Freight of the goods cast } overboard --.----. 5 Price of a new cable, "p anchor, and mast - 300 C Deduct one-third - 1003 Expense of bringing the } ship off the sands - - 3 Pilotage and port duties going into the harbour and out, and commission to the agent, who made the disbursements - - Expenses there Adjusting this average - - - Postage .....--.-.. . 500 200 100 200 50 100 25 4 1 Total ef losses 1,180 OF ARTICLES TO CONTRIBUTE. . Goods of A. cast overboard - 500 ?ound value of good* of ~) K. deducting freight C 1,000 and charges j Goods of C. 500 Of D 2,000 Of E. 5,000 Value of the ship 2,000 Clear freight, deducting wages, victuals, &c. 800 Total of contributory values 1 1,800 [349] . Then 11,800 : 1,180 : : 100 : 10 : That is, each person will lose 10 per cent, upon (he value of his interest in the cargo, ship, or freight. OF GENERAL AVERAGE. 398 . Therefore A. loses - 50 B. - - 100 C. - 50 D. - - 200 E. - - 500 The owners - - 280 Total 1,180, which is the exact amount of the losses, Upon this calculation the owners are fo lose 280/., but they are to receive from the contribution 380/. to make good their disbursements, and 100/. more for the freight of the goods thrown overboard, or 480J. minus 280f. . They therefore are actually to receive 200 A. is to contribute 50/., but has lost 500/. ; therefore A. ") . flwmes,Num-133. (?) Shepherd W othertv. Wright, (m) 1 Mugens, 289. Sbower's Parl. Cas. 18 (; Dig. 14. 2. 2. See Wellwood, (r: Marthamv. Dutrey, Select tit. 21. ' Cases of Evid. 58. Birhiey & oth- (o) Liv. 3. tit. 8. Du Jet. art 21. ert v. Prestgrave, 1 E*st. 220. (p) Tom. 2 p. 211. OF GENERAL AVERAGE. 401 entitled to receive, against each party, that ought to pay, for the amount of his share. And in the case of a gen- eral ship, where they are many consignees, it is usual for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted (s). (s) So deposed by a gentleman Vander Deyl. Guildhall, Sit. be- very conversant with this business fore Lord Ellenborough, Ch. J. Dec. in the case of Myer 6? others v. 1803. 402 PART III. CHAP. IX. CHAPTER THE NINTH. OF STOPPAGE /JV TRJUYSITU. 1. V? HEN goods have been shipped upon credit, and the consignee has become a bankrupt, or failed, the law, in order to prevent the loss that would happen to the consignor by (he delivery of iheui, allows [352] him, in many cases, to countermand the de- livery, and before or at their arrival at the place of destination to cause them to be delivered to himself, or to some other person for his use. This is usually called stoppage in transitu. 2. This practice was first sanctioned and established in the Court of Chancery (), but has been since fre- quently recognized and carried into effect by the courts of law. It is founded on principles of natural justice and equity. But the law of England is in this respect more favorable to the transfer of property, the great sub- ject of commerce, and less attentive to the interest of the seller of goods, than the ancient Civil Law, or the modern law of many European nations, which is chiefly founded on the Civil Law. For the Civil Law did not in general consider the transfer of property to be com- plete by sale and delivery alone, without payment or security for the price, unless the seller agreed to give a general credit to the buyer for it ; but allowed the seller to reclaim the goods out of the possession of the buyer, (a) In the cases of Wiseman v. Prexcot, 1 Atk. 245 ; and D'Aqvil* Yandeput, 2 Vern. 203 : Snee v. v. Lambert, Ambler, 399. OF STOPPAGE IN TRANSITU. 408 as being still the seller's own property (6). And by the general law of France, in the case of insol- vency, " The seller, who has sold a thing, and [353] "still lies out of the money, which he was to "have for it, if he finds the thing, that he sold, in the *' hands of the buyer, may seize on it, and he is not "obliged to share it "*ith the other creditors of the " buyer. And it would be the same thing, nay, and " with much more reason, if the owner of the thing had " given" (delivered) " it to the debtor to sell for him" (c). Whereas by the general law of England, when goods have been delivered into the actual or constructive pos- session of the buyer ) they cannot be reclaimed (d), al- though if found remaining unsold in the hands of an in* solvent/ac/or, they may be reclaimed, because a deliv- ery to a factor does not of itself alter the property. 3, The law of England however will lend ils aid to carry into effect the more enlarged rule of equity, which exists in another country, upon a transaction taking place there, as appears by the following case : By the law of Russia, " If, in case of unpaid debts or " bankruptcies, any body has reason to suspect [ 354 ] " that the debtor or bankrupt has any thoughts "of making the creditor lose, and therefore loadetb on (*) Quod vendidi, non aliter sit person.who has sold goods expect- accipiemis, qiiam si aut pretium ing to be paid immediately, may, nobis solutum sit.aiit satis eo nom- if lie is not paid, retake the goods ine datum, vel etiam fidem habue even out of the possession of a sub- rimus emptori sine ulla satisfac- sequent purchaser, tione. Dig. 18 1.19. See also id. (rf) In case of a sale of land, if eod. tit. S3. and Dig-. 19. 1. 13. 8. the purchase money is not paid,the and 14. 4. 5. 18. Court of Chancery considers the (c) Domat's Civil Law, book 4. purchaser as a trustee for the sel- tit. 5. sect. 2. art. 3. See also the ler. Pollexfon v. Moore, 3 Atkins, notes of the same author on that 272, and see Blackburn v Gr e t view be thought that the person named in these two first cases, or who is the holder of the in- strument in the latter case, has authority to dispose of the goods, as he may think proper. In what follows the word consignee will be used to denote such a person, and the bill of lading spoken of is to be understood as falling within one of these three descriptions last mentioned, unless the contrary is point- ed out. In point of practice it frequently happens that the consignee, having received the bill of lading, sells the goods for a valuable consideration, or raises money upon them, before their arrival, and delivers over the bill of lading to a third person, who is wholly ignorant of the nature or terms of the consignment, and does not know that the consignee is not absolutely entitled to re- ceive and dispose of Ihem : under such circumstances a very important question of law has arisen upon the right of the consignor to countermand the deliv- [ 367 ] ery as between him and the person to whom the bill of lading has been thus delivered, without any fraud or collusion. OF STOPPAGE IN TRAN SITU. 417 Of the frequency of the practice to assign bills of lad- ing among merchants, and the convenience of the prac- tice in many cases, there is no doubt ; but not every mercantile practice of frequent use and even of general convenience is, or ought to become, in all its conse- quences, a part ot the law of the land ; for if such a rule were adopted, the law must in many cases depart from its own principles, and vary with the varying fashions of the times ; nevertheless the law does adopt into its own bosom many of the ancient customs and usages of merchants, and stretch forth its arm to assert and main- tain them, when they are found consonant to legal reas- on and legal wisdom, and most especially when they are calculated to promote honesty and to prevent fraud. And upon the subject now under consideration the ques- tion is, what extent of legal right the act of the consignee confers upon his assignee. The earliest mention of this subject in our law books is in the case of Evans v. Marlctt (m), in which Holt, Chief Justice, said, "the " consignee of a bill of lading has such a property that " he may assign it over." And Shower said, " that it " had been adjudged so in the Exchequer." But in this case the question upon the effect of such an assign- ment was not properly before the Court, and does not appear to have been discussed or argued ; and the case supposed to be referred to by Shower [ 368 ] has not been found. In the case of Snee v. Presc.ott, before cited, the right of the pawnee of the bill of lading as against the consignor was not noticed or in- sisted upon. In the case of Appleby v. Pollock, which was (wi) 1 Ld. Raym. 271. 12 Mod. Salkelddoes not contain this die- 156. 3 Salk. 290. but the report in turn. 57 418 PART in. CHAP. ix. tried before Chief Justice Lee at Guildhall (n) ; it ap- peared that one Brand shipped certain goods at Leith, and consigned them to one Stratlon in London. Slral- tun, as soon as he received the bill of lading, by indorse- ment thereon assigned the goods to the plaintiff for 160/., and soon afterwards became a bankrupt. Jlrand, hearing of the bankruptcy, took process out of some Court in Scotland to attach the goods in the hands of Pollock the master of the ship : but the ship having left Leith, the process was executed at sea. Upon the ar- rival of the ship at London, (he master refused to deliver the goods to the plaintiff Appleby, unless he would in- demnify him against the process in Scotland, and there- upon Appleby brought the present action to recover the value of the goods. At the trial of the cause the Chief Justice declared himself to be of opinion that the as- signment gave the plaintiff* a sufficient property to main- tain the action, if under the circumstances he was en- titled to do so. The general question upon the right of the consignor to stop the goods and counter- { 369 ] mand the delivery, an against an assignee of the bill of lading, does not appear to have been agitated : parol evidence was given, that by the law of Scotland if goods are arrested the holder must give se- curity not to part with them, and the defendant relied on the effect of Ihe process, by which these goods were attached : as to which the Chief Justice said, u if the '* process could have attached Ihese goods, it could only "have done so within the jurisdiction of the Court, and '* it does not appear that the place where the goods were () Trin. T. 21 Gen. 2. This been noticed in any of the subse- case, which is here quoted from two quent cases. In one of the notes the manuscript notes taken by different process is said to have issuedoat of persons, does not appear to have the Admiralty Court in Scotland. OF STOPPAGE IN TRANSITU. 419 " attached was within the jurisdiction of the Court ; "and it lay upon the defendant to make that out." And the Chief Justice therefore directed the Jury to find a verdict for the plaintiff to the value of the goods. In the case of Wright v. Campbell ( t{ t ermine any difference relating to salvage, if [ 395 ] "any such shall arise between the master of any (c) The Cinque Ports are Dover, along the coast of Sussex and Kent, Sandwich, Romney, Hastings, and the towns on the coast being all Hythe s and the two ancient towns, members of one or other of the are Wine helsea and Rye. Theju- Cinqut Ports . risdietion extends from Seaford 444 PART HI. CHAP. X. " vessel and the person or persons bringing such cable "and anchor ashore, which said persons the said Lord " Warden is hereby authorized and empowered from " time to time to nominate and appoint, and in case " any ship or vessel shall be forced from her cables and "anchors by extremity of weather, and leave the same "in any roads within the jurisdiction of (he Cinque "Ports, and the salvage cannot be adjusted between "the persons concerned, that then the same shall be de- "termined within the space of twelve hours by any one "or more of the said persons appointed as aforesaid; "any custom or usage to the contrary in anywise not- withstanding" (d). 10. It has been already noticed (hat the authority of the magistrates and other persons appointed to execute the two statutes of Queen Anne and George the Second does not extend to the Cinque Ports, and with regard to those ports, it is provided by the same statute of George the Second, that the Lord Warden of the Cinque Ports, the Lieutenant of Dover Castle, the Deputy Warden of the Cinque Ports, the Judge official and Commissary of the Court of Admiralty of (he Cinque Ports, [396] two ancient towns, and the members thereof, and all and every of them, and all and every person appointed by the Lord Warden pursuant to the before mentioned statute of George the First, shall be the persons to put in execution these several statutes within the jurisdiction of the Cinque Ports, two ancient towns, and members thereof, in the same manner, as any justice of peace, or other persons, are authorized to do in other places (e). (rf) 3 Get. 1. c. 13. a. 6. () 26. Get. 2. c. 19. tect. 10. OF SALVAGE. 445 It \9 generally understood that these wholesome statutes have not taken away the jurisdiction or au- thority, which previously belonged to any Court of Jus- tice ; but I have been thus particular in arranging and detailing their provisions, from a hope that a better knowledge of them may induce the masters of ships in distress to avail themselves of them ; instead of apply- ing for assistance to persons who are called ship-agents or ship-brokers, and thereby subjecting themselves, and their employers, to a great part, if net the whole, of the heavy charges from which the legislature has so studi- ously endeavoured to relieve them (/). The necessity of applying for assistance to the officers or persons named in the statute of Queen [ 397 ] Anne, is rendered more apparent by a very recent determination of the Court of King's Bench, and the facts which gave rise to it. The mate of a vessel in distress, in (he absence of the master applied for assist- ance to a person al Corves in the Isle of Wight, who ac- cordingly sent several small vessels and men, and un- shipped the cargo, and took it to Comes ; in the mean- time (he master arrived, and approved of what was do- ing. Some officers of the customs also attended, ami took an account of the goods. The proprietors of the (/) The French Ordinance so mode of settling the charges of the often quoted.contains an apparent- officers themselves, no custos cus- ly excellent set of regulations on todum ; and this defect has prob- thissubjeet, liv.4. tit. 9. desnau- ably occasioned the complaints frages. All vessels, &c. driven on which the commentator informs shore, whether belonging to sub- us, have been often made against jects or foreigners are taken into their conduct in many places. A the King's protection : the officers year and a day is the period allow- of the Admiralty- are the persons ed for reclaiming property, after appointed to preserve and take which it is to be sold for the be- charge of them, and pay the per- fit of the crown. But claims have sons.who assist in the salvage.and in fact been allowed after that who are to act under their orders, period, as Falin informs us. But there seems to be no proper 446 PART HI. CHAP. X. goods were dissatisfied with the claim made by this person for salvage ; and afterwards, but without his concurrence, caused an adjustment to be made by three justices of the peace named by themselves and (he col- lector of the customs at Corves. The question in Ihe cause was, whether this adjustment was binding: and the court held it not to be so ; considering the statute of Queen Anne as confined to the case of assistance ren- dered by the officers and persons therein named, and the statute of George the Second, as extending the provision to such assistance only as is given voluntarily [398] by persons not employed for that purpose (k). 11. I proceed in the next place to the con- sideration of salvage payable upon recapture. I have in a former chapter (i) spoken of the subject of capture, and of the alteration of properly (hereby oc- casioned. With a view lo (he subject more immediate- ly under consideration at present, it may be taken as a general proposition, liable only to one exception, which will be noticed hereafter, that the ships or goods of the subjects of this country taken at sea by an enemy, and afterwards retaken at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to their original proprietors upon pay- ment of salvage to the recaptors. With regard to the beneficial interest in the goods of an enemy taken at sea, it was anciently established that in the case of capture by ships in (be pay of (he King, (A) Baring W othert v. Day, 8 1,816/. 16s. "2d. The justices had East. 57. The learned judges in- allowed 714^. 19*. 4d. An arbitra- timated a hope that the attention tor to whom the case was referred, of the legislature might be drawn settled the salvage at 9891. lit. to this subject, and a remedy pro- 1 i d. something more than a moie- vided for a case like the present, ty of flay't charges. Day had charged for the salvage (i) Ante, part 1. ch. 1. sect. 7. OF SALVAGE- the King should have one-fourth, the owners of the ships another fourth ; and ihe other moiety be divided among the captors ; the admiral taking, if present, the share of two men in each vessel ; if absent, of [399] one only ; and in the case of capture by private ships not in the King's pay, the King should claim no part, but the captors take the whole, allowing, however, to Ihe admiral as much as the share of two men (/c). But these proportions were occasionally varied at the King's pleasure ; and Sir Matthew Hule informs us that in bis time the admiral had the third of goods taken by private men of war as bis fee, but in right of the King (/). The entire beneficial interest was first given to the cap- tors whether belonging to the royal navy, or private ships of war, by a statute passed in the reign of Queen Anne (m). This statute however contains no regulation of salvage or other provision in the case of recapture. During ihe short war with Spain in the reign of George the first, no legislative provision was made on the sub- ject of prize. Soon after the declaration of war against Spain in the thirteenth year of the reign of George the Second, and against France in the seventeenth and twen- ty-ninth years of the same reign, acts of parlia- ment (n), were passed on this subject, by each [400] of which the ships or goods of the King's sub- (fc) Black book of theAdmiraUy, 1649. c. 21. The distribution of 2. 19. 20. Clerke't Praxis, p. 163. prize3 settled by those Ordinances (Q flhte'sTreatise in three parts, and by the Ordinances of 1650. c, part 3 chap. 28. In Hargrave's 28. & 33. Law Tracts, p. 247. Two of the (m) 6 Jinn. c. 13. See Dr. Rob- Ordinances, passed in the time of inson's note in the case of the DEH the usurpation,mention"theren), and [401] afterwards with the French King(q), it was fixed at one-eighth, as well in the case of private ships as of those belonging to the royal navy ; except in the case of vessels set forth as ships of war, in which case as in the former statutes, it was fixed at one half. At the commencement, of the war, in the year 1793, the legislature fixed the rate of salvage at one-eighth for the royal navy, and at one-sixth for private ships; and in case of recapture by the joint operation of his Majesty's ships, and private ships, authorized the Judge of the (o) Scobell's Jlctt, A. D. 1648. c. (p) 16 Get. 3. c. 5. s. 24. 12. 1649. c. 21. and 1650. c. 28. (q) 19 Oca. 3. c. 67. . 44- v 33. OF SALVAGE. 449 Court to order such salvage as he should deem fit and reasonable ; but enacted that recaptured ships, set forth by the enemy as vessels of war, should wholly belong to the recaptors, and not be restored to the original owners (r). And by this last statute it is also provid- ed, that if a ship be retaken before she has been carried into an enemy's port, it shall be lawful for her, if the re- captors consent thereto, to prosecute her voyage, and the recaptors need not proceed to adjudication till six months, or the return of the ship to the port, from which she sailed : and by consent of the captors the cargo may be unloaded, and disposed of, before adjudication : and if the vessel does not return directly to the port of her departure, or the recaptors have had no opportunity to proceed to adjudication within six months, on account of the absence of the vessel, the Court of Admiralty shall, at the instance of the recaptors, decree restitution to the former owners, paying sal- [403] vage, upon such evidence as shall appear reas- onable, the expense of such proceedings not to exceed the sum of fourteen pounds (s). Similar provisions were made at (he beginning of the present war; and the same rate of salvage is fixed for his Majesty's hired armed ships, as for the royal navy (t). A convoying ship may be entitled to this salvage, for the recapture of a vessel under its protection taken in that situation, and effectually possessed by the enemy (u). (1) (r) 33 Geo. 3. c. 66. . 42. 41 &f 45. Geo. 3. c. 72. ttct7. (s} 33 Geo. 3. c. 66. *. 44. () The WIGHT, Ford, 5 Rob, (r) 43 Geo. 3-c. 160. sect. 39 fc A. R. 215. (1) No regulation is made by statute in the United States respecting salvage, except in the cases of recapture. The priu- 61 450 PART ra. CHAP. x. 12. It may be proper to raenlion in this place the practice of the Court of Admiralty, in the case of the property of the allies of this country, taken at sea by a common enemy, and retaken by the subjects of this country. For this purpose I cannot do better than use the words of the learned Judge, who now presides in that Court. " The maritime law of England" says Sir William Scott, " having adopted a most liberal rule of " restitution on salvage, with respect to the recaptured "property of i!s own subjects, gives the benefit of that " rule to its allies, till it appears that they act towards ciple of the English Courts of Admiralty (previous to their acts of parliament,) is adopted, of considering the property of goods captured completely, de vested only by a sentence ofcondem nation in a court of competent jurisdiction. 2 Burr. Rep. 694. 1208. The jus postliminii continues until such condemnation, and no longer. Hutson v. Guestier, 4 Cranch. Rep. 293. The act of Congress of the United States, 3. March, 1800, (5 U.S. L. 38. sect. 1 .)provides,that if the vessel or goods of any person, resident within or under the protection of the United States, be recaptured after a hostile capture before such vessel or goods shall have been condemned as prize, it shall be restored to the owner on payment of salvage, of one eighth part if recaptured by a public vessel, and of one sixth part if by a private vessel of the United States ; but if the recaptured vessel be armed, either before or after capture, then the salvage shall be one half part. If the recaptured vessel or goods belong to the United States, the salvage shall be one sixth part, if recaptured by a private vessel, and one twelfth part, if by a public vessel : and if the recaptured vessel be a public armed ve*sel,then one moiety if recaptured by a private vessel, and one fourth part if by a pub- lic ressel. Same act, sect. 2. OF SALVAGE. 451 '* British property on a less liberal principle ; in such a " case it adopts their rule ; and treats them "according to their own measure of justice" (a?). [403] In conformity to this rule the San Jago was not restored to the King of Spain, because retaken from his then enemy the French under circumstances, in which the Spanish Courts had condemned British property re- taken by \be Spaniards : and shortly afterwards two Portuguese ships were for the same reason condemned ; and several others at the same time restored (^), be- cause in the interval between the different captures, an Ordinance of the Court of Portugal had altered the rule of restitution in that country ; and they were restored upon payment of the rate of salvage established in Por- tugal ; vis. one-eighth to King's ships, and one-fifth to privateers. Of this rule of British jurisprudence, what- ever attempts may be made to shake it from motives of public policy or private interest, reason must now de- clare, and posterity will hereafter confess, that it is founded on the imraoveable basis of reciprocal justice (1). (x) In the case of the SANTA eloquence- CRUZ, 1 Rob. A. R. 63. The whole (/) Same case, is a most finished model of judicial (1) The act of Congress above cited (sect. 3.) adopts the same liberal rules in its previsions on this subject in the full- est extent. See in the Appendix this act at large. In cases of recapture, by the same act, the salvage, if given to a public armed vessel, is to be distributed as prize money ; if given to a private armed vessel then according to the agree- ment between the parties concerned ; if there be any, if not, then as the court having jurisdiction thereof shall appoint. 452 PART. HI. CHAP. X. 13. If Ihe property of a nation not engaged in hos- tility with th enemies of thia country, happen to be taken as prize by them, and retaken out of their hands by his Majesty's subjects; the probability of its con- demnation in the Courts of the country of the captors is to be considered : and unless there appear to be ground, In other cases of salvage the manner in which it shall be distributed is discretionary. The leading cases on this head in England are in case ' of derelict, The Aquila. 1 Rob. Adm. Rep. 37. ; of re- capture by unauthorized vessels, The San Bernardo, 1 Rob. Adm. Rep. 178. The Haase, 1 Rob. Adm. Rep. 286. The Amor Parentum, 1 Rob. Adm. Rep. 303. ; of rescue, The Two Friends, 1 Rob. Adm. Rep. 271. ; of services to vessels in dis- tress, The William Beckford, 3 Rob. Adm. Rep. 355. The Franklin, 4 Rob. Adm. Rep. 147. The Vrow Margaretha, 4 Rob. Adm. Rep. 103. In the United States in case of derelict, The Mary Ford, 3 Dallas' Rep. 188. ; and of service to vessel in distress, Mason & others, Libellants, v. Ship Blaireau, 2 Cranch. Rep. 240. On recapture of American Ships, Bas. v, Tingey, 4 Dall. Rep. 37. ; of neutral ships, Talbot v. Ship Amelia, 1 Cranch. Rep. 1. See also 2 Dall. Rep. 1. 1 Peters. Adm. Rep. 31. 70. 87. 278. 284. 424. If apprentices are salvors, their masters are not entitled to their share of the salvage, but it shall be paid to the appren- tices themselves. The right of the master to the earnings of his apprentice extends only to those in the ordinary way of his business, and not to those which arise from extraordinary services, which 'have no connection with his business. The Ship Blaireau, 2 Cranch. Rep. 240. The same point seems de- cided incidentally in The Beaver, 3 Rob. Adm. Rep. 292. OF SALVAGE. 458 on which it may be supposed that it would have been condemned in those Courts, it is to be re- [404] stored without the payment of any salvage. In the late war, the conduct of the cruizers and prize courts of France having given reason to apprehend lhat neutral property arrested by the former on the high seas, would in almost all cases be condemned by the latter, salvage was usually allowed to recaptors of neutral prop- erty out of the hands of the French by our Court of Admiralty, and such allowance was not thought unrea- sonable by the neutral merchants : but this was treated as an exception to the general rule, founded on particu- lar circumstances (s). (z) The CA.HLOTTA, Pasqnel, 5 Kreagh, 4 Rob. A. R. 156. Rob A. R. 54. The HUNTRESS, Stinson, 6 Rob. The ELEOHOBA CATHABIXA, A. R- 104. But while the policy of the law holds forth a liberal re- ward to all persons who fairly exert themselves to succour vessels in distress, it studiously denies it to those who on oc- casions of that nature are guilty of gross misconduct or fraud, and therefore if one of the salvors embezzle part of the goods saved, he forfeits his right to salvage. The Ship Blaireau, 2 Cranch. Rep. 240. See also as to this general doctrine, The Huntress, 6 Rob. Adm. Rep. 104. The Sansom, id. 410., and Talbot v. Ship Amelia, 1 Cranch. Rep. 1. S. C. 4 Dall. Rep. 34. 454 PART III. CHAP. XI. CHAPTER THE ELEVENTH. Of THE DISSOLUTION OF CONTRACTS FOR THE CAR. SIAGE OF GOODS IN MERCHANT SHIPS. 1. .HAVING thus considered the several species of contract made for the carriage of goods in merchant ships, and the various duties arising therefrom, I pro- ceed in the last place to the examination of the modes, by which contracts of this nature may be dissolved. And these are, either the voluntary act of the f 405 ] contracting parties, or some extrinsic matter happening after the making of the contract and before its completion. 2. It is a general rule that whatever derives ifs force and validity from the consent of parties, may by the mutual consent of the same parties be rendered null and invalid. There is indeed a technical rule of the law of England, which requires the discharge of a person from a contract to be made by an instrument of as high a nature as the original instrument of contract : and this rule is applicable to the contract of affreightment by charter-party under seal ; but in case of a discharge by mutual consent not expressed in this formal manner, the rule would at the utmost have no other effect than to render it necessary for the party to apply to a Court of Equity. In all such cases however prudence re- quires that the deed should be cancelled and deliv- ered up. But a merchant, who has laden goods, cannot insist up- on having them relanded, and delivered to hi'*- DISSOLUTION OF CONTRACTS. out paying the freight, that might become due for the carriage of 1hem, and indemnifying the master against the consequences of any bill of lading signed by him (a). Indeed a master who has signed bills of lading cannot with prudence deliver back the goods without having all the parts of the bill of lading delivered up to him, for if any one part has been transmitted [ 406 ] to a third person, such third person may have acquired an interest in the goods. 3, Another general rule of law furnishes a dissolu- tion of these contracts by matter extrinsic. If an agree- ment be made to do an act lawful at the time of such agreement, but afterwards, and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved. If therefore, before the commencement of a voyage, war or hostilities should take place between the state to which the ship or cargo belongs, and that to which they were destined, or commerce between them be wholly prohibited, the contract for conveyance is at an end (/>), the merchant must unlade his goods, and the owners find another employment for their ship. And probably the same principles would apply to the same events happening after the commencement and before the completion of the voyage, although a different rule is laid down in this case by the French Ordinance (c), as I have before observed (1). But if war or hostilities (a) 2 Eq. Ca. Ab. p. 98. Anon. (c) Liv 3. tit. 3. Fret. art. 15. (b) French Ordinance, liv. 3. tit. See before, part 3. ch. 7- sect. 5. 1. des charte-parties, art. 7. (1) If the port to which the ship is by the charter-party bound to proceed, be blockaded, this produces a dissolution of 456 PART m. CHAP. xi. break out between the place, to which the ship or cargo belongs, and any other nation, to which they are not destined; although the performance of the contract is thereby rendered more hazardous, yet is not the [ 407 ] contract itself dissolved, and each of the par- ties must submit to the extraordinary peril, un- less they mutually agree to abandon the ad\enture. So, if the government of the country, to which the ship and cargo belong, should prohibit the exportation of the particular commodities, that compose the cargo, or by the terms of the contract are destined to compose it, (as is sometimes done by all states with regard to provisions in a time of scarcity,) in this case also it geems that the law of the country would give no dam- ages 10 the owner against the merchant, who had been thus compelled by the law of the same country to aban- don his engagement. On the other hand, if a merchant hire a ship to go to a foreign port, and covenant to fur- nish a lading there, a prohibition by the government of that country to export the intended articles, neither dis- solves the contract, nor absolutely excuses a non-per formance of it (d) ; for the laws of one nation do not give effect to the positive institutions of another incon- ( EXETER, not. 43. Old Hamseatic Ordinance, 2. R;>b. A. R 261. The BEATER, art. 42. Hanseauc Ordinance of Grierjon. 3 Rob. A. R. 92. Roccus 1614. tit. 3. art. 7. (1) The same point is established in Mahoon v.The Glouces- ter, 2 Peters. Adm. Rep. 403., in Rice v. Polly and Kitty, id. 420., and in Weiberg v. The St. Oloff, id. 428. Hulle v. Height- man, 2 East. Rep. 145. Keanev. The Gloucester, 2Dall. Rep. 36. Hoyt. v. Wildfire, 3 John. Rep. 518. But the residue of the crew cannot claim more wages, al- though by the dismission of such mariner, the risk and labor becomes proportionally greater. Keane v. The Gloucester, 2 Ball. 36. There is a technical rule applicable to the courts of common /aw, which requires attention. I allude to the manner of stat- ing the demand of the mariner who is dismissed. It seems that if wrongfully dismissed, he cannot recover his full wages in an action, declaring generally for labor and services, but should in an action against the master specially state the injury whereby he was prevented from earning his full wages. See Hulle v. Heightman, 2 East. Rep. 145. And if by the ship's articles, the mariner is not to demand his wages until the end of the voyage^such form of action is indispensible, upon a wrongful dismission, as this act of the master is not considered as a recision of the con- tract, id. ibid. However in the case of Sigard v. Roberts, 3 Esp. N. P. C. 71., where the wages were not payable until the voyage was ended. Lord Eldon held, that the master having dis- missed the mariner, he was entitled to recover his wages in the EARNING AND PAYMENT OF WAGES. 475 adds, that in such cases the master shall not charge the owners with the payment (r). 1. b. In the discussion of the cases, that arose on the detention of the British ships in Russia by the late Emperor Paul in the year 1800, it was admitted in both Courts, that, in the ordinary case of an embargo, a sea- man hired by the month, and remaining with the vessel, has a right to his wages during the embargo, if the ship afterwards perform her voyage and earn her freight (d}. (2) The circumstances of that detention (c) Liv. 3. tit. 4 Lovers lies Ma- (tf) Beetle v- Thompson. 3 Bos. fc telots.zri. 10. Pull- 405. & 4 East. 546. common action for that purpose ; and said the voyage is then ended with respect to any man, when he is discharged from the ship, and then he is entitled to sue consistently with the arti- cles. See also Limland v. Stephens, 3 Esp. N. P. C. 269. See also Hoyt v. Wildfire, 3 John. Rep. 518., and Willendson v. The Forkoset, 1 Peters. Adm. Rep. 197. As to discharging mariners abroad, see the act of Congress, 28. February, 1803, sect. 1 & 3. (6 U. S. L. 206.) which reg- ulates the manner and circumstances under which mariners may with their own consent be discharged abroad, ante 165, note and appendix. Where foreign seamen are shipped at a foreign port in a for- eign ship, and in the course of the voyage are discharged, if the articles of shipping contain a clause that they shall not sue for their wages in a foreign country, but shall abide by the mari- time code of their own country, the courts of law in England will not sustain a suit for the wages. Gienar v. Meyer, 2 H. Bl. 603., cited post, p. 441., and see the note there. (2) See also Jones v. The Insurance Company, 4 Ball. Rep. 246., and Kingston v. Girard, 4 Call. Rep. 274. Marshall v. Montgomery, 2 Ball. Rep. 170. In this last case the point was directly decided by the court, conformably to the text. 476 PART IV. CHAP. II. were very peculiar. The cases will be more fully sta- ted, when I come to the consideration of the loss of wages (). 2. SECONDLY, it was determined before (he passing of either of the statutes, which regulate the service of sea- men in merchant ships, that a seaman, who was impress- ed from such a ship into the royal service, was entiiled to receive a proportion of his wages up o the time of impressing, the ship having afterwards arrived in [ 4*26 ] safety at her port of discharge (/). It has also been since decided lhat he is entitled to no more(g'). The first of those statutes expressly pro- vides, that a seaman belonging to any merchant ship, who enters into the service of his Majesty on board any of his majesty's ships, shall not for such entry forfeit the wages due to him during the term of his service in the merchant ship, nor shall such entry be deemed a desertion (/i). It has also been decided, that a seaman belonging to a privateer, who was to have a certain share of prices in lieu of vages, and who had engaged to serve full six months on pain of forfeiting such share, did not lose his share of a prize taken while he was in the privateer, by being afterwards impressed, and then accepting the bounty, and entering on board one of his Majesty's ships before the expiration of the six months (i). (l) (e)Chap. 3. of this part, sect.2. b. King's Bench, Trin T. 24 Geo. 3. (/. inggini v. Inglettn, 2. Ld. (A) '2 Geo. 2. c. 36. . 13. Raym. 1211. (*) Paulv. Eden in the King's (g) Clements v.Maybom, in the Bench, E. T. 25 Geo. 3. (1) Where a ship has been captured and a mariner taken a- way from the ship and afterwards the ship is rescued, by the crew,full wages have been decreed for the whole voyage to the EARNING AND PAYMENT OF WAGES. 477 3. If a seaman falls sick and dies during (be voyage, the laws of Oleron (), otWisbuy (/), and of the Hanse- Towns (in}, direct that his wages shall be paid to bis. heirs, in general words, without distinction as to the terms upon which he was hired : and it is not clear whether the payment thus directed, is to be understood of a sum proportionate to the time of his ser- vice, or of 'he whole sum that would have been [ 427 ] earned if he had lived to the end of the voyage. The French Ordinance distinguishes between the case of a hiring by the month t and a hiring for tbe voyage; and in the first case directs the payment of wages up to the day of the death of the seaman : in the last case, it directs the payment of half the stipulated sum, if a sea- man dies on the voyage outward, and the whole, if he dies on the voyage homeward (n). A similar rule had been laid down in the case of a hiring by the voyage, in Ob) Art. 7. (n) Liv. 3. tit. 4. Layers de (/) \rt. 19. Matelots. art. 13 & 14. (m) \rt.45. mariner taken away. So where a neutral mariner has been impressed from a neutral ship, and afterwards, escaped and re- joined his ship, or has offered to rejoin, but has been refused, full wages for the voyage have been decreed. On the contrary where a neutral mariner has been impressed and never rejoined the ship, either from necessity or choice, full wages have been denied. But pro rata wages seem due, in the one case to the time when the mariner might have rejoined the ship ; in the other to the time of impressment. Watson v.Ship Rose, 1 Pe- ters. Adm. Rep. 132. Hart v. Little John. id. 115. Rowland v. Lavinia, id. 123. Lingstrom v. The Schooner Hazard, 1 Peters. Adm. Rep. 384., affirmed in the Circuit Court of U. S. See post, 446. note. 47H PART iv. CHAP. n. the Ordinance of the Emperor Charles the Fifth (o), which regulated the commerce of the Low Countries ; and Cleirac and Valin (p) say, that the same rule was established by the Consolato del mare. There is no gen- eral decision on this subject in our law books: but the legislature appears by the provisions of a late statute to have considered that some wages might be owing to seamen who died in the course of a voyage () On the French Ordinance, (1) In Beale v. Thompson, 3 BOS.&, Pull. 425., Mr. Justice Heath said, " in case of a mariner's dying in the course of -the voyage, it should seem, that he is entitled to a proportional part of his wages unless he be excluded by the specific terms of the contract." See also Comyas on Contracts, 377. The expressions in the laws of Oleron, Wisbuy, and the Hanse Towns above cited, are as follows " If the vessel be ready for her departure,she ought not to stay for the said sick party, but if he recover, he ought to have bis full vages (il doit avoir son loyer tout comptant), deducting only such charges as the master has been at for him ; and if he dies his wife or next of kin shall have it." Art. 7. Oleron. " If a seaman falls ill of any disease, and tis convenient to put him ashore, he shall be fed, as he was aboard, and have somebody to look after him there ; and when he is recovered, be paid his vages (sera paye de les gages') ; and if he dies his wages shall be paid to his widow or heirs" (ses gages et loyers seront payes a sa vefue ou a ses heretiers. Art. 19. Wisbuy. "If he recovers his health, he shall be paid his EARNING AND PAYMENT OF WAGES. 479 case referred to were very particular, and the decision turned upon them. Before the passing of the statute (r) which limits the wages to be given [428] to persons for navigating a ship back from the (r) 37 Geo. 3- c. 73. s. 3. wages as much as if he had served out the whole voyage ; and in case he dies, his heirs shall have what was due to him." (II sera paye de ses gages tout ainsi comme, s'il avoit servy, et s'il meurl, ses heretiers, les retirerant entierement.) Art 45- Hanse-Towns. As to the meaning of these various expressions, different de- cisions have been had in the Courts of the United States. In Pennsylvania Judge Peters decided that the meaning was full wages for the whole voyage,and that therefore in the cases before him the administrator of the deceased should recover the wage^ for the whole voyage. Walton v- Ship Neptune, 1 Peters Adm. Rep. 142. A. D. 1800. Scott v. Brig Greenwich, id. 155. A. D. 1802. Jackson v. Sims, id. 157. A. D. 1806. And in this last case on appeal to the Circuit Court of the U. S., the decree was affirmed, Judge Washington upon solemn argument decid- ing that the full wages for the voyage were due. On the other hand, in a recent case in the District Court of Massachusetts, Judge Davis held that full wages in the laws above cited, meant only full wages up to the time of the death of the mariner, and therefore decided against a claim for wage? beyond that time. The learned Judge after a very minute and elaborate investigation of the various authorities, concluded by saying, " The examination which I have made on this subject has led me to an affirmative conclusion on the following points : " 1. That by general principles of law, on a contract of hire no compensation can be claimed beyond the death of the party hired. 2. That the laws of Oleron, of Wisbuy or of the Hanse- Towns do not provide, that in case of the death of a seaman on a voyage, wages are recoverable beyond the time of his death. 480 PART. IV. CHAP. II. West-Indies fo this country, one Cutler was hired as second mate on a voyage from Jamaica to Liverpool ; 3. That the intent of those ancient ordinances in the articles relied on in this case, was to determine the effect and operation of sickness or disability incurred in the service of the ship dur- ing the voyage, and to provide for the payment of wages, with- out deduction on that account, either to the seamen, if he recover his health, or to his heirs in case of his death. 4. That it does not appear that those ordinances have, in those countries where they are peculiarly authoritative, been used and applied as en- titling the heirs to wages for any time subsequent to the death of a seaman. 5. That approved commentators, such as Cleirac and Valin do not establish the construction contended for in support of this claim. 6. That the Consolato del Mare, a work of approved authority in case of an engagement by the month. and death on the voyage, expressly limits the wages to be re- covered by the heirs to the time of the death of the mariner. 7. That the law marine has not been otherwise understood and received in England, but in regard to an engagement by the month and death on the voyage, appears to be consonant to the Consolato del Mare. 8. That in Massachusetts, the usage has uniformly been to make payment of wages in such case only to the time of the death of the seaman, and the law has been considered as consonant to the practice." Natterstrom v. The Ship Hazard. District Court, A. D. 1809. The civil law provided that " he who has hired his services is to receive his reward for the whole time, if it has not been his fault, that the service has not been performed. Dig. law. 38. p. 58. By the common law anciently, no contract for wages was considered as apportionable. Bro. Apportionment, pi. 13. id. Laborers, pi. 48. id. Contract, pi. 31. But it seems that by the common law, as now understood, all laborers by the year or month, are entitled to wages up to EARNING AND PAYMENT OF WAGES. 481 and at Jamaica, the master subscribed and delivered to him ihe following note. "Ten days after the ship G. " P. myself master, arrives at Liverpool, I promise (o ".pay to Mr. T. Culler, the sum of 30 guineas, 11 provided he proceeds, continues, and does his <( duty as second mate in the said ship, from the time of their death. And Lawrence J. in Cutter v. Powell, 6 T. Rep. 320. said, " with regard to the common case of an " hired servant to which this has been compared ; such aser- " vant though hired in a general way, is considered to be hired " with reference to the general understanding upon the subject, " that the servant shall be entitled to his wages for the time he " serves, though he do not continue in the service during the " whole year." See also Worth v. Viner, 3 Vin. Abr. 8. 9. But if a mariner be at the time of his shipping afflicted with a mortal disease, of which he dies in the course of the voyage, it seems that he is not entitled to full wages. For at the time of shipment he was not able bodied, as the contract implied. Haeret lateri lethalies arundo. See Writer v. Ship Richmond, 2 Peters. Adm. Rep. 263. Where the mariner is sick, he is by the marine, law to be cured at the expense of the ship. But the act of the United States, 20. July, 1790, (1 U. S. L. 134. ch. 29.) sect. 8. hav- ing provided that the ship shall be furnished with a medicine chest and in default, that the master shall pay for all advice, medicine, and attendance of physicians, Judge Peters reluct- antly considered that upon the construction of the act, if a medicine chest were furnished, the medical advice must be paid for by the seaman at his own expence ; but that the oth- er expences were a charge upon the ship. Walton v. Ship Neptune, 1 Peters. Adm. Rep. 142. Hastings v. Ship Hap- py Return, id. under p. 255. note. 65 482 PART IV. CHAP. H. c< hence to the port of Liverpool. Kingston , July , " 1793." The ship sailed from Kingston on the 2d August, and arrived at Liverpool on the 9th of Octob Culler went on board the 31st of July, sailed in ship, and proceeded, continued, and did his duty second mate until bis death, which happened on the 2< September. It was proved, that the wages usually p to a second mate of a ship on such a voyage, if hit by the month out and home, were 41. per mouth ; t! when seamen were shipped by the run from Jamaica England, a gross sum was usually given ; and that 1 usual length of a voyage from Jamaica to Liverpool \ about eight weeks. The executrix of Cutter brought action against (he master, and it tvaa contended on I behalf, that she ought to recover a proportion of 1 wages for that part of the voyage that he lived, a served on board the ship. The Court of King's Bent before which this question was brought for decisii directed inquiry to be made as to the usage amc merchants, &c. in cases of this kind ; but [ 429 ] satisfactory information being obtained as to t usage, although such notes had been often giv the Court, upon consideration of the particular terms the note, and of the great excess of the sum lo be p; to Cutter, if he had performed the whole voyage acco; ing to those terms, above the usual rate of wages up a monthly hiring, decided that nothing was payable the partial service: declaring at the same time, tha the plaintiff could bave proved a usage to pay a p portional sum in si nilar cases their decision should lu been corformable tu the usage (s). () Cutter v. Po-aeU, 6 Ter, Rep. K. B. 320. EARNING AND PAYMENT OF WAGES. 483 in a subsequent case also it was taken for granted, t some wages were due to the mate of a West-India p, who had died on (he homeward voyage. The ster had, in pursuance of the directions of the statute fore mentioned (/), paid to the receiver of the sixpen- duly for Greenwich Hospital the aura of 9/. as the I amount of the wages due. The administratrix of 3 deceased, contending that more than 9/. was due, ought an action against the master, who insisted, that he had accounted upon oath according to the direc- >ns of the statute, the amount of the sum due, could t be questioned in such an action, but he must be ed for the penalty given by the statute, if his account as false. But the Chief Justice of the Court of Corn- on Pleas, (Sif James Mansfield) before whom the iuse was tried, and afterwards the whole Court, 3ld that the statute did not deprive the admin- [ 430 ] trail ix of her right to sue the master for all at was justly due beyond the sum paid to the officer, id as the Jury had found 'lid. to be due, she was al- wed to recover 16/. (u). 4. The payment of wages is generally dependent upon e payment of freight : if the ship has earned its freight, e seamen who have served on board the ship, have in e manner earned their wag.es. And as in general, if ihip destined on a voyage out r.nd home has deliver- her outward bound cargo, but perishes in the home- rd voyage, the freight for the outward voyage is due, in the same case the seamen are entitled to receive ir wages for the time employed in the outward voy- and the unloading of the cargo, unless by ihe terms ) 37 Geo. 3. c. 73- s- 5 k 7. () *trm*irong v. Smith,l Bos. Si Pull. JST. II. 299. 484 PART IV. CHAP. II. of their confract the outward and homeward voyages ate consolidated into one (.t). And if a ship sails (o several places, wages are payable to the time of the de- livery of the last cargo (1). Upon the same principle, where money had been advanced to the owners in part of Hie freight outward, and the ship perished before her arrival at the port of delivery, it was held that the sea- men were entitled to wa^es in proportion to the [ 431 ] money advanced (#). (2) If, as sometimes happens, a charter-party be so framed as Jo ex- clude the owners from demanding freight for the car- riage of the outward-bound cargo, unless the ship brings back her homeward-bound cargo in safety, it seems that such a special agreement, whereby Ihe owners consent to relinquish a benefit, to which tney are entitled by the general principles of law, ought not to affect Ihe sea- men, or deprive them of their general right, unless, they also by the terms of their contract make the like f (x) Jlnonymus, 1 Ld.Raym. 639. terdam, art. 214. 2 Magena, 113. 739. 12 Mod. 408- Ordin. of Rot- (#) dnon. 2 Show. 283. (1) The same law was recognized in Giles v. Ship Cynthia. 1 Peters, Adm. 203. And in Millett v. Stephens, cited in page, 433, note, post. See also Luke v. Lyde, 2 Burr. 882., and Judge Winchesters decision, cited 1 Peters. Adm- Rep. 186. And if the ship be lost on the homeward voyage, the wages up to the last port of delivery and half the time there are to be paid. Johnson v. Brig Walterstorff, 1 Peters. Adm. Rep. 215. (3) So Judge Winchester held that if a ship be lost before arrival at a delivering port, the wages are nevertheless earn- ed, if the freight be advanced, cited 1 Peters. Adm. Rep. 186. EARNING AND PAYMENT OF WAGES. 485 engagements on their part(l). Indeed it was once de- cided in (he Court of Admiralty that the seamen, who had navigaled a ship chartered by the East-India Com- pany, and which had delivered her outward-bound car- go in the East-Indies, but was lost in the homeward voyage, were entitled to recover wages for the outward voyage from the masier, although the owners had cove- nanted with the Company not to demand any freight beyond the imprest money, of which the seamen had received tbeir share, unless the ship returned home in safety ; and although the mariners themselves had given bonds to the master to the same effect with regard to their wages (s). And Chief Justice Holt is said to have decided a cause tried before him in the same man- ner (a). But this decision of the Court of Admiralty is reported to have been disapproved of by the House of Lords, who in a case arising out of it between the master and the owners, gave liberty to the [432] parties to appeal to the delegates against the deci- sion (6). Indeed I am at a loss to find any principle upon which the Court of Admiralty could have held these bonds to have been void, and have thought the seamen entilled to more than a proportion of the advance money, unless the bondd were deemed to have been obtained by op- pression or fraud. It has of late years been usual to stipulate by express terms in the articles of agreement signed by the seamen employed in such ships, that in (z) Buck v. Ra-utlinson, 1 Bro- 727. P- C. 102. (6) Buck v. JRaivlinson, 1 Bro. (a) Edwards v. Child, 2 Venn. P. C. 102. (1) The same point was established by Judge Winchester in a case cited in Peters. Adm. Rep. 186. PART IV. CHAP. II. case the ship shall by the danger of the sea, or any oth- er accident whatsoever, be disabled or lost during the voyage, for which she is destined, so that she do not return to and arrive at the port of London, the seamen shall not receive or claim any further wages than the impress money paid to them in advance, notwithstand- ing the ship shall at any time, before her being so disa bled or lost, have broke bulk, or delivered any goods, it any port or place whatsoever. And there is DO in- tance of a claim made by the seamen against (he terms >f ihis clause in the articles. 4. 6. By articles of agreement ir the usual form (c) nd containing the common stipulation, that "nosea- man shall demand or be entitled to his wages, or any ' part thereof, until the arrival of the said ship at her " above-mentioned port of discharge, and her 433] 4 ' cargo delivered ;" it was sfated that the ship was bound for !he ports of Madeira, any of the West-India islands or Jamaica, and to returu to London ; >.tid in consideration of tnc monthly or other wages herein mentioned, (he seamen severally undertook to )erform the above mentioned voyage, and the masler igreed wit!) and hired them for the tnid voyage. The hip sailed from London with a full cargo for Madeira, md delivered it (here, and took in a full cargo of wine : .nd sailed for the West-Indies. Pait of the wine was lelivered at Dominica, and another part at Kingston in Jamaica, and at this latter place the ship took in some ;overnraent stores for Port Anthonio in Jamaica, which ,he delivered there, and then proceeded to Martha Bray n the same island, where she delivered the remainder if the wine, and took in her cargo for London: for (c) Appendix, No. V- EARNING AND PAYMENT OF v-. which place she soon afterwards sailed, but was lost 01 the voyage home. One of the seamen who hid been hired at monthly wages, brought an action, contending that the voyage was divided into three distinct parts, vis. Madeira, the West-Indies, and home, and that as freight had been earned for the two first parts, he was entitled to his wages up to the time of the ship's depar- ture from Martha Bray. But the Court holding that the port of discharge mentioned in the articles meant London, determined that by reason of the special stipu- lation he could recover nothing (ade in foreig " parts, even though the ship should afterwards happt " to be lost," adds, 4 ' that the master shall be obliged t " pay lo his people eve.y time, if lliey require it, i " least the /in//;" " bu! that when any dispute arises " they si all not go to law in foreign parts, nor give on " a 1 other a: y :i ble, on lorfeiture of what wages o " monthly pay shall remain unpaid." By the article of agreement for service in a Dutch ship, which wei proved in evidence at the trial of an action, brought} this country by a seaman against the roaster fi wages (c), it was stipulated, that in case one or raoi (a) JPoihier, Louage des Mate- maintained although the vessel lia lots, tect 2. 3. been se-.zed by an English ship (6) 2 JHapejis, 113. 114- brongl't inio this country, and sol (c) Giemar i-.J'eyer 2 Hen Blac. here, nrder the authority of ill- 603 In conrqiiei:ceof thecorclud- fiovernnient ; the niaster and crcv ing 1 clause of thtae anicles, it was not being nude prisoners. held that the action could not be * Hut see Sigard v Roberts, 3 Esp. N. P. C. 71. cited post, p. 44 and L:inl:-.nd v StepJ-.ens, 3 Esp. N. P-C. 269. cited post, 451. See a) "VA ,!len!en v. Tlu Fors^ket, 1 Peiers Adm. Kep. 197 This last w the c se of a Danish seairun sui'g for wages, under articles like the ir-cni.oiiet 1 infiulJe v. He.ijh'maii, in the tex'. He alledged that he w di; charged , but the rri?> r agreeing totak' bimon board again^Iud Pcteis deciiiif d jiiriMi'd on ; hut he said w here ile voyaj:* had end. here, or bad been broken up, or the teamen had been grossly oppi* sed. EARNING AND PAYMENT OF WAGES. 501 complete voyages should be made out of the country, the master should al every second place of delivery se- cure to the seamen two-thirds of their wages by an or- der on his purser or correspondent at Rotterdam ; but thai none of the seaman should institute any suit against (he master in foreign countries. By the articles of agreement made at Altona for service in a Danish ship, which were proved in the like manner at another trirtl (csZ,oi/crs desMatehts, 10. 1 Sid- 179. Jtbernethy v. Land- art. 8. alt, Doug. 539. French Ordinance f (1) This doctrine seems universally admitted in our Courts. See Judge Winchester's opinion in 1 Peters. Adm. Rep. 186. note. And Judge Peters' opinion in Giles v. Brig Cynthia, id. 203. Johnson v. Sims, id. 215. Taylor v. The Cato, id. 54. See also Hoyt v. Wildfire, 3 John. Rep. 518. Brooks v. Dorr, 2 Massa. Rep. 39. Mason v. Ship Blaireau, 2 Cranch. Rep. 240. Dunnettv. Tomhagen, 3 John. Rep. 154. And if the ship and freight be insured and recovery of the loss had by tbe owner, this will not entitle the mariner to wa- ges in such case. M'Quirk v. Ship Penelope, 2 Peters. Adm. Rep. 276. Goodridge v. Peabody, cited ante p. 433, 508 PART IV. CHAP. IH. Bo if the ship become disabled on the voyage. Indeed if the ship be not sea-worthy at the outset, and the voy age be discontinued on that account, a seaman is not eotitled to wages, though perhaps be may maintain a special action against the owner for the recovery of damages (6). (1) It was mentioned in a preceding chapter that the payment of wages is divisible, and that if a ship has delivered its cargo atone place, the wages are so far due, although the ship be afterwards taken or sunk. But if a ship sail to one place in order to take in a cargo there, to be conveyed to another place, and having received the cargo accordingly, be taken before its arrival at the place of delivery, nothing is paya- ble to the seamen for navigating the ship to the first place, because no freight is thereby gained (c). (2) 2. I have mentioned in a former part of this trea- tise (d), that in some foreign countries, where ransom is not contrary to law, the seamen belonging to a ship (A) By Lord Ettenborough, Ch.J. J844,on a voyage to Newfoundland Eaken v. Thorn. 5 Espin N. P. for fish to be carried to Spain. cases, 6. (d) Jnte> part iii. chap, viii.s. 14 (c) Hemaman v. Baiuden, 3 Burr. (1) This doctrine is doubted in Hoyt v. Wildfire, 3 John. Rep. 518. ; and seems overruled by Judge Peters, in Hindman r. Shaw, 2 Peters. Adm. Rep. 264., where in a case of unsea- worthiness in the course of the voyage, he decreed wages up to the time when the mariner, who refused to go on in an- other vessel, left the ship. But he seemed to think that if the unseaworthiness had existed at the beginning of the voy- age, the merchant would be a delinquent, and the seaman might claim wages as in the common case of a voyage broken up by the fault of the owner. (2) But see on this point the note under p. 441 LOSS AND FORFEITDRE OP WAGES- 509 captured and ransomed, are bound to contribute a por- tion of their wages toward the ransom by way of gener- al average. This point is in itself of no importance in this country, because ransom ia prohibited by our law ; but the payment of salvage upon re- [445] capture is analogous to the payment of ransora, and was so considered by Sir Wm. Scott in a late case in the Court of Admiralty (e). In an action brought for the wages of a seaman after a capture and ransom of the ship, and which was tried before Chief Justice Holt, the Chief Justice is reported to have decided that the seaman was entitled to nothing, he being unable to prove that by the custom of merchants he was entitled pro raid, as was insisted on his behalf (/). 2. b. But it seems to be the better opinion, that in the case of capture and recapture, if the ship perform her voyage and earn her freight, a mariner who has not been separated from her, is entitled to his wages upon the footing of the original contract (g 1 ), subject perhaps to a proportionate salvage. In conformity to this opin- ion, at the trial of a cause before Lord Eldon, when his Lordship presided in the Court of Common Pleas, a seaman recovered his whole waa;cs af- [4-16] ter capture and recapture of the ship (/t). The () See on this subject of deser- Ordinance, liv. 2- tit. 7. Des Mat- tion, Ordin. of fVhbuy,*el. 61. of clots, art. 3. the Hanse-tmons, art. 43. Molloy, (q) 11 & 12 Will. 3. c. 7. . 17- book 2. chap. 3. sect. 10. French (r) 2 Geo. 2. c. 36. s. 3. (1) But every quitting of the ship is not desertion ; if it be done for a justifiable cause the mariner shall have his wages. Where a ship had been taken and brought into port, and the seamen went on shore, and on being required to go on board again, said that they had no victuals for the day, and only re- quested to stay till they had some ; and being left on shore, re- turned the next morning, and the master then refused to re- ceive them. Lord Eldon was of opinion that the conduct of the seamen did not amount to desertion : that their request was reasonable : that they had no intention of abandoning the ship, and that therefore the master should not be entitled to consider their refusal to go on board as desertion. Sigard v. Roberts, 3 Esp. N. P. C. 71. 518 PART IV. CHAP. III. In the c?se of certain mariners hired in Ihe Downs, for a voyage or run to the port of Hull at tnelve guin- eas each, who with the consent of the master, but against the p -i re orders of the owners, quitted the So in an action brought by the mate of a Swedish Ship against the captain for wages, it appeared that the plaintiff shipped for a voyage from Stockholm and back again, and that by one of the articles the captain was obliged under a penalty to bring back the crew to Sweden. During the voyage the captain beat the plaintiff several times, and degraded him to the situation of a common sailor before the mast, and the plaintiff at length quit- ted the ship. Lord Kenyon was of opinion that upon the fact* of the case the plaintiff had not deserted, and said, " There are reciprocal duties between master and servant. From the ser- vant is due obedience and respect ; from the master protection and good treatment. Desertion is a forfeiture of wages; but if the captain conducts himself in such a way as puts the sailor into that situation, that he cannot without damage to his per- sonal safety continue in his service, human nature speaks the language that the servant has a right to provide for his own safety. Desertion must be a voluntary act of the sailor, and not caused by any act of the captain. And in the present case the captain has made the dissolution of the contract necessa- ry, and justiBable on the part of the plaintiff. Limland v. Ste- phens, 3 Esp. N. P. Cas. 269. See also to the same purpose, Hulle v. Heightman, 5 East. Rep. 145. And where a ship was cast away in a perilous situation, and wholly incapable of pursuing the voyage, and the seamen quit- ted the ship without leave, and were arrested and imprisoned Judge Peters held that by the misfortune the voyage was brok- en up, and the conduct of the mariners was not desertion ; and discharged them from imprisonment Sims v. Mariner? of the Ship Woodrop Sims, 2 Peters. Adm. Rep. 393. LOSS AND FORFEITURE OF WAGES. 519 ship on the day after her arrival in the roadsted of that port, in the river Humber, the port being so full, that the vessel could not enter immediately ; the present learned Judge of the Court of Admiralty, decreed that the mariners had forfeited their wages. The ship actually entered the port whhin a week : [ 453 J it did not appear that at the time of the deser- tion, there was any prospect of a lasting impediment: and the learned Judge, without determining how long mariners were bound to wait in such a case, held, that they could not be entitled to their dismissal, " (ill after "some time of just expectation of the removal of the " difficulty" (s). By the articles of agreement usually signed in these cases, it is stipulated that the mariner shall not go out of the ship on board any other vessel, or be on shore un- der any pretence whatever, without leave, and that in default he shall be liable to the penalties of this act of parliament (/) : but this stipulation is merely referrable to the statute, and does not create a forfeiture of wages in a case where the statute has not inflicted it ; as in the case of leaving the ship after her arrival at her port of discharge in this country, although before she is moored (?i). This case is speci6cally provided for by another section of the same statute which, reciting that "seamen and mariners after their ship's arrival at their " unlivering port in Great Britain oftimes leave the " ships and vessels, before they are unladen, or before " the said seamen and mariners are discharged by the " masters or commanders of such ships or vessels," enacts, " that in case any seaman or mariner, not en- (*) The PEABI, Denton, 5 Rob. (M) Fronting v. Frost, 3 Bos. fe A. R, 224. Pull. 302. (0 Appendix, No. T. 520 PART IV. CHAP. HI. " (ering into Ihe service of bis Majesty, bis heirs and " successors, shall leave such ship or vessel to [454 ]" which he or they belong, before he or they " sball have a discharge in writing from the " master or commander, or other person having the " charge of such ship or vessel, he or they so leavin^ " such ship or vessel shall forfeit one month's pay" lo the use of Greenwich Hospital (a;). Although by this clause the discharge is required to be in writing, yet in an action brought by a seaman against the master for his wages, at the trial whereof it appeared that the plaintiff and several others left the ship under these circumstances, while she was under the command of the mate, and Ihe master insisted upon his right to make this deduction, but did not call the mate to prove that he had not given a discharge in writing ; it was held that the Jury might presume that the plaintiff bad re- ceived such a discharge ; this being the case of a penal- ty, in which the negative ought to be proved by the party insisting on the forfeiture, as the circumstances of Ihe case appeared to afford him the means of doing so (i/). The same statute authorizes the master or owner to deduct from the wages due to a mariner all the penal- ties and forfeitures incurred by the act, and to enter them in a book to be kept for that purpose, to be signed by (he master and two or more principal officers (s) : and it has been held that the master cannot make this deduction unless the forfeiture has been regularly en- tered in a book as the statute directs (a). Wilh respect to ships of the burthen of one hundred tons and upwards, employed in the coasting trade and (T) 2 Get. 2. c. 36. sect. 6. (z) 2 Geo. 2. c. 36. *. 9. (y~) Fronting v. Frott. 3 Bos. &, (a) Fronting v. Frost, 3 P.os. 'k Pull. 302. Pull. 302. LOSS AND FORFEITURE OF WAGES. 521 going to open sea ; if a seaman, having signed the re- quisite agreement, neglects or refuses to proceed on the intended voyage, he forfeits to the owners all the wages due to him at the time ; but the forfeiture for desertion afterwards, and before the voyage or voyages agreed upon, or upon which such ship shall have proceeded, shall be completed, and the cargo of such ship deliver- ed, or before the seamen shall have a discharge in writ- ing from the master, Sec. is only of one month's wages to the use of Greenwich-Hospital (6). In all cases a seaman, who wilfully absents himself from the ship without leave, forfeits to the use of Green- wich Hospital, two days pay for each day's absence (c). Absence occasioned by the power of a foreign country, in which the ship may happen to be, without any fault on the part of the seaman, does not work any forfeit- ure (d). In the coasting trade, the statute directs, that if a sea- man is hired by the voyage, and the period of the voy- age agreed upon exceeds one lunar month, the forfeiture of one month's pay shall be account- [ 456 ] ed a forfeiture of a sum of money bearing the same proportion to the whole wages, as a lunar month shall bear to the whole period of the voyage; and that the forfeiture of two days pay shall be computed in the same manner. If the whole period of the voyage does not exceed one lunar month, the forfeiture of one month's pay is to be accounted a forfeiture of the whole wages contracted for : and the like as to the forfeiture of two days pay, if the voyage does not exceed two days (c). (A) 31 Geo. 3. c. 39- sect- 3 & 4. (d) Beale v. Thompson. 4 East (c) 2 Get. 2- c. 36. 5. & 31 546- Get, 3. c. 39- 4. () 31 Geo. 3. c- 39. . 9. 70 5'2'2 PART IV. CHAP. HI. In addition to this forfeiture of wages earned by ser- vice in the ship, from which a seaman deserts, the leg- islature lias further punished deseitton from a British ship in the West-Indies, wilh forfeiture of all the wages, to which he might ofherwise he entitled for the voynge roade in the ship, on board of which he shall enter im- mediately after such desertion (f). I have already mentioned that entry into the service of his Majesty is not deemed a desertion, nor followed by the forfeiture of wages ("). ( 1 ) (/) 37 Gee. 3. c. 73. s. 1. (,) Chap. 2. of this part, sect. 2. by the statute there cited. (1) The act of Congress, 20. July, 1790. ch. 29. (1 U. S. L. 1 34.,) sect. 2. provides, " that at the foot of every such contract there shall be a memorandum in writing of the day and hour " on which such seaman or mariner, who shall so ship and sub- ; scribe, shall render themselves on board to begin the voyage ;; agreed on. And if any such seaman or mariner shall neg- ;t lect to render himself onboard the ship or vessel, for which ' he has shipped at the time mentioned in such memorandum i; and if the master, commander, or other officer of the ship or vessel, shall, on the day on which such neglect happened. " make an entry in the log-book of such ship or vessel, of the ;i name of such seaman or mariner, and shall in like manner k note the time that he so neglected to render himself after the u time appointed,everysuch seaman or mariner shall forfeit for ' every hour, which he shall so neglect to render himself, one " day's pay according to the rate of wages agreed upon, to be " deducted out of his wages. And if any such seaman or ma- l riner shall wholly neglect to render himself on board of such " ship or vessel, or having rendered himself on board, shall af- u terwards desert and escape, so that the ship or vessel proceed " to sea without him. every such seaman or mariner shall for- LOSS AND FORFEITURE OF WAGES. 523 4. The legislature has also punished with the forfei- ture of wages the offence of neglecting or refusing to " feit and pay to the master, owner, or consignee of the said " ship or vessel, a sum equal to that which shall have been paid " to him by advance at the time of signing the contract, over " and besides the sum so advanced." And sect- 5- provides " that if any seaman or mariner,who shall have subscribed such " contract as is herein before described, shall absent himself " from on board the ship or vessel, in which he shall so have 41 shipped without leave of the master or officer commanding " on board, and the mate or other officer having charge of the 44 log, shall make an entry therein of the name of such 44 seaman on the day on which he shall so absent himself, and u if such seaman or mariner shall return to his duty within for- 44 ty eight hours, such seaman or mariner shall forfeit three 44 day's pay for every day, which he shall so absent himself, to 44 be deducted out of his wages ; but if any seaman or mariner 44 shall absent himself for more than forty eight hours at one " time, he shall forfeit all the wages due to him, and all his " goods and chattels which were on board the said ship or vessel^ or 44 in any store where they may have been lodged at the time of his 44 desertion to the use of the owners of the ship or vessel, and 44 moreover shall pay to him or them all damages," &,c. &c. On these two clauses a decision has been recently made in Massachusetts. The mariner after having shipped did not ren- der himself on board,and the ship proceeded to sea without him. It was contended that both clauses were in pari materia and merely cumulative, and that therefore such desertion occasion- ed a forfeiture of all the goods and chattels of the mariner on board the ship But the court held that the first section appli- ed exclusively to absence and desertion in the port of departure ; and the last section exclusively to absence and desertion in the 524 PART IV. CHAP. IH. assist the master itt defending the ship against the at- tack of pirates (/i). It seems also that neglect of duty, (A) 22 Sf 23 Car. 2. c. 11. . 7. course of the voyage at any other port. Cotel v. Hilliard,Essex, November Term, S. J. C., A D. 1808 MSS. The entry in the log-book of the absence or desertion is in- dispensable. If an absence is entered, it must be also stated whether -anth or without leave ; stating that the seaman left the ship is not sufficient : and no parole evidence can be admitted to prove the desertion. It must be proved by an entry at the time by the proper officer. Lord v. Kimball, Essex, April Term, S. J. C., A. D- 1804. Cor. Dana, C. J. and Strong J. MSS. So in Malone v. Brig Mary, 1 Peters- Adm. Rep. 139., Judge Peters said, that he always considered the entry in the log- book evidence of the fact of desertion, but not conclusive, though indispensably necessary. S. P. Whitton v- Brig Commerce, id. 160- Jones v. Brig Phoenix, id. 201. Thompson v. Ship Phila- delphia, id. 210. But even if the seaman has been absent more than forty eight hours and has deserted, the forfeiture of his wages is re- mitted by receiving him again on board. It operates as a release. Whitton v. Brig Commerce above cited. This seems consonant with the rule of the common law .that where a servant i? hired by the year and deserts, and he returns and is received by hi* master, he shall be entitled to his wages. As Lord Hardwicke said, " it is always esteemed a dispensation and works in the nature of a remitter." Castlehunt v.Syford, 1 Burr. Sett.Cas.68. This is the general rule, but where a mariner has neglected to render himserf on board at the time appointed according to the provisions of sect. 2. above quoted, the receiving him on board is not a release of the penalty. This is an exception from the LOSS AND FORFEITURE OF WAGES. 525 disobedience of orders, habitual drunkennesss, or any cause, which will justify a master in dis- [ 457 ] charging a seaman during the voyage, will also deprive the seaman of his vages (t). (2) (i) See the judgment pronounc- of Robinet v. The aJiip EXETER 2 ed by Sir William Scott, in the case Rob. A. R- 261. very nature of that section, for otherwise it would be nugatory. Malone v. Brig Mary, above cited. The wages which are forfeited by desertion, are the wages which are already earned ; but the wages for the section of the voyage unfinished are not included, they not being earned until the ship arrives at her port of delivery- Whitton v. Brig Commerce, note under page 162. (2) This seems to be universally recognized as the marine law. But although the seamen conduct improperly, yet by the marine law, their offences so far as they affect contracts are pardoned on repentance, compensation or offer of amends and return to duty. Public policy and private justice as it is fit they should, here move together. To this effect are Art. 25. of laws of Wisbuy., and art. 13- of laws of Oleron. Atkins v. Burrows, 1 Peters. Adm. Rep. 244. Whitton v. Brig Com- merce, 1 Peters. Adm. Rep. 160. incase of desertion. Thornc v. White, id. 168- in case of an assault and battery of the mas- ter, and Black v Ship Louisiana, id. 268. in case of gross neglect. Relf v. Ship Maria, id. 186. in case of mutinous and rebellious conduct. Dixon v. Ship Cyrus, 2 Peters. Adm. Rep. 407. in case of disobedience. And Judge Davis, in a recent case in Massachusetts where the libellauts bad been convicted of an " endeavour tomake a revolt," (1 U. S. L. 100. ch. 9. sect 12.) held that a promise of forgiveness of the master, restor- ed the mariners to their wages. Johnson & others v. Ship Sliza, November, A. D. 1807. MSB. 626 TART. IV. CHAP. III. 5. If the cargo be embezzled or injured by fhe fraud or negligence of ihe seamen, so that the merchant has a right (o claim a satisfaction from the master and owners, they may by the custom of merchants deduct the value thereof from the wages of the seamen, by whose misconduct the injury has taken place (fc). And the last proviso introduced into the usual agreement (/) signed by the seamen, is calculated lo enforce this rule in the case of embezzlement either of the cargo, or of the ship's stores. This proviso however is lo be con- strued individually, as affecting only the particular per- sons guilty of Ihe embezzlement, and not the whole crew (m). Nor, as it seems, is any innocent person liable to contribute a portion of his wages to make good the loss occasioned by the misconduct of others (). (2) (fc) MoUoy, book 2. rhap. 3- sect. (w) Thompson v. Collins, 1 Bos. 9. 2 Show. 167- 1 Ld. Ra>m. 650, & Pull. N. R. 3*7. (/) See Appendix, No V. (M) The same case. The same doctrine seems supported by the opinion of the co' rt in Beale v. Thompson, 4 East. 546. See also The King r. Castiechurch, 1 Burr. Sett. Cas. 70. and The King v. Eaton, id. 48. If a person be hired as a mate, and from incapacity or ill conduct, be disgraced to the mast, a deduction of his wages will be allowed by the Court of Admiralty, Mitchill v. Ship Orozembo, 1 Peters. Adm. Rep. 250. (2) In Lewis v. Davis, 3 John. Rep. 17., where goods had been stolen in the night time from a ship, the crew being then on shore by leave from the commanding officer, the court were of opinion that the crew were not bound to contribute to the Ics- . ChiefJusticeKent in delivering the opinion of the court said, " admitting the rule of the maritime law to be that mariners are LOSS AND FORFEITURE OF WAGES. 527 to contribute out of their wages to the damages arising from embezzlements by each other during the voyage, yet if negli- gence be not imputable to them, and the circumstances of the case do not fix the presumption of embezzlement upon any of the crew, they ought not to contribute. Molloy does not state the rule on this subject with much precision, nor is he of much authority ; but he rather seems to place it on the ground of fault or negligence ; and even the limited extent to which he carries it in this instance, has been recently questioned or de- nied by the court in Thompson v. Collins, (1 New Rep. 347.) On the other hand the mutual responsibility of seamen has been carried to a greater extent in the decrees of the District Court of Pennsylvania , 1 Peters. Adm. Rep. 243.) and further, I ap- prehend, than in any of the marine ordinances annexed to the reports of those respectable decisions." In Crammer v. Ship Fair American, alluded to in the above case, Judge Peters held that where embezzlement is fixed on some of the crew ; yet all are bound to contribute ; and that no one is to be excused from this general contribution, though absent from the ship, and not in a situation to be capable of assisting in the plunder. See also v. Ship Kensington, 1 Peters. Adm. Rep. 239- Knap v. Brig Eliza and Sarah, id- 200- However in a case of embezzlement where it could not be as- certained by whom or when committed. Judge Davis decided that all the seamen were liable to contribute to the plunderage so far as it comprehended property of the owners, but not of the master. An appeal was entered, but the decision was finally acquiesced in. Bradish v. Ship Friendship, September, A. D 1804- District Court, Massachusetts, MSS- It seems also that the admiralty courts will deduct from the seaman's wages all contributions for casks stove by negligence, and all other damages sustained by their misconduct. Wilson y. Belvidere, 1 Peters. Adm. Rep. 288- Thome v. White, id. 168- But the owner cannot retain the wages to answer con- tingent damages. v. Ship Washington, id- 219. 528 PART IV. CHAP. IV. CHAPTER THE FOURTH. OF PROCEEDINGS TO OBTAIJf TBB PATMEJVT OF WAGES. O.AVING, in the three preceding chapters, consid- ered the contract for service on board a raer- [ 458 ] chant ship ; the cases, in which the remunera- tion of such service is due either wholly or in part ; and those, in which it is lost, or forfeited ; I pro- pose in this last chapter to treat of the means of obtain- ing this remuneration by legal process. 1. According to the observation made in a former part of this treatise (a), the jurisdiction of the Courts of Common law can in this case be exercised only by suit against the person ; but the jurisdiction of the Court of Admiralty may be exercised by process against the ship. In this Court alone therefore that principle of the maritime law, which holds the ship in specie to be subject to the claim of wages earned by service in it, can be carried into effect. The Court of Admiralty was originally constituted for the adjudication of causes and disputes arising upon the high sea, and within the juris- diction of the Lord High Admiral, whose deputy the Judge of that Court formerly was. The proceedings therein, being according to the course of the Civil Law, appear to have been very unpopular in ancient times ; and two statutes were made in the reign of King Rich- ard the Second, upon the complaint of the Commons of (a) Part 2. ch- 3. sct. 25. ACTIONS FOR WAGES. 529 England, to define the limits of its jurisdiction ; by the first of which it is " accorded and assented, that the " admirals and their deputies shall not meddle from " henceforth of any thing done within the realm, but " only of a thing done upon the sea, as it hath " been used in the time of the noble prince [ 459 ] " King Edward grandfather of our Lord the " King that now is :" (6) by the other, " It is declared, " ordained and established, that of all manner of con- " tracis, pleas, and quarrels, and all other things, aris- " ing within the bodies of counties, as well by land as " by water, and also of wreck of the sea, the Admiral's " Court shall have no manner of cognizance, power, " nor jurisdiction"(c). Considering these statutes with reference to the present subject, it is evident that, if ihe seaman's claim to wages he in reality founded on the performance of hia service in the navigation of a ship on the high sea, ihe Court of Admiralty must have cognizance of the claim ; and on the other hand that, if the claim be in reality founded on Ihe contract made for performance of such service, and such contract be, as it usually is, made on shore, or in a port or river, within the body of a county, the Court of Admiralty can have no cognizance of it. In this view of the subject, it is difficult to distinguish the case of the master from that of the persons employed under his command ; the na- ture and place of the service, and the place of the hiring, are in both cases usually the same. Nevertheless a dis- tinction has long been made between then, and is now become a settled rule of law. In pursuance of this dis- tinction the seamen have now in ordinary cases a three^ (6) 13 Rich. 2. st. 1. c. 5. (c) 15 Rich. 2. c. S. 71 330 PART IV. CHAP. IV. fold remedy, agaiust (he ship, the owners, and [468] the master ; the master, whether appointed to that office at the commencement (d), OP succeed- ing to it in the course (e), of the voyage, can only sue the owners personally in a Court of Common Law (1). But as he generally receives the freight and earnings of the ship, and may pay himself out of the money in bis hands, he has not often occasion for the aid of a Court of Justice to obtain his right. The suit of the seamen in the Court of Admiralty is frequently spoken of as ao escepfed rase (/), and an indulgence granted to them on account of the convenience and advantage of pro- ceeding in a Court, in which all may join in one auit, and payment may he obtained out of the value of the ship; and of the presumption that they, wbo contract with the master, contract wilh him on Ihe credit of the ship: whereas the master, who contracts with the own- ers, is presumed lo trust to their personal credit (2). !' ,. and C. D * \ Signed, sealed, and delivered, where ) c ff no stamped paper is to be had. \ j v In the presence of ) In this bond the occasion of borrowing the money is not express- ed, but ihe money was in reality borrowed to refi' the ship, which be- ing on a voyage from Bengal to London was obliged to put back to Pomb'iy to repair- See Tfie EXETER, Whitford, 1 Rob A. R. 176. The occasion therefore of borrowing the money gave the lender the security of the entire interest of he ship. But this bond, although ex- pressed to be executed by the mas r er for himself and the other part- owner, would not bind the other part-owner personally, unless be bad by a previous dted authorized the natter to execute such a bond for him. See part 3. ch. 1. sect. 2. No. II. FORM OF A BOTTOMRY BILL, 1 O ALL MEN TO WHOM THESE PRESENTS SHALL COME. I, .2. B. of Bengal, mariner, part-owner and master of the ship called the Exeter, of the burthen of five hundred tons and upwards, now riding at anchor in Table- Bay at the Cape of Good Hope, send greeting : WHEREAS I, the said Jl. B. part-owner and master of the aforesaid ship called the Exeter, now in prosecution of a voyage from Bengal to the port of London, having put into Table-Bay for the purpose of procuring provisions and other APPENDIX. No. II. 545 supplies necessary for the continuation and performance of the voyage aforesaid, am at this time necessitated to take up upon the adventure of the said ship called the Exeter, the sum of one thousand pounds sterling monies of Great Britain, for setting the said ship to sea, and furnish- ing provisions and necessaries for the said voyage, which sum C. D. of the Cape of Good Hope, master attendant, hath at my request lent unto me, and supplied me with at the rate of twelve hundred and twenty pounds sterling for the said one thousand pounds, being at the rate of one hundred and twenty-two pounds for every hundred pounds advanced as aforesaid, during the voyage of the said ship from Table Bay to London. NOW KNOW YE, that I, the said A. B. by these presents, do, for me, my executors, and adminis- trators, covenant and grant to and with the said C. D. that the said ship shall, with the first convoy that shall offer for England after the date of these presents, sail and depart for the port of London, there to finish the voyage afore- said. And I, the said A. B. in consideration of the sum of one thousand pounds sterling to me in hand paid by the said C. JD. at and before the sealing and delivery of these presents, do hereby bind myself, my heirs, executors and administrators, my goods and chattels, and particularly the said ship, the tackle and apparel of the same, and also the freight of the said ship which is or shall become due for the aforesaid voyage from Bengal to the port of London, to pay unto the said C. JD. his executors, administrators, or assigns, the sum of twelve hundred and twenty pounds of law- ful British money, within thirty days next after the safe arrival of the said ship at the port of London from the same intended voyage. AND I, the said A. B. do, for me, my executors, and ad- ministrators, covenant and grant to and with the said C. D. his executors and administrators, by these presents, that I, the said A. B. at the time of sealing and delivering of these presents, am a true and lawful part-owner and master of the said ship, and have power and authority to charge and engage the said ship with her freight as aforesaid, and that the said ship, with her freight, shall at all times after the said voyage, be liable and chargeable for the payment of the said twelve hundred and twenty pounds, according to the true intent and meaning of these presents. AND lastly, it is hereby declared and agreed by and between the said parties to these presents, that in case the 73 546 APPENDIX. No. III. said ship shall be lost, miscarry, or be cast away before her arrival at the said port of London from the said intend- ed voyage, that then the payment of the said twelve hun- dred and twenty pounds shall not be demanded, or be re- coverable by the said C. D. his executors, administrators, or assigns, but shall cease and determine, and the loss thereby be wholly borne and sustained by the said C. D. his executors, and administrators, and that then and from thenceforth every act, matter, and thing herein mentioned on the part and behalf of the said A. B. shall be void, any thing herein contained to the contrary notwithstanding. IN WITNESS whereof the parties have in- terchangeably set their hands and seals to four bonds of this tenor and date, one of which being paid, the others to be null and void. At the Cape of Good Hope, this 1 5th day of November, in the year of our Lord one thousand seven hundred and ninety-seven. Vitness, CE.F. IG.H. (I. K. A. B. (L.S.) No. III. THE FORM OF A RESPONDENTIA BOND ON A VOYAGE TO THE EAST INDIES. ALL MEN by these presents, that we, James Pe- ter Fearon, commander of the ship Behidere, in the service of the honourable East-India Company, and Peter Douglas of Fitzroy-square, are held and firmly bound to Hans Busk of Nau Broadstreet, London, merchant, in the sum or penalty of fifteen hundred pounds of good and lawful money of Great-Britain, to be paid to the said Hans Busk, or to his certain attorney, executors, administrators, or assigns ; to which payment well and truly to be made, we bind our- selves, jointly and separately, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, dated this fourth day of May, in the forty-first year of the reign of our Sovereign Lord George the Third, bjr the grace of God, of the united kingdom of Great Britain APPENDIX. No. III. 547 and Ireland King, defender of the faith, and in the year of our Lord one thousand eight hundred and one. WHEREAS the above-named Hans Busk has, on the day of the date above-written, advanced and lent unto the said James Peter Fearon and Peter Douglas, the sum of seven hundred and fifty pounds, upon the goods and mer- chandizes and effects laden and to be laden on board the good ship or vessel called the Behidere, of the burthen of 987 tons or thereabouts, now riding at anchor in the river of Thames, outward-bound to China, and whereof James Peter Fearon is commander, by his acceptance of a bill of exchange to that amount at four months date for the ac- count of them the said James Peter Fearon and Peter Doug- las : NOW THE CONDITION of this obligation is such, that if the said ship or vessel do and shall with all con- venient speed proceed and sail from and out of the said river of Thames on a voyage to any port or place, ports or places in the East Indies, China, Persia, or elsewhere be- yond the Cape of Good Hope, and from thence do and shall sail, return, and come back into the said river of Thames at or before the end and expiration of thirty-six calendar months, to be accounted from the day of the date above written, and there to end her said -intended voyage (the dangers and casualties of the seas excepted) ; and if the said James Peter Fearon and Peter Douglas, or either of them, their or either of their heirs, executors, or adminis- trators, do and shall, within thirty days next after the said ship or vessel shall be arrived at her moorings in the said river of Thames from her said intended voyage, or at or upon the end and expiration of the said thirty-six calendar months, to be accounted as aforesaid (which of the said times shall first and next happen), well and truly pay or cause to be paid unto the said Hans Busk, his executors, administrators, or assigns, the full sum of one thousand and twenty pounds of lawful money of Great Britain, together with thirteen pounds ten shillings of like money per calendar month for each and every calendar month, and so propor- tionably for a greater or lesser time than a calendar month, for all such time and so many calendar months as shall be elapsed and run out of the said thirty-six calendar months over and above twenty calendar months, to be accounted from the day of the date above written, or if in the said voyage, and within the said thirty-six calendar months to be accounted as aforesaid, an utter loss of the said ship or 548 APPENDIX. No. IV. vessel by fire, enemies, men of war. or any other casual- ties shall unavoidably happen, and the said James Peter Fearon and Peter Douglas, their heirs, executors, or ad- ministrators, do and shall within six calendar months next after such loss, well and truly account for (upon oath if re- quired) and pay unto the said Hans Busk, his executors, administrators, or assigns, a just and proportionable aver- age on all the goods and effects of the said James Peter Fearon carried from England on board the said ship or vessel, and the net proceeds thereof, and on all other goods and effects which the said James Pettr Fearon shall acquire during the said voyage for or by reason of such goods, merchandizes, and effects, and which shall not be unavoidably lost, then the above written obligation to be void and of none effect, else to stand in full force and virtue. No. IV. THE FORM OF AN INSTRUMENT OF HYPOTHE- CATION OF SHIP AND CARGO. JV NOW all to whom this instrument of bond and bill of maritime risk and bottomry may come, that in the year from the birth of our Lord Jesus Christ, 1801, on the 31st day of the month of January, in the city of Lisbon, in my office personally appeared Jacomo Ma:-ola. captain of the Imperial ship called the Gratiludine, whom I know to be the real person ; and he declared to me the notary in the presence of the witnesses hereinafter mentioned, that within twenty-four hours after the arrival of his said ship at London, or any other port, and previous to beginning to make any delivery of the cargo at the port aforesaid. or any other port, that he the captain or whomsoever may act in lieu of him, or in the case of his absence, or perform the duties of his said quality, shall or will pay by this bill of risk, sea exchange, and bottomry, to Francis Manoel Cahert, professed in the order of Christ, or to his order, the sum of 5273/. 12s. sterling, principal and premium of risk'and sea exchange, at the rate of \6per cent, the which principal he acknowledged to have received here of the said Francis Manoel Cahert, in the good current money of this kingdom, under the denomination of true and legiti- APPENDIX. No. IV. 549 mate money of sea exchange and bottomry, on the hull, keel, and appurtenances of the aforesaid ship, and there- with to supply the wants of the repairs, caulking, and of the cargo of the same, on which he had effec lively invest- ed it ; the said Calvert taking upon himself, and in consid- eration of the aforesaid premium of 16 per cent, voluntarily agreed for and settled between them, to run the sea risk on the said hull, keel, and appurtenances, and cargo of the said ship, in her ensuing voyage, which the said captain is about prosecuting from this port of Lisbon to that of Lon- don : these being the risks which the aforesaid Francis Manoel Calvert takes on himself, and is to run, such as of the sea, winds, fire, stranding, and shipwreck, enemies, and false friends, detentions of princes, and reprizals, during the whole of said voyage, excepting nevertheless those of barratry of the master, and of average as well particular as general, the which are expressly excluded ; the which risk shall commence to run from the hour the ship shall heave her first anchor to set sail from this port to that of London, and shall cease in twenty-four hours af- ter having come to an anchor : and for the ready payment of the aforesaid sum, he the captain binds himself, and his effects in general, dues and funds, both in actual possession and future, and by special mortgage the cargo, freights due, or that may become due ; and in case of failure of the prompt payment in due time, he binds himself under this clause of mortgage to pay to him or his order, for all the delay until full payment, at and after the rate of six per cent, per annum ; and there being also present Andrew Be- lucci, mate of the said ship, by whom it was declared, that in case of the absence of the aforesaid captain, he bound himself to fulfil the contents of this bond they thus executed and accepted, after these presents being read to them, and I the notary in the name of whomsoever it may concern being absent; to all which were witnesses present, Joav Pedro Roeks, who also acted as interpreter as well for the captain as for the mate, he being there vice-consul, and Manoel Eugenio Coetho, who together with the parties signed thereto. J. Joge de Almeida Rorig the notary wrote it : Jacomo Mazzola, Andrew Bellucci, Joav Pedro Roeks, Manoel Eugenio Coetho ; and J. Joge de Almeida Rorig, no- tary public of notes in the city of Lisbon and its district of his Royal Highness the Prince Regent our lord, whom God preserve, caused this instrument to be transcribed 550 APPENDIX. No. V. from my book of notes, to which I refer myself, and have subscribed it, and signed it in public form. In testimony of the truth, JOGE DE ALMEIDA DORIC. Whose hand writing is certified by FRANCIS ARBOUIN, Vice-Consul. Francis Manotl Cahert. No. V. ARTICLES OF AGREEMENT BETWEEN THE MASTER AND MARINERS. is hereby agreed between the master, seamen, and mariners of the ship now bound for the port of and the master or commander of the said ship, THAT in consideration of the monthly or other wages against each respective seaman or mariner's name here- unto set, they severally shall and will perform the above- mentioned voyage ; and the said master doth hereby agree with and hire the said seamen and mariners for the said voyage at such monthly wages, to be paid pursuant to the laws of Great Britain ; and they the said seamen and mar- iners do hereby promise and oblige themselves to do their duty, and obey the lawful commands of their officers on board the said ship or boats thereunto belonging, as be- come good and faithful seamen and mariners, and at all places where the said ship shall put in or anchor during the said ship's voyage, to do their best endeavours for the preservation of the said ship and cargo, and not to neglect or refuse doing their duty by day or night ; nor shall go out of the said ship on board any other vessel, or be on shore under any pretence whatsoever, /i7/ the voyage is ended and the ship discharged of her cargo, without leave first obtained of the master, captain, or commanding officer on board ; and in default thereof they freely agree APPENDIX. No. V. 551 to be liable to the penalties mentioned in the Act of Par' liament, made in the second year of the reign of King George the Second, intitled, An Act for the better Regulation and Government of Seamen in the Merchants' 1 Service ; and the Act made in the thirty-seventh year of His present Majesty's reign, intitled, An Act for preventing the Deser- tion of Seamen from British Merchant Ships trading to Hw Majesty's Colonies and Plantations in the West Indies : And it is further agreed by the parties to these presents, that twenty-four hours absence, without leave, shall be deemed a total desertion, and render such seamen and mariners liable to the forfeitures and penalties contained in the Acts above recited ; that each and every lawful command which the said master shall think necessary to issue for the effectual government of the said vessel, suppressingim- moralky and vice of all kinds, be strictly complied with under the penalty of the person or persons disobeying forfeiting his or their whole wages or hire, together with every thing belonging to him or them on board the said vessel : And it is further agreed, That no officer or sea- man, or person belonging to the said ship, shall demand or be entitled to his wages, or any part thereof, until the ar- rival of the said ship at the above-mentioned port of dis- charge, and her cargo delivered, nor less than twenty days in case the seaman is not employed in the delivery : And it is hereby further agreed between the master and officers of the said ship, That whatever apparel, furniture and stores, each of them may receive into their charge, belong- ing to the said ship, shall be accounted for on her return ; and in case any thing shall be lost or damaged through their carelessness or insufficiency, it shall be made good by such officer or seaman by whose means it may happen to the master and owner of the said ship : And whereas it is customary for the officers and seamen on the ship's return home in the river, and during the time their cargoes are delivering, to go on shore each night to sleep^ greatly to the prejudice of such ship and freighters ; be it further .agreed by the said parties, That neither officer nor seaman shall, on any pretence whatsoever, be entitled to such in- dulgence, but shall do their duty by day in discharge of the cargo, and keep such watch by night as the master or commander of the said ship shall think necessary, in or- ^l B go? 5- ra "O J5 1 S" 0<5 ' C" N "^ c. v *f . r* ^ i| S^ aq ~ rt O n* If K ^3 '. Peck, 9 Johns. Rep. 210. 8. Goods were laden on board of a vessel to be trans- ported from Richmond to New York. The vessel proceed- ed on her voyage in the beginning of February, but finding the Chesapeake blockaded by a hostile squadron, and that it would be impossible to put to sea, without being captur- ed, went into Norfolk, and, finally, returned to Richmond. In September following, the plaintiffs demanded their goods, in order to transport them to New York by land, but the master refused to deliver them unless on being paid half freight ; and a few days thereafter, the vessel, with the goods on board was totally lost ; without the default of the defendants or the master, the blockade having continued until that time : Held, that the defendants had no claim for freight, the voyage not having been performed ; and that more than a reasonable time for sending on the goods having elapsed, they had no right to retain them and were liable to the plaintiffs for their value, notwithstanding they were lost by inevitable accident. Lorillard v. Palmer and ethers, 1 5 Johns. Rep. 14. 9. The ship owner is bound to deliver the goods to the consignee within a reasonable time, and it is only on the delivery of them that he is entitled to freight. If he is un- willing or unable to forward them, the freighter "is entitled to receive them back without paying any freight, ib. 10. Where the completion of the voyage is prevented by a permanent blockade, and the vessel is unable to put to sea, and she returns after having proceeded to the mouth of the bay, on which her port of lading is situated, the ship owner is not entitled to freight pro rata, and the freighter is entitled to receive his goods, without paying freight, the blockade putting an end to the contract, ib. 1 1 . By the blockade of the port of discharge, a charter party is dissolved, and all claim to freight under it is gone* S. C. Per Thompson, Ch. J. 15 Johns. Rep. 20. 86 650 DIGEST. PART III. 12. Ill an action for the non-delivery of goods pursuant to a contract, of affreightment, the measure of damages is the value of the goods at the port of destination ; but with- out interest, unless there has been fraud or gross miscon- duct on the part of the defendant. Amory and others x. M'Gregor, \5Johns. Rep. 24. 13. Where the whole of a vessel is chartered to take a cargo at certain specified rates per ton, square foot, &LC. if the freighter does not furnish a full cargo, the owner of the vesselis entitled to freight, not only for the cargo actu- ally put on board but also for what the vessel could have taken had a full cargo been furnished. Dujfie x. Hayes, 15 Johns. Rep. 327. 14. Where a vessel is chartered for a voyage out and home, for an entire sum of money, to be paid on her return, her return is a condition precedent to entitle the owner to freight, and if she is lost before commencing the homeward voyage, he can recover neither on the charter-party, nor on an implied assumpsit for the freight of the outward voy- age ; nor if the freighter had accepted the outward cargo, would he be entitled to a pro rata freight. Penoyer and LU/-O. Hallett, 15 Johns. Rep. 332. 1 5. A contratt of affreightment is not dissolved by a hostile blockade of the port of departure : the performance of it is merely suspended ; and the ship owner or master may detain the goods until he can prosecute the voyage with safety, or the freighter may de'mand them, on tender- ing the full freight. Palmer r. Lo rilla rd. 16 Johns. Rep. 348. 1 6. It is only when the voyage is broken up on the part of the ship owner or master, or the completion of it has be- come unlawful that the contract is dissolved, ib. 1 7. The plaintiffs, being shippers of goods, brought an action of assumpsit, on the bill of lading, against the ship owners, and averred a loss of the goods by negligence. The jury found that the vessel, in the beginning of Febru- ary, proceeded from Richmond, where the goods were la- den, in the prosecution of her voyage, and came to Hamp- ton Roads, but finding the Clicsapeake blockaded by a hos- tile squadron, and that it would be impossible to put to sea without being captured, went into Norfolk, and finally re- turned to Richmond : that in September following, the plain- tiffs demanded their goods, in order to transport them to CARRIAGE OF GOODS. 651 New For/c, by land ; but the master refused to deliver them wnless he was paid half freight ; and that a few days there- after, in consequence of a violent storm and freshet, the vessel was sunk at the wharf, -without any fault or negligence of the defendants or their agents, and the goods wholly ruin- ed and spoiled. Held, that admitting that the plaintiffs had a cause of action, yet that in this form, and under this declaration ; they were not entitled to recover, the jury having negatived the gravamen alleged, to wit, the negli- gence of the defendants ; and that the court could not look to other facts found by the jury to support the action, as that would be to allow a party to declare in one form of action, and recover in another, ib. 18. But the plaintiffs had no cause of action, for the contract of affreightment was not discharged by the block- ade, and the defendant had a right to retain the goods, un- til he could prosecute the voyage, or unless the plaintiffs tendered the whole freight, or unless the contract was re- scinded by mutual agreement, ib. 19. The defendant hired the vessel of the plaintiffs to carry a cargo from New York to P. and back, with a re- turn cargo, to New York, and covenanted to pay the plain- tiffs for the charter and hire of the vessel " from New York to P. and back, 1 400 dollars on the delivery of the cargo at P., and 1400 dollars on the delivery of the re- turn cargo, on the arrival of the vessel at New For/c." The vessel proceeded with the cargo from New York and arrived in sight of P., but the place being strictly block- aded by a Portuguese squadron he was forbidden to enter the port ; and not being instructed to proceed to any other port, the master returned to New York with the cargo ; and the plaintiffs offered the defendant to carry it back to P., or to any port in its vicinity, as the defendant might direct, but the defendant having abandoned the cargo to the underwriters, who accepted it, declined the offer, and the cargo was afterwards demanded and receiv- ed by the underwriters, \vho as well as the defendant re- fused to pay the freight; Held, that the plaintiffs were not entitled to any freight under the charter-party ; the voy- age not having been performed, nor the cargo delivered according to the conditions of the agreement, on the per- formance of which, the payment of the freight depended. Burrill vs. Cleeman. 1 7 Johns. Rep. 72. 652 DIGEST. PART HI. 20. Where the defendant, the owner of goods, shipped them on board the plaintiff's vessel, to be carried from J^ew York to Liverpool, and there delivered to C., the con- signee, he paying for the same, with primage and average accustomed, according to the bill of lading signed by the master, who, on his arrival at Liverpool, delivered the goods to the consignee, without receiving the freight, though he, afterwards, demanded it, but the payment was refused ; Held, that the plaintiff might maintain an action for the freight against the consignor. Barker vs. Havens, 1 7 Johns. Rep. 234. 21. It seems, that when the goods are not owned by the consignor nor shipped for his account or benefit, the carri- er is not entitled to call on him for the freight, on such a bill of lading, ib. 22. It is the duty of the master, in all cases, to endeav- our to get the freight from the consignee, ib. 23. There is no difference between the passage money and freight, they are governed by the same rules of law in every particular. Patten vs. Park, rfnthori's Nisi Prius, 34. n. a. 24. The jury may allow interest on freight after a de- mand. Schureman vs. Withers, Anthonys Nisi Prius, 166. 25. Where a vessel has been captured on her voyage, and condemned at an intermediate port, and a part of the cargo has been restored and sold at the same port, no freight is due for the cargo so restored. Sampayo vs. Sal- ter, 1 Mason Rep. 43. 26. No freight is payable, when the voyage is broken up, after its commencement, by an interdiction of commerce with the port of destination, or by accident or superiour force. But if the cargo is accepted at an intermediate port, a pro rata freight is due. Saratoga, 2 GaUison Rep. 179. 27. Of the rules respecting freight and wages adopted by foreign writers, ib. 28. A neutral ship, engaged in transporting provisions for the use of the army of a belligerent, which army is in a neutral country and engaged in a distinct war with a third belligerent, is not entitled to freight. The Commercen, 2 GaUison Rep. 261. 29. In what cases, the neutral carrier forfeits his right to freight, ib. CARRIAGE OF GOODS. 653 30. Where, by a charter-party, A. let to B. for a certain voyage, the whole tonnage of his brig, and covenanted to deliver the cargo at the port of destination, dangers of the seas excepted, and also, that the brig should be tight, strong, and well manned and provisioned, &c. arid the re- turn cargo should be delivered to B- at the home port. And afterwards, by provisional sealed articles, it was among other things agreed between the parties, that the captain should be instructed by his owner to touch at Fal- mouth, and " there to lay off and on twenty-four hours, or Ion' ger, ifdesiredin day-light, during which time there will come off orders from Mr. F., Mr. T. W., or Messrs. A. &L Co." (the consignees ;) and the captain was to proceed to such port, as these orders should state, of five specified ports ; and if the vessel was detained over twenty-four hours at Falmouth, demurrage should be paid for the time at a stip- ulated rate ; and the vessel proceeded to Falmouth Roads, and there no orders being ready, the vessel, by the or- ders of Mr. F., came immediately into port, instead of lay- ing off and on for twenty-four hours, and was there seized and detained for eighty days, for a supposed breach of the Revenue Laws of Great Britain. On an action of cove- nant for demurrage during this period, alleging as a breach, that by the order of Mr. F. the brig was conveyed into the port of Falmouth, and by means thereof was there detained for the eighty days : It was held by the Court, 1st. That notwithstanding the charter-party and articles, A. remain- ed owner for the voyage, and was answerable for any mis- conduct of the master, and that the covenant to lay off and on was his covenant as owner. 2dly. That if the going into Falmouth was a breach of the covenant, an action would lie for such breach, not for A. against B. but for B. against A., as the owner, for the wrongful act of his master. 3dly. That, in this case, the master having acted by the orders of B.'s agent in going into Falmouth, no action could be maintained by B. for the breach. 4thly. That no de- murrage was due to A. in this case, the detention having been occasioned either by the misconduct of the master, for which A. alone was answerable, or having been done, to avoid danger, and not having been occasioned by laying off and on the port of Falmouth to receive orders, or by any misconduct or breach of covenant by B., the true con- struction of the charter-party charging B. with demurrage only in the latter cases. PIooc. v. Graverman, 1 Crnc/i, 21 4. 654 DIGEST. PART 111. 31. Where a vessel is chartered, and meets another ves- sel in distress in the course of her voyage, and one of the charterers is on board, and consents that a part of the crew may go on board the distressed vessel to assist in saving her, this does not change the situation of the parties under the charter-party, but the owner of the vessel still contin- ues to risk the freight, and the assent of the charterer can only be construed to charge him with hazards to be en- countered by the cargo, and not to vary the contract res- pecting the freight. Mason v. The Blaireau, 2 Crunch, 240. 32. To make a bottomry, executed by the master, a val- id hypothecation, it is necessary to show that the master acted within the scope of his authority, or, in other words that the advances were made for repairs or supplies neces- sary for eftectuating the objects of the voyage, or the safe- ty and security of the ship ; and no presumption should arise in the case, that such repairs or supplies could be pro- cured upon reasonable terms with the credit of the owner, independent of such hypothecation. The Aurora, I Wheat. 96. 33. If the master have sufficient funds of the owner un- der his control, or can procure them on the general credit of the owner, to make a necessary repair, he has no authori- ty to subject the ship to an hypothecation. Ib. 34. A bottomry bond given to pay oft' a former bottom- ry bond, must stand or fall with the first hypothecation ; and the subsequent lenders can only claim upon the same ground as the former lenders, of whom they are virtually the assignees. Ib. 35. Where money has been advanced, under a stipula- tion for a bottomry bond, and the vessel is permitted to go to sea without any attempt to enforce the stipulation, it is to be deemed a waiver of the hypothecation, and the par- ty cannot, on a subsequent voyage, insist upon a bottomry bond for his prior advances. Ib. 36. A bonu fide creditor who advances his money to re lieve a ship from an actual arrest, on account of debts in- curred on the ship's account, may rightfully stipulate for a bottomry interest to secure him for such advances, and the master, if he has no other sufficient funds or credit, may execute a bottomry bond in his favour. Ib. 37. But it is very doubtful, it' the arresting creditor CARRIAGE OF GOODS. 655 could entitle himself to such a bottomry bond by agreeing to withdraw his arrest. The Aurora, 1 Wheat 96. 38. If a person making advances for repairs, &,c. has in his own hands funds of the owner, which he may apply to pay for repairs, he cannot entitle himself to a bottomry bond for advances made for such repairs. 76. 39. It is incumbent on the lender on bottomry, to show the items of his claim, and if various demands are mixed up in his bond, some of which would, and some would not, support an hypothecation, it is his duty to separate them, and exhibit them to the Court distinctly, before he can claim a decree for any part of his advances. Ib. 40. A loss by general average is not a good ground of abandonment. Lapsley v. Pleasants, 4 Binney Rep. 502. 41. To constitute general average, it is necessary that the ship should be in distress, that a part should be volun- tarily sacrificed to save the rest, and that the sacrifice should be conducive to the saving ; but it seems that pre- vious consultation between the officers and crew is not necessary; nor is it necessary that the part sacrificed should be exposed to greater danger by encountering the loss, than it would otherwise have been. As if, from the violence of the winds, a ship must go ashore somewhere, and she chooses a place, where she will be at least as safe as she could be any where else, still if she selects her place, and incurs a certain loss thereby for the common benefit, it is general average. Sims v. Gurney, 4 Binney Rep. 513. 42. If a vessel founders, the carrier must prove that she was seaworthy, before he can bring himself within the ex- cuse of its being the act of God ; but she need only be seaworthy for the trade in which she is employed. That which would constitute seaworthiness for a short voyage upon the lakes, may not be seaworthiness for a voyage up- on the ocean. Bell v. Reed, 4 Binney Rep. 127. 43. If the facts of a loss at sea are such, as that it may be fairly attributed to inevitable accident, and the owner of the goods means to allege that the vessel was not sea- worthy at her departure, the onus probandi lies on him, and not on the carrier, ib. 44. The man who undertakes to transport goods by water for hire, is bound to provide a vessel sufficient in all respects for the voyage, well manned and furnished witlv 656 DIGEST. PART 111. sails, cordage, anchors, and all necessary furniture. If a loss happens through a defect in any of these respects, the carrier must make it good. ib. 45. A carrier's vessel must be seaworthy, or he must answer, although the loss does not proceed from unsea- worthiness, ib. 46. A cargo of flour and wheat was shipped from Phi- ladelphia to Fayal, and from thence at the discretion of the shippers to two other ports; ten running days to be allow- ed at each port the vessel might stop at, to determine up- on the expediency of unlading or proceeding, and twenty- five working days at her port of discharge, for the dis- charge of her cargo. In case of further detention, a de- murrage of fifty dollars per day to be allowed for every day she was detained, which should not be longer than thirty days. Freight at the rate of one dollar and seven- ty-five cents per barrel, if she discharged at Fayal, and twenty-five cents for each subsequent port. The, vessel arrived on the 14th of February at Cadiz, which was se- lected as her port of discharge ; and on the 17th the cap- tain desired and offered to unlade the cargo. The super- cargo refused to receive it, insisting on his right to keep it on board the twenty-five days ; and within this period the vessel and cargo were lost. Held that the supercargo was not bound to receive the cargo during the twenty-five working days ; and it being lost within that period, no freight was earned, notwithstanding there had been time and opportunity and an offer by the captain to discharge it. Lacombe v. Wain, 4 Binney, 299. 47. Quaere whether freight is earned when the working days at the port of discharge expire ; or whether it is not contingent during the days allowed on demurrage, and even until the cargo is actually landed, if the landing is not prohibited, ib. 48. Ship and freight were insured at and from Philadel- phia to St. Barts. On her voyage the vessel wus so much injured by storms, as to be under the necessity of putting into Jamaica ; and upon being surveyed, it was found that her repairs would cost more than she would be worth when repaired. The master, who was consignee of the cargo, made inquiry for another vessel to carry it on to St. Barts ; but the only one that could be procured, was not large enough to take more than half the cargo, and for her CARRIAGE OF GOODS, 657 an exorbitant freight was demanded In consequence of this the vessel was broken up, and together with the cargo sold for the benefit of all concerned. Upon receiving ad- vice of the facts, the owners abandoned to the underwriters on ship and freight, and also to the underwriters on cargo. Held, that as the goods were not -voluntarily accepted by the owners at the intermediate port, no freight pro rala was due, and therefore the assured were entitled to recover a total loss on both policies. Calender vs. The Ins. Co. of North- America, 5 Binney 525. 49. A factor cannot pledge the goods of his principal for his own debts ; and if he does, the principal may after a demand and refusal maintain trover for them against the pawnee. Van Amringe. vs. Pedbody, 1 Mason Rep. 440. 50. A hostile investment or blockade of the port of de- parture does not dissolve a contract of charter-party ; and the master or owner of the vessel has a right to retain the goods, until he can prosecute the voyage with safety, or the freighter tenders the whole freight and demands his goods. Ogden vs. Barker and others, 18 Johns. Rep. 87. 51. Where a contract of affreightment, or charter-party was executed by the plaintiff and defendant, under their seals, for the transportation of goods from a port in Vir- ginia to Cadiz, and the parties, on the same day, (January 26, 1813) made an agreement on a separate paper, not un- der seal, referring to the charter-party executed by them, and stipulating that the, owner should have on board a Sidmouth license for the protection of the ship and cargo ; Held, that these were several and distinct contracts, and the supplementary agreement being illegal and void, did not affect or vitiate the charter-party, which remained val- id and binding, ib. 52. The right to retain goods for the freight, grows out of the usage of trade, and does not exist where the parties have, by their agreement, regulated the time and manner of paying the freight, especially where the cargo is to be delivered before the time fixed for the payment of (he freight. Chandler and Talbot vs. Belden, 18 Johns. Rep. 15 f. 53. The legal property in goods passes by a bill of lading, and an assignment thereof, bonaf.de, and for a fair consideration, though the assignment be made after the ar- 37 658 DIGEST. PART III. rival of the goods in port : and where the ship owner, not having a lien for the freight, sold the goods at auction to pay freight, it was held to be a conversion of them, and that trover would lie at the suit of the person to whom the bill of lading was assigned, ib. 54. A vessel was chartered from Boston to the coast of Africa and back to the United States at a certain rate per month, and at that rate for a less time, as she should be continued in the said service in thirty days after her re- turn to Boston. She touched and traded at several places on the coast, and returning to the United States was cap- tured. It Avas holden that hire was due from the inception of the voyage, until the expiration of half the time spent at the last place visited by the vessel on the coast for the purpose of trade. Locke vs. Swan, 13 Mass. Rep. 76. 55. A registered vessel, bound coast-wise from the port of Boston to another port in the United States, and from such other port to a foreign country, is a coaster within the exception of the Mass. Statute 1796, c. 85. 2. for reg- ulating pilotage, and so is not obliged to take a branch pi- lot on board. Tilley vs. Farrow, 1 4 M ass. t Rep. 1 7. 56. A vessel was chartered for a voyage at a certain hire per month, so long as she should be continued in the service of the hirers, who were to victual and man the vessel and pay all port charges. On her passage home she was captured as a prize, and detained several months, but was finally restored, and arrived at her port of desti- nation held that the owners were entitled to the hire as stipulated by the charter-party without any deduction for the time of the detention in consequence of the capture* Spaford $- al vs. Dodge if ah 14 Mass. Rep. 66. 57. In the* above case the costs and charges paid by the hirer, in procuring the restoration of the vessel and cargo, were allowed as a general average on vessel,' cargo arid freight, according to the value of each at the place of de- tention. Ibid. 58. The wages and provisions of the crew, during the detention were not allowed on a general average. Ibid. 50. A master of a vessel has lawful authority to inflict punishment especially for any past offence ; although it is not inflicted for the purpose of coercion to duty, and al- though no mutiny or disorder exists at the moment it not WAGES OF SEAMEN. 659 being necessary that the punishment should immediately follow the offence, Sampson vs. Smith, 1 5 Mass. Rep. 368. 60. As to the nature and limits of the power which the master of a vessel has to enforce obedience among his crew by violent punishments, see the above case. Ibid. ' 61. The underwriters upon a cargo are not liable for freight pro rata itineris ; to the owner of the vessel who is also owner of the cargo insured, in a case where the ves- sel and cargo were captured, the cargo abandoned to the underwriters as a total loss, and by them accepted, the loss paid, the cargo condemned, restored upon appeal and the proceeds of its sale paid over to the underwriters. Freight pro rata itineris is not due unless the owner of the cargo voluntarily agree to receive it at a place short of its ulti- mate destination. Carze et, al. vs. Bait. Ins. Company, 7 Crunch* Rep. 358. 62. If a neutral vessel be captured on her outward voy- age from England to Amelia Islands, carrying a hostile car- go which is condemned, and if by the charter-party the outward cargo is to be carried free of freight, but the homeward cargo is to pay at a certain rate to be ascer- tained by the nature of the cargo ; yet the court will de- cree freight pro rata itineris of the outward cargo, to be assessed upon the principle of quantum meruit. The ship Societe, 9 Cranch. 209. PART IV. OF THE WAG*4& OF MERCHANT S 1. If a seaman leave the ship without any fault of his own, he may recover the whole or any part of his wages accruing during the voyage, according to the circumstan- ces. Luscomb, jjdm'r, vs. Prince & ah xii. Mass. Rep. 576. 2. So, if a seaman die during a voyage, his representa- tives may recover what is due at the time of his death. Jlnd. 3. Where a seaman on board a ship voluntarily left the the ship, with the consent and by the request of the mas- ter, to serve on board another ship arihcd as a convoy ; if was determined that he was entitled to his wages from the 660 DIGEST. PART IV. master of the former vessel, until her arrival at her port of discharge, but no longer ; for by going as a volunteer on board the convoy he assumed the risk of a longer de- tention. Wilson vs. Bragdon, x. Mass. Rep.79. v 4. If a seaman be hired for a voyage, and the ship earn one freight or more, and afterwards be lost before com- pleting her voyage, the seaman is entitled to his wages to the last port of delivery, and for half the time that the ship lies in that port. Hooper vs. Pet ley, xi. Mass. Rep. 545. 5. And, if a ship on her outward voyage be seized and carried into any port out of the course of her voyage, and be afterwards restored to the master, and arrive safely at her port of delivery, the seaman is entitled to his wages for the whole time of such detention, although the ship be lost on her return voyage. Ibid. 6. On the other hand, if a ship be detained in like man- ner on her homeward voyage, and be afterwards lost, the seaman will lose his wages for the time of such detention, as well as for all the other time consumed on the home- ward voyage. Ibid. 7. If a vessel be seized and condemned, while on her voyage, for a violation of the revenue laws of a foreign stale, the seamen will not be entitled to their wages after the seizure. Oxnard vs. Dean & al. x. Mass. Rep. 143. 8. Nor are seamen entitled to wages after the capture of the ship, although they be forbidden by the master to leave the ship; for upon the capture the relation be- tween the owners and master and crew ceases. Lemon vs. Walker ty al. ix. Mass. Rep. 404. arfridson vs. Ladd, xii. Mass. Rep. 173. 9. But, although the master be entitled to nothing, quasi wages, after the capture of the ship; yet, if he remain to claim the property for the benefit of the owners, and incur expenses on that account, he may recover in indcbitatls as- swnpffit an indemnity against the owners of the property, notwithstanding the dissolution of the contract. Arfridson vs. Ladd, xii. Mass. Rep. 1 73. 10. And, if a person be employed as a flag-captain, that is, to assume the character and duties of captain on special occasions only, for the purpose of protecting the property as neutral, the contract will not be dissolved by a capture WAGES OF SEAMEN. 661 of the vessel ; but he will be entitled to his wages from the time he departed on his voyage until his return. Ibid. 11. It is generally true, that a mariner has a threefold remedy for the recovery of his wages, viz. upon the ves- sel, the owners, and the master. AspinwallAdm'r, vs. Bart- lett, viii. Mass. Rep. 483. Goodridge & al. vs. Lord, x. Mass. Rep. 483. 12. A privateersman, who has contributed to the taking of prizes, is entitled to his share of those captured during the cruise, although he may have been disabled before the end of the cruise from aiding in such captures. Luscomb, Adm'r, vs- Prince & al. xii. Mass. Rep. 576. 13. But, when the disability is occasioned by his own misconduct, he ought not to share in prizes which he did not assist in taking. Ibid. 14. Thus, if a privateersman be confined for mutiny; and, while he continues so confined, prizes be taken, he is not entitled to a share of such prizes, Ibid. 1 5. Where it was agreed between the officers and crew of a privateer, that any one guilty of certain offences should be punished at the discretion of the officers, e- ven to the forfeiture of his share of the prizes which they might take, and one of the crew, being guilty of an offence within the agreement, was sentenced to receive corporeal punishment, which was accordingly inflicted ; it was held that, as no other punishment had been determined upon for the offence, it did not amount to a forfeiture of his share of the prizes. Ibid. 16. If, during a voyage, a seaman is compelled to leave the ship, on account of ill usage and cruel treatment, by the master or through his agency, and for fear of his per- sonal safety, it is not a case of voluntary desertion and the seaman is entitled to his full wages for the whole voyage. Ward vs. Ames, 9 Johns. Rep. 1 38. 17. A seaman signed articles for a voyage, as he under- stood, and as was represented to him by the master, from JVezo York to Archangel and back ; though the articles were, in fact, for a voyage from Middletown, Connecticut, to any port or ports in Europe, for three years and back to the United States. The vessel went from JVezt: York to Sicily, Sardinia, and Messina, at which places she disposed of her outward cargo, and took in a load of salt, at Messina, where 662 DIGEST. PART IV. she lay seven months, during most of which time the cap- tain was absent. She left Messina, for Gottenburgh, and was afterwards captured off Minorca, by a French priva- teer, and carried into Tobago in Africa, and there condem= ned. The seaman brought an action to recover his wages for the whole voyage, and also for a breach of the shipping articles. It was held, that he was entitled to wages from New York to Messina, and during the stay there, the deten- tion being an act of the captain ; but not from Messina, that being a new and intermediate voyage ; and the capture put an end to the freight, as well as the wages for that voy- age. Murray vs. Kellogg, 9 Johns. Rep. 227. 18. Seamen signed articles for a voyage from NewYork to North Carolina, and thence to a port in Europe. The vessel went from New York to North Carolina in ballast, and there took in a cargo and sailed for Europe ; but was compelled in consequence of springing a leak, to put into New 1 ork for repairs. The seamen made no application, under the law of the United Slate?, for repairs; but the owners voluntarily caused repairs to be made ; and after the repairs, the vessel was. in the opinion of the master carpenter and three shipbuilders, perfectly seaworthy ; though seren journeymen carpenters were of opinion that she was not seaworthy : x and on that ground the seamen refused to proceed on tL- voyage. No freight was earned at Neu- York, the cargo having been landed, for the pur- pose only of repairs, and was reladen when they were completed. In an action brought by one of the seamen for wages, it was held, that he was not entitled to recover, there being no freight earned, nor any loss of voyage im- putable to the master or owners. Porter vs. Andrews, 9 Johns. Rep. 350. 19. Where a voyage is broken up. not from necessity, or in consequence of the perils of the sea, but from the act of the master or owners, the seamen are entitled to pay- ment of their wages to the time, and also for a reasonable lime to be allowed for their return home. Sullivan vs. Morgan, 1 1 Johns. Rep. 66. 20. Whether seamen can maintain an action against the owners of the vessel for the two months* wages allowed by the act of congress of the 28th February, 1803, (cong. 7. sess. 1. c. 52. s. 3.) where the vessel is sold, and the sea- men discharged in a foreign country ? Querc. ib- WAGES OF SEAMEN. 21 . The master is chargeable for wages only on his special contract in hiring the seamen. Wysham vs. Rossen, 1 1 Johns. Rep. 72. 22. And the owners from the implied contract which they were supposed to make through their agent the mas- ter, ib. 23. Where seamen are shipped for a voyage, and during the outward passage the vessel is captured and carried in- to a port of the captor, where the master leaves her, and she is afterwards released, an ner's wages. Emtrson vs. tJoidand. 1 Mason Rep. 45. 49. Where seamen are discharged abroad without the payment of the three months wages required by the act of Congress of the 28th of February, 1803, ch. 62, on a libel for wages the court will enforce the payment of the three months wages, ib. 50. Where an embezzlement takes place on board of a ship, the seamen are not liable to contribute out of their wages, unless it was caused by their fraud, connivance or negligence ; or, if the offender is unknown, unless a pre- sumption of guilt is fixed upon all the crew, or at least on those who are called upon to contribute. Spurr vs. Pear- son, 1 Mason Rep. 1 04. 51 One seaman may be a witness for another in any suit respecting the same voyage, although interested in the question, if not interested in the event of the suit. ib. 52. An endeavour to make a revolt within the act of the 30th of April, 1790, ch. 9, sect. 12. is an endeavour to ex- cite the crew to overthrow the lawful authority and com- mand of the master and officers of the ship. It is in effect an endeavour to make a mutiny among the crew of the ship. United States vs. Smith. 1 Mason Rep. 147. 53. If a mariner, shipped for a cruise, be disabled and leave the privateer, by common consent, before the cruise has commenced, -he is not entitled to a share of prizes, Ex parte, Giddhtgs, 2 Gallifon Rip. 56. 54. jtliter, if he were disabled, during the cruise ; and, WAGES OF SEAMEN. 067 in such case, on board of a merchant ship, he would be en- titled to his full wages during the voyage, ib. 55. The contract for mariners' wages is not dissolved by capture, unless followed by condemnation. During the prize proceedings it is suspended, and by restitution or recapture, the parties are remitted to their former rights. The Saratoga, Z Gallison Rep. 164, 176. 56. Seamen, after a capture, have a right to remain by the ship. Qucere, at what time, they may lawfully quit the ship ? ib. 57. If, pending the voyage, there be an interdiction of commerce with the port of destination, by war or other' wise, and in consequence the voyage is broken up, no wages are due. But if the mariners be subsequently retained by the master to refit and repair the ship, they are entitled to a reasonable compensation in the nature of wages. And if afterwards discharged in a foreign port, the mariners are entitled to two months pay, provided by the act (28th Feb. 1803) and may recover it, if unpaid, by a suit in the Admiralty, ib. 58. Of the exceptions to the rule, that, to entitle to wages, freight must be earned. The Saratoga, 2 Gallison Rep. 164. 59. A mariner shipped on a voyage " to the Pacific, Jrtr dian and Chinese Oceans, or elsewhere, on a trading voyage ; and from thence back to Boston," with a stipulation that two months wages should be paid on arrival at Canton ; the voyage being in fact a trading voyage to the Northwest Coast for furs ; It was held, that the outward voyage terminated at Can- ton, and that the shipping articles did not authorize a re- turn from Canton to the Northwest Coast, and that therefore, it was not a .desertion in a mariner to leave the ship at Canton, it being the intention of the master to return to the Coast. Brown vs. Jones, 2 Gallison Rep. 477. 60. It seems a " trading voyage" does not include a " freighting voyage." ib, 61. The words "or elsewhere" in the shipping articles, are either void for uncertainty, under the act of Congress regulating mariners in the merchants' service, or are to be construed as subordinate to the principal voyage stated in the articles, ib. 668 DIGEST. PART IV. 62. The statute of limitations of Massachusetts applies only to suits at common law for mariners' wages, and not to suits in the Admiralty. ?i. 63. Though a " trading" and not a " freighting" voyage, is described in the articles; yet the taking on board of goods on " freight" is not a deviation, to discharge the sea- men, if it occasion no unnecessary or unusual delay but the seamen, in such case, are not bound to remain by the ship for the purpose of unlading the freighted cargo, ib. 482. 64. A master of a vessel has a right to retain freight re- ceived by him, against the owner, or his assignee, as a gen- eral creditor. Hodgson v. Butts, 3 Crunch, 1 40. 65. A master of a vessel is bound to save for his owners the ship and cargo confided to his care, by all means in his power, but he is not bound to employ fraud in order to effect the object, even as against an enemy. Hannay, v. ETC, 3 Crewch, 242. 66. If a slave be a mariner on board a ship, on waees, and desert during the voyage, the master of the ship, if he has acted with good faith, is not responsible to the owner of the slave for his desertion. Beverly v. Brooke, 2 Wheat. 100. 67. A mariner forfeits his wages by an embezzlement of any part of the cargo. Mason v. The Blaircau. 2 Crunch. 240. 68. A master of a vessel is entitled to his wages, in case the vessel is captured, up to the time of the capture. Moore vs. Jones et al. 15 Mass. Rep- 424. 69. Where a mariner engaged for a voyage and it was stipulated, that no officer or seaman should be entitled to any part of his wages until the arrival of the ship at her port of discharge in the United States, and her cargo deliv- ered ; the ship was lost on her passage to the United States ; the mariner was held to be entitled to his wages up to the last port of lading ; and during half the time of lying i such port. Swift vs. Clark, 1 5 Mass. Rep. 173. INDEX ACCORDING* TO THE PAGES OF THE ENGLISH EDITION, PADS AB ANDONMENT of goods thrown overboard 343 AB ATEMEN T of freight 191 plea of, by part-owners 100 ABSENCE, from the ship without leave, forfeiture for 162, 455, 541 in the coasting trade 162, 547 ACCOUNTS, settled by majority of part-owners 97 ACTIONS, by part-owners ib. against them 99 for general average 351 seamen's wages 457, &c. limitation thereof 470, 471 freight pro rata 308 salvage 383 ADJUSTMENT of general average 346, 348 ADMEASUREMENT of ships for registry 35 ADMIRALTY COURT, its jurisdiction as to disputes between part owners 87. suits for repairs of ships 136, 154. payments out of surplus proceeds 143: salvage 384, 387 seamen's wages 458, &c. pilotage 183 AGREEMENT, for transfer of property in British ships must be in writing 43 between master and seamen must be in writing 161, 414 not required to be sealed 415 written conclusive 422, 541 form thereof 479 for service in foreign voyages 414 in the coasting trade 416 slave trade 422 West-India trade 416, 418 must be produced by the mas- ter or owners 462 INDEX. 1 H INDEX. PAGE ALGERINES, not now deemed pirates 13 ALIEN SHIPS, what so considered 29 ALLIES, salvage (,n the recapture of the property of 402 ANCHOR, ship striking against 242 ASSIGNMENT, of bill of lading 365 by ft factor as a pledge 374 of freight 79, 80 AVERAGE, CUSTOKABY om TTY 270 GEM.HAL OB GROSS, 325, &.C. definition of 326 origin of ib. case of goods thrown overboard 328, previous consultation 329 stowed upon the deck 334 damaged by the jettison of others 331 put into lighters ib. delivered to pirates ib. injured by the shot of cannon 342 unladen and warehoused 333 ease of ship and its furniture 333, 334 repairs of ship 335 wages, &c. of crew during embargo 338 waiting for convoy 339 healing of disabled mariners 341 ships running foul of each other 342 contribution for 344 adjustment of 346 example of such adjustment 348 recovery of money to be paid for 550 detention of cargo for 244 bond for payment of 351 If. BANKRUPTCY of a part-owner 92 BARGE. See LIGHTER. BARRATRY, definition of 167 BILL OF LADING, wh.t it is 216 old form of 217 new forms of 218 cannot be pledged by a factor 374 assignment of 365 indorsement of 358, 365, 375, 376 BILL OF SALE. See SALE, CBHTITICATE or REGISTRY. to be produced upon registering sh.ps de nevt 43 from the original builder need not recite certificate of registry 57 BOND to be given on registry of ships 36 where such bond may be executed ib. for payment of average 351 fresh bond to be given on change of the master 3fr INDEX. in HJOTTOMRY. See HTPOTHBCATIOW. by master 144, 159 owners 145 on English ships bound to the East-Indies 147 foreign ships bound thither 148 BRITISH SEAMEN, description of 107 BRITISH SHIPS. See REGISTRY OP SHIP*, AND CSBTIFICATI OF REGISTRY. what are such 26, 54 what the port of 31 rebuilding and repairing thereof abroad 30 registry thereof 28, &e. form of a certificate of registry 35 place of registry 31 alteration of ship 37 change of name of ib. transfer of property thereof 42 in the ship's port 44 at sea or in another port 49, 58, 63, 65 to a foreigner 52, 53 to be in writing 52 on trust for persons unnamed 68 if to be aided in equity 75 when owners reside in a foreign country 50 forfeiture thereof 31, 109 BULLION contributes to general average 344 BURNING a ship how punishable 167, 168, &c. where offenders may be tried 169, 170 where Jl^cessaries may be tried 171 C. 151 authority to sell cargo, in case of necessiiy, or for repairs, 178 in other cases, how far it extends 178, 276 no authority to sell cargo, where ship disabled from pursuing; her voyage 276, 349 behaviour of 183 how far responsible for default or negligence 184 when he may be dismissed by owner 184 regulations respecting, in acts of United States 18S, &c. authority to correct marine's 190, 191 when he may dismiss mariners 192 duty on sale of ship or discharge of mariners abroad 193 barratry of master, what is 194 punishment of in United States for destroying ship 200 punishment for other crimes on the high seas 202 See crimes. penalty for not taking on board American seamen in foreign ports, at request of the consul 211 not bound to wait for cargo beyond time agreed Sfc't deviation by, what amounts to ratification of, by the owner 272, 273, 274 what acts master may do at a port of necessity 274 duty of, when ship is captured 278 not obliged to violate good faith, even of an enemy 280 when he may retain part of cargo for the whole freight 282. 308 has a lien on freight and cargo, for debts due from ship 'J83 what defeats his lien 283 when he may recover for duties paid by him on the cargo 317 when discharged from further pursuit of the voyage after cap- ture 352 liable for mariners' wages, though shipped by owner 466, 540 MATERI \LMEN, whether they have lien on the ship 160 whether they may sue in the admiralty 160 MEDICINE CHEST, wtien to be provided 188 penalty for not providing 209 MERCH ANT, his duties 307 to give noiice of shipment 307 liable to ownr if he puts contraband goods on board 304 xxiv INDEX. PAGE MORTGAGE of ships 23 rights and liabilities of mortgagee 23 whea mortgagee entitled to freight 13 N. NOTICE, by common carrier,limiting his responsibility, how far good 256 O. OWNER OF SHIP, to what purpose mortgagee is 23 when charterer is 28, 30, 33 when part-owner, hiring of the other 31 who is on abandonment to underwriters 34 legal title of, sustained against equitable 93 what is evidence of ownership 96 bj what, contracts of master bound 144, 149, 245 how far bound for defaults of master 184 when he may dismiss master 184 punishment of, in U. S. for burning ship 200 must keep ship in repair during the voyage 222 ,253 no action lies against, on bill of lading, where there is a charter party 245 bound by representation in an advertisement, as to the voyage 247 must provide a sufficient crew, &c. 257 whether liable to a shipper for having contraband goods on board, fcc. 259 neutral, may lawfully carry belligerent property 261 must properly document his ship 263 what act of, amounts to ratification of deviation of master 273 when entitled to freight though goods spoiled 334 entitled to contribution by seamen for goods negligently stove or lost 527 whether entitled to contribution for embezzlements 526, 527 not entitled to regain wages to answer contingent damages 527 liable for seamen's wages, though ship be abandoned to nnder- writers 540 P. PART-OWNERS of ship sale by, of the whole ship 107 authority to compel a voyage to be made 111 how far liable for materials found, Sfc. 112 when discharged from liability 119 whether underwriters are partners on abandonment 120 of privateers, how far liable 121 punishment of, in U. S.for burning, Sic. ship 200 PASSAGE MONEY, how far like freight whether pro rata due 350 PERILS of the seas, loss by worms not 294 INDEX. xxv PILOTS, their powers and duties 214 liability for negligence 215 PLUN'DER \GE, when seamens' wages contribute for 526, 527 PORT of delivery. wh>it is .... 501, 502, 503 of di^cjiavge, what is . . , . 502, to 504 POSSESSION sjuit/or, o/ sjiips 93 PROFITS. ....... in lieu of freight how co'mputed 370 x !t - REGISTRY of ships, statutes respecting in Appendix. origin of 35 ships, what entitled to be registered 36 ships, what to be recorded 38, 69 ships, what to be enrolled 38 ships, what to be licenced 38 ships nt required to be registered . 41 place of registry 41 manner of registry 41, 42, 43, 45, 48, 49 oaths to be taken 41, 4.5 47 certificate of tonnage and built 46, 48 certificate of registry how obtained 48, 49 new, how obtained orutransfer 49 bonds to be given before 49 how cancelled 63 proceedings on change of n aster 50 on sale or transfer 51, 58, 63 name to be written on the stern 51 if built altered, to be registered anew 52 certificates to be numbered 52 to be deposited on entry 52 when lost how renewed 53 when detained by master proceedings 57 bill of sale in writ ing on transfer 58, 67 registry anew, when necessary 58, 63 proceedings on 63 surrender of certificate, when 63 bonds how cancelled 63 proceedings on sales of ships abroad 64, 75 to foreigners 69 proceedings respecting recorded ships 69 coa?ting trade &n& fisheries 70 enrolled ships 70 frauds respecting registry how punished 35 to 70 contracts in fraud of registry acts, void 72 decisions respecting registry acts 72 to 78 when ships sold abroad, to be registered anew 75 what ships entitled to certificate of ownership or sea letter 79 and Appendix master of registered ship must be a citizen 131 REPRESENTATION, as to the voyage in advertisement binds the owner 247 INDEX. 4 XXYI INDEX. PAGE RUNNING down ships, suit for in the admiralty 184 S. SALE of ships, by master when good 7 to be by bill of sale .. S8, 63, 67 on process of law .. . . 63 when abroad, proceedings . . 63 SALVAGE, discretionary, unless limited by statute 432, 434, 452 when a passenger allowed 436 when a seamen allowed 436, 498, 512, on recapture, in courts of^he U. States 449 cases, in which it has been allowed 452 apprentice entitled to in his own right, and not his master 452 fraud or misconduct destroys right to 453 SEAMEN, see wages. regulation respecting in acts of U. S. 185 to 190 how hired 186 hiring of, when by shipping paper 187 when to render themselves on board 186 penalties for desertion, Sfc. 186, 187, 523, 524 warrant to apprehend, when granted 186 proceedings by, when ship unseaworthy 187 allowance of water, &c. for voyage 189 how corrected by master for misbehaviours 190, 191 punishment of crimes, comm.tted by 191, 192 when they may be discharged by master 192 regulations respecting wht-n ship sold, or they are discharged abroad 193 punishment of for crimes on the high seas, 202 See crimes. relief and protection of, American 208 care of sick, at expense of the ship 209, 481 discharged from contract by abandonment of ship at sea 436, 498 whether bound to unload ship at home port of discharge 505 how long bound to remain by ship after capture 512 SEA-LETTEK, v hat is, 79 SEA-WORTHINESS, what constitutes 257 SENTENCE of condemnation of ships 15 when conclusive 16 when not conclusive 16 SHIPS, prize, condemnation of, necessary 15 bill of sale necessary on transfer of 2, 58 how equipped for a voyage, 189, 257, 263 must be properly documented 263 SHIPPING PAPER, what it must contain, when necessary 185 construction of the clauses in 522, 523, 524, 525 INDEX. PAGS SHIPWRIGHTS, whether they may sue in the admiralty 160 whether they have a lien on the ship 160 SICKNESS OF SEAMEN, cure how provided for 209, 481 wages how affected by 466 STOPPAGE in transitu, right limited to cases of insolvency 408 when goods deemed in transit, and when not 409, 410, 414, 415, 424, 425 T. TRANSFER of ships, in general, how made 2, 58 of captured ships, how made 15 W. WAGES OF SEAMEN, when agreement in writing for, necessary 185, 190, 463 on voyage to foreign port 463 what agreement for, must contain 463 description of the termini of the voyage 463 effect of its being sealed 465 agreement for, if wages may be limited on contingencies not implied by law 485, 487 how dissolved 497,498,512,518 void, if voyage illegal 472 what clauses in, void 485, 4oT when earned wholly if freight earned 507 if freight lost by default of owner or master 492 if ship condemned for illegal conduct of owner 492, 493 if ship be unseawonhy 508 if unlawfully dismissed 474, 475, 491, 500 if seaman falls sick 466 if seaman dies 478, quere if after capture, ship is recaptured and earn freight 476, 477, 510, 511 if seaman taken out on capture, and ship afterwards perform voyage 510, 511, 512 if voyage broken up by the owner 491, 494 if salvage of ship or cargo sufficient 496, 497, 498 if voyage illegal and seaman innocefit 492 when earned pro rata. in case of impressment of se..men 477 in case of capture 484, 512 in case of death of seaman 478, 479, 480, 481 in case the ship has earned freight in former part of voyage, though lost or condemned 484, 512 in case freight be advanced, though ship be lost 481- in case part of ship or cargo is saved in shipwreck, 496 497 if voyage broken up before departure from port 491 to 494 if ship be unseaworthy in course of the voyage 508 INDEX. PASE WAGES OF SEAMEN, effect of clause in articles not to receive wages, unless ship re- turn to home port, &.c. 487, 488, 489, 490 forfeiture of, what amounts to desertion and what not 517, 518 when by gross neglect or ill conduct 525, 526 when by desertion at/>or< of departure 523 not by desertion, unless entry in the log-book 524 what operates as a release or remitter 524, 525 to what wages extended 525 alien on the remains of ship and cargo saved on ship- wreck 4%, 497, 498 a lien on the ship, and preferred to a bottomry bond 539 a lien of the ship and when discharged 539 toss of when freight is lost, though it is insured 507 contribution of, in cases of capture and recapture 510. 511 in cases of embezzlement and plunderage 526, 527 payment of, at what time 505 at what ports 595 what is a port of delivery 501 to 504 discharge 501 to 506 when voyage is ended 505, 506 remedy fer, on the admiralty side of the District Court of the U. States. 530 where the wages are earned in voyage from port to port of the U. States 531 when paid out of remnants and surplusses in admiral- ly 530 when th master may sue in the admiralty 530 receipt for, not conclusive evidence of payment 540 set aside, if fraudulent 530 WITNESS, in suits for wages, j master not 540 in what cases mariners ib. A 000681 490 9 \ \