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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LffiRARY
 
 TREATISE 
 
 LAW OF SHIPPING 
 
 AND THE 
 
 LAW AND PRACTICE OF ADMIEALTY. 
 
 THEOPHILUS PARSONS, LL.D., 
 
 DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY, AT CAMBRIDGE. 
 
 IN TWO VOLUMES 
 VOL. 11. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1869.
 
 Entered according to Act of Congress, in the year 1859, by 
 
 THEOPHILXJS PARSONS, 
 
 in the Clerk4 OfSce of the District Court of the District of Massachusetts. 
 
 Entered according to Act of Congress, in the year 1869, by 
 
 THEOPHILUS PARSONS, 
 
 in the Clerk's OflSce of the District Court of the District of Massachusetts. 
 
 T 
 
 University Press: Welch, Bigelow, & Co., 
 Cambridge.
 
 CONTENTS. 
 
 BOOK I . (CONTINUED.) 
 ON THE LAW OF SHIPPING. 
 
 CHAPTER XIV. 
 
 Of the Duties and Powers of the Master. 
 
 SECTION I. 
 
 Page 
 
 Of the Foundation and Nature of the Master's Authority ... 3 
 
 SECTION II. 
 Of the Master's Power from Necessity . . . • . 13 
 
 SECTION III. 
 Of the Master's Power over the Cargo . . . ... .20 
 
 SECTION IV. 
 Of the Lien of the Master 24 
 
 SECTION V. 
 How far the Owner is liable for the Torts of the Master . . .26 

 
 iv CONTENTS. 
 
 CHAPTER XY. 
 
 Of the Seamen. 
 
 SECTION I. 
 How Seamen are regarded by the Courts 32 
 
 SECTION II. 
 Of the Shipping Articles ^^ 
 
 Of Wages 
 
 SECTION III. 
 
 ..... 47 
 
 SECTION IV. 
 Of Provisions '^^ 
 
 SECTION V. 
 Of the Seaworthiness of the Ship 78 
 
 SECTION VI. 
 Of the care of Seamen in Sickness 80 
 
 SECTION VII. 
 Of the Return of Seamen to this Country 84 
 
 SECTION VIII. 
 Of the Disobedience of Seamen 88 
 
 SECTION IX. 
 Of the Desertion of Seamen 97
 
 CONTENTS. V 
 
 CHAPTER XVI. 
 
 Of Pilots. 
 
 SECTION I. 
 What Pilots are, and what their Duties are ..... 106 
 
 SECTION II. 
 How far Owners are responsible for the Torts of Pilots . . 114 
 
 CHAPTER XVII. 
 
 Of the Limitation of the Liability of Ship-owners by 
 
 Statute 120 
 
 CHAPTER XVIII. 
 Of Material Men, and their Liens 141 
 
 BOOK II. 
 
 ON THE LAW AND JURISDICTION OF ADMIRALTY, 
 
 CHAPTER I. 
 
 The Extent of the Jurisdiction op Admiralty. 
 
 SECTION L 
 Admiralty Jurisdiction as determined by Place . . . .159 
 
 SECTION IL 
 
 Admiralty Jurisdiction as determined by the Subject-matter of the 
 
 Action 174 
 
 VOL. II. 6
 
 VI CONTENTS. 
 
 CHAPTER II. 
 
 Of the Jurisdiction of the Several Courts of Admiralty in 
 
 this countrt. 
 
 SECTION I. 
 The Supreme Court of the United States 191 
 
 ^SECTION II. 
 The Circuit Courts of the United States 193 
 
 SECTION m. 
 The District Courts of the United States 196 
 
 CHAPTER III. 
 Of Appeals generally 204 
 
 CHAPTER IV. 
 
 Of Jurisdiction in Cases of Seizures 218 
 
 CHAPTER V. 
 
 Of Suits by Foreigners in Admiralty . . . . . 223 
 
 CHAPTER YI. 
 
 Of the Jurisdiction of the Admiralty over Proceeds in 
 
 THE Registry 231 
 
 CHAPTER YII. 
 
 Of the Principles of Admiralty Jurisprudence. 
 
 SECTION I. 
 Of the Rights and Duties of Ship-owners ..... 236
 
 CONTENTS. VU 
 
 SECTION II. 
 Of Contracts of Affreightment ....... 246 
 
 SECTION m. 
 Of Freight in Cases of Prize ....... 253 
 
 CHAPTEE VIII. 
 Of Salvage. 
 
 SECTION I. 
 Of the General Principles of Salvage 260 
 
 SECTION II. 
 Who may be Salvors 264 
 
 SECTION ni. 
 Of Different Sets of Salvors 279 
 
 SECTION IV. 
 What amounts to a Salvage Service 282 
 
 SECTION V. 
 Of Derelict 288 
 
 SECTION VI. 
 Of Compensation in Cases of Salvage . . . . . . 292 
 
 SECTION VII. 
 On what Property Salvage is allowed ..... 302 
 
 SECTION VIII. 
 Of the Manner in which a Claim for Salvage may be barred . . 304 
 
 SECTION IX. 
 Of Military Salvage 315
 
 Vin CONTENTS. 
 
 CHAPTER IX. 
 Of Repairs and Supplies . . .... 322 
 
 CHAPTER X. 
 
 Op Sale by Order of Admiralty . . . . • . 338 
 
 CHAPTER XI. 
 
 Op the Equity Jurisdiction and Practice of Courts of 
 
 Admiralty 344 
 
 CHAPTER XII. 
 
 Op the Law op Admiralty in Cases of Tort and Trespass . 347 
 
 BOOK III. 
 
 ON THE PRACTICE OF ADMIRALTY. 
 
 Introductory , . . . . 355 
 
 CHAPTER I. 
 Of Proctors 358 
 
 CHAPTER II. 
 
 Of a Suit in Admiralty. 
 
 SECTION I. 
 Of the Time when a Suit may be brought 361 
 
 SECTION II. 
 Of a Suit for Seamen's Wages . . . . ' '. . . 364
 
 CONTENTS. ix 
 
 SECTION III. 
 Of the Manner of beginning the Suit 368 
 
 SECTION IV. 
 Of the Parties to a Libel 370 
 
 SECTION V. 
 Of Joinder of Parties 372 
 
 SECTION VI. 
 Of Joinder of Actions ex Contractu and ex Delictu . . . 374 
 
 SECTION VII. 
 Of Joinder of Actions in Rem and in Personam . . . .376 
 
 SECTION VIII. 
 Of the essential Elements of a Libel 379 
 
 CHAPTER III. 
 
 Of Mesne Process in Suits in personam. 
 
 SECTION I. 
 Of the Process of Arrest of the Person of the Defendant . . 388 
 
 SECTION II. 
 Of Mesne Process by Attachment of Goods .... 390 
 
 SECTION III. 
 Of Foreign Attachment 392 
 
 SECTION IV. 
 Of the Monition in Suits in Personam 394
 
 X CONTENTS. 
 
 CHAPTER lY. 
 
 Of Mesne Process in Suits in Rem .... 396 
 
 CHAPTER V. 
 
 Of Mesne Process in Rem and in Personam . . . 399 
 
 CHAPTER VI. 
 
 Of Contumacy and Default. 
 
 SECTION I. 
 Of Contumacy on the Part of the Libellant ..... 400 
 
 SECTION 11. 
 Of Contumacy on the Part of the Defendant .... 400 
 
 CHAPTER VII. 
 
 Of the Claim and other Proceedings prior to the Answer. 
 
 SECTION I. 
 Of the Claimant 402 
 
 SECTION II. 
 Of Stipulations * . 406 
 
 SECTION III. 
 Of Delivery on Appraisement 416 
 
 SECTION IV. 
 Of Stipulations for Costs 417 
 
 SECTION V. 
 
 Of the Power of the Court to order Documents to be produced be- 
 fore Issue is joined . . . . . . . . . 420
 
 CONTENTS. XI 
 
 CHAPTER YIII. 
 Of the Answer 422 
 
 CHAPTER IX. 
 Of Amendments 429 
 
 CHAPTER X. 
 Of Set Offs and Cross Libels 433 
 
 CHAPTER XI. 
 
 Of the Trial and its Incidents. 
 
 SECTION I. 
 Of the Trial generally ......... 435 
 
 SECTION II. 
 Of Evidence in Admiralty ....... 435 
 
 CHAPTER XII. 
 
 Of Commissioners and Referees . . ... . . 455 
 
 CHAPTER XIII. 
 Of Prize Causes 458 
 
 CHAPTER XIV. 
 
 Of Costs in Admiralty . . 479 
 
 CHAPTER XV. 
 Of Tenders 484
 
 XU CONTENTS. 
 
 CHAPTER XVI. 
 Of the Decrees in Admiralty 487 
 
 CHAPTER XVII. 
 Final Process 494 
 
 CHAPTER XVIII. 
 
 Of Appeals. 
 
 SECTION I. 
 Of Appeals from the District to the Circuit Court . . . .496 
 
 SECTION II. 
 Of Appeals from the Cii'cuit to the Supreme Court . . . 499 
 
 APPENDIX. 
 
 Statutes of the United States on Subjects connected 
 
 WITH Shipping . . 511 
 
 New York Pilot Act 713 
 
 Massachusetts Pilot Act 727 
 
 Admiralty Rules prescribed by the Supreme Court of 
 
 THE United States 747 
 
 General Rules 761 
 
 District Court Rules in Admiralty, Massachusetts Dis- 
 trict 763 
 
 Forms 763 
 
 Index 773
 
 BOOK I . 
 
 ON THE LAW OF SHIPPING 
 
 (CONTINUED.)
 
 A TREATISE 
 
 LAW OF SHIPPING AND ADMIRALTY. 
 
 CHAPTER XIY. 
 
 OF THE DUTIES AND POWERS OF THE MASTER. 
 
 SECTION I. 
 
 OF THE FOUNDATION AND NATURE OF THE MASTER'S AUTHORITY. 
 
 The master of a ship holds a peculiar and responsible position. 
 As the owner is bound, in order that his ship may be seaworthy, 
 to put in command of her a master who is fully competent in re- 
 spect of skill, care, and honesty,^ so the master is bound to all 
 whose interests are under his charge, as owners of the ship, or 
 hirers of it, or as owners of the goods, or even as insurers of the 
 ship, goods, or freight, to use proper care and skill, and entire in- 
 tegrity in the protection and preservation of their interests. He 
 must see to the lading of the goods on board ; and take care that 
 the dunnage, the stowage, and arrangement of the several articles 
 are all that they should be. He must ascertain that the condition 
 of the ship, as to her hull, rigging, and all appurtenances, and all 
 provisions and supplies, is satisfactory. He must take on board 
 and carefully preserve all such papers as the ship should carry and 
 as fall within his duty. During the whole voyage he must con-' 
 duct himself, not only under ordinary circumstances, but in all 
 exigencies and emergencies, witli due discretion, courage, and 
 energy, and complete fidelity to his duties. 
 
 * Propeller Niagara v. Cordes, 21 How. 7.
 
 4 ON THE LAW OF SHIPPING. [BOOK I. 
 
 If the ship be wrecked, or in peril, or arrested, or captured, it is 
 his duty to stay by her as long as any rational possibility exists 
 that any good can be done by him, nor should he desert her until 
 all hope is gone ; to use the common phrase among seamen, 
 "the captain should be the last man to quit the ship."^ 
 
 It is impossible to define all these duties, or state them in detail. 
 Some of them, and some of the most important among them, arise 
 only on extraordinary occasions ; and must be measured and de- 
 fined by the circumstances of each case, and the exigencies which 
 it presents. 
 
 The master of a vessel at a foreign port has no authority to con- 
 tract with the government of that country to convey its banished 
 subjects to another country, and although he may justify what is 
 done while in the foreign jurisdiction, yet as soon as he passes out 
 of it he is guilty of a wrong, and liable criminally.^ 
 
 In general, the established usage and custom of seamen, and 
 the very nature of their duties, are the best, if not the only guide, 
 in determining what they require. So, too, this usage gives them 
 certain privileges, which are always subject to bargain between 
 the owner and master, but are generally very similar in similar 
 ships ; as the privilege of carrying goods for himself, or for others, 
 in certain parts of the ship, he receiving the freight, or a right to 
 certain amount of tonnage.^ So too he has his primage, which is a 
 small percentage on the freight, and is a perquisite over and above 
 his wages ; ^ in this country it is, we believe, in foreign voyages 
 
 ^ Thus in Propeller Niagara v. Coi'des, 21 How. 7, it was held that, after a 
 vessel was stranded, the master was guilty of culpable negligence in leaving the 
 vessel and going home, without taking care of the cargo. 
 
 2 Regina v. Lesley, Bell, C. C. 220. 
 
 ' King V. Lenox, 19 Johns. 2.35. 
 
 * Scott V. Miller, 5 Scott, 13, 15 ; 2 MoUoy, ch. ix. s. v. ; Charleton v. Cotes- 
 worth, Ryan & M. 175. And where goods, by the bill of lading, were to be 
 delivered to the consignee, " he paying freight for the same as per charter-party, 
 with primage and average accustomed," it was held that the master was entitled 
 to receive primage from the consignee ; although the contract between the ship- 
 owner and the agents of the consignee (there being no charter-party) was for £ 5 
 per ton freight, and did not notice primage ; and although the master contracted 
 with the ship-owner to receive a sum certain, "in lieu of all cabin and other 
 allowances, to commence from the day of victualling the ship, and for which he 
 is to mess the oOicers." Best v. Saunders, Moody & M. 208. In Vose i'. Morton, 
 
 5 Gray, 594, the bill of lading contained the usual clause, "with primage and
 
 CH. XIV.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 6 
 
 usually five per cent. After the voyage has commenced it seems that 
 the owners have a right to change it reasonably and in good faith, 
 and are then not liable to the master for all the wages or privileges 
 previously stipulated for.^ 
 
 The maxim that freight is the mother of wages does not apply to 
 the case of the master, and, although he cannot sue the vessel in 
 rem, yet the owners of the vessel are liable to him for wages in 
 case of capture,^ or shipwreck,^ to the time of the dissolution of 
 the contract. 
 
 If the master is hired by the general owners of the vessel, but 
 paid by the charterers, he cannot recover of the latter for his ser- 
 vices in superintending laborers employed by the owners and un- 
 derwriters in saving the vessel and cargo.^ But trustees who hold 
 the title of a vessel, and control and manage her for the benefit 
 of themselves and others, are liable for the wages of the master 
 appointed by them.^ 
 
 In a case where the master was to receive a certain sum per 
 
 average accustomed." Held that accustomed qualified primage as well as average^ 
 and that evidence was admissible to show an universal and well-understood cus- 
 tom of the trade to pay no primage. In Rennell v. Jvimball, 5 Allen, 356, the 
 master of the vessel was to have five per cent on the gross earnings of the ship. At 
 a foreign port the ship had earned a certain amount of money under a charter- 
 party. The master received his primage on this amount there, and the agent of 
 the vessel charged in his account of the disbursements of the vessel, a commission 
 on the amount so paid. Held, that the master was liable therefor. We are 
 unable to see any reason for this decision. It would seem clearly to be a charge 
 on the ship, and not on the master personally. 
 
 • Pawson V. Donnell, 1 Gill & J. 1. It was held, in this case, that if by the 
 exercise of this privilege a special injury is done to either party, the ship-owner 
 must bear the loss and make a reasonable indemnity ; also, that if, by the change, 
 the captain is necessarily discharged from the performance of all his duties for 
 ■which a remuneration has been stipulated, his claim to such remuneration is 
 thereby extinguished, and that if part of the duties have been executed, then such 
 a proportion of the stipulated compensation should be allowed as appeared just 
 on coriiparing the services rendered with those which remained unperformed, and 
 for the new part of the voyage the usual compensation should be paid, so that the 
 parties should be placed in as nearly the same situation as possible, had a pre- 
 vious contract for the voyage as changed been entered into between them. See 
 also Vol. I., p. 95, note 2, and p. 97, note 1. 
 
 * Moore v. Jones, 15 Mass. 424. 
 
 ^ Hawkins V. Twizcll, 5 Ellis & B. 883, 34 Eng. L. & Eq. 195. 
 
 ♦ McGilvery v. Capen, 7 Gray, 523. 
 
 ' Winsor v. Sampson, 1 Sprague, 548.
 
 6 ON THE LAW OF SHIPPING. [BOOK I. 
 
 month as wages and a commission of five per cent, and also a pro- 
 portion of tlie profits, it was lield that he could not traffic on his 
 own account, for his own benefit.^ 
 
 A master who takes his wife to sea with him without permission 
 is liable for her passage.^ So if he has permission to take his wife, 
 and nothing is said about taking his child, lie is liable for the 
 child's passage.^ But he is not bound to pay freight for a piano 
 belonging to his wife, which is not an incumbrance, but is used by 
 the passengers.^ In the absence of any usage to the contrary, the 
 expenses of rating and regulating a chronometer belonging to the 
 captain, but which is used for the benefit of the ship, is to be borne 
 by the ship, although there is another one on board belonging to 
 the ship,^ Nor is the master liable for the use of state-rooms 
 which otherwise would have remained empty .^ Nor for the use 
 of an assistant steward who waited on the other passengers as well 
 as on the captain and his family.^ 
 
 A master of a vessel has been held liable to account to the 
 managing owner for the passage-money due from passengers 
 carried by him, even though the money never came into his 
 hands.* In Calcuttar, it is customary in warm weather for the 
 master of a vessel to ride when employed in the ship's business, 
 and in the absence of an express agreement to the contrary, 
 such a charge would belong to the ship to pay, and not to the 
 master personally.^ In a case in Maine, the agreement was that 
 
 * Mathewson v. Clarke, 6 How. 122. 
 » Rennell v. Kimball, 6 Allen, 356. 
 
 ' Winsor v. Sampson, 1 Sprague, 548. 
 
 * Rennell v. Kimball, 5 Allen, 356. The master was held liable in this case 
 for passage-money under the following peculiar circumstances. The ship was 
 chartered for a round voyage. The charterers had an agent in Calcutta, and a 
 person who desired to come to this country went to him and paid him for 
 his passage. This agent had charge of the disbursements of the vessel at Cal- 
 cutta. The case was sent to a Master in Chancery, who found these facts, 
 and also that for the voyage in question, under the charter-party, the owner 
 was entitled to the cabin, for passengers, and that the master, although he acted 
 in good faith, was liable for this amount. An exception was taken to this 
 finding, but the ruling was sustained by the court, without assigning any reason 
 therefor. 
 
 ' Rennell r. Kimball, 5 Allen, 356. The case was heard by a Master in 
 Chancery, who reported the fact of the existence of the usage, but also found that 
 a special contract existed between the parties which took the case out of the
 
 CH. XIV.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 7 
 
 the master should receive twenty dollars per month and five per 
 cent commissions. The vessel at the time was in another State. 
 Afterwards, while the vessel was in a foreign country, he was 
 discharged. Held, that he was entitled to his expenses incurred 
 for the benefit of the vessel while the contract lasted ; that he was 
 therefore entitled to his expenses in going to the vessel to take 
 command, but was not entitled to his expenses incurred after he 
 was discharged, for the purpose of getting home. During the 
 time he was master he received some money as demurrage while 
 the vessel was under a charter-party. Held, that he was entitled 
 to his commissions on this.^ 
 
 The powers of the master are not quite so indefinite, perhaps, 
 as his duties. They rest upon certain ascertained principles, and 
 are, for the most part, measured by exact rules. He is the agent 
 of the owner ; appointed by him, and by that appointment author- 
 ized to act as his agent in all matters which are fairly embraced 
 within the scope of his appointment.''^ To know what this au- 
 thority is, in general, or under any particular circumstances, we 
 may appeal to the law of agency, and the principles of that law 
 which are applicable to the particular case. Thus, the universal 
 principle, that he who appoints another to do anything for him, 
 authorizes the person thus appointed to do whatever fairly and 
 properly belongs to the doing of that thing, suffices for most of 
 these questions. It is not, however, a rule equally universal, that 
 authority to do a certain thing, always implies authority to do 
 whatever can, in any emergency, become necessary for the doing 
 of it. For, if circumstances should make an effort, expenditure, 
 or sacrifice, necessary to the doing of the thing, which would cer- 
 
 usage. The evidence of the contract was that just before the vessel sailed the 
 managing owner put in the hands of the master a letter containing the sentence, 
 " I do not expect to pay any riding bills " ; and that at the bottom of the letter 
 the master wrote, " A duplicate received." The court overruled an exception to 
 this finding; but gave no reasons therefor. We are unable to see on what 
 grounds the acknowledging the receipt of a letter amounted to an assent to its 
 terms. 
 
 * Woodbury v. Brazier, 48 Maine, 302. 
 
 * But the master of a ship has no more authority to bind his owners than any 
 other agent has to bind his principal. Pope v. Nickerson, 3 Story, 465, 475. He 
 is not the general agent of the owners. Mitcheson v. Oliver, 5 Ellis & B. 419, 32 
 Eng. L. & Eq. 219, 232, per Parke, B.
 
 8 ON THE LAW OF SHIPPING. [BOOK I. 
 
 taiiily deter any reasonable man from doing it, the agent ought 
 then to consider his authority as at an end. 
 
 Where the owner is himself present, or within easy access, that 
 agency of the master which is founded on necessity disappears, for 
 the necessity has ceased to exist.^ We have seen that he may sell 
 the ship when the sale is justified by a sufficient necessity ; ^ but 
 no necessity can be sufficient if the owner were so near that the 
 master was not obliged to act without his instructions.^ And if a 
 master is specially empowered to sell a vessel in a particular man- 
 ner, his principal is not bound if he exceeds his authority, the 
 vendee knowing that the master was specially authorized.* 
 
 In the same way he may do many things abroad, which he can- 
 not do at home ; as to raise money on bottomry,^ charter the ship,^ 
 or repair her or supply her needs.'^ As the rule is generally 
 
 1 Lister v. Baxter, 2 Stra. 695 ; Arthur v. Barton, 6 M. & W. 138, 143, per 
 Lord Abinger, C. B. ; Ship Lavlnia v. Barclay, 1 Wash. C. C. 49; Patton v. 
 Sch. Randolph, Gilpin, 457 ; Johns v. Simons, 2 Q. B. 425 ; Beldon v. Camp- 
 bell, 6 Exch. 886, 6 Eng. L. & Eq. 473. "But this doctrine cannot be 
 safely extended to the case of an owner pro hac vice in command of the 
 vessel. Practically this special ownership leaves the enterprise subject to the 
 same necessities as if the master wei'C master merely, and not charterer, and the 
 maritime law gives him the same power to borrow to meet that necessity, as if he 
 were not charterer." Per Curtis, J., in Thomas v. Osborn, 19 How. 22, 29, 
 deciding that the charterer has the power to bind the vessel for repairs though he 
 may not have the power to bind the owners. 
 
 * See Vol. I., p. 68-74. But the master has no authority to sell part of a 
 steamboat to a person for the purpose of keeping a bar. Kelly i\ Dickinson, 15 
 Misso. 193. 
 
 ^ See Vol. L, p. 73, note 3. 
 
 * Johnson v. Wingate, 29 Maine, 404. 
 
 * See Vol. L, p. 140. 
 
 « See Vol. L, p. 276, note 3. 
 
 ' As a general rule, in a foreign port, the master has authority to bind the 
 owners for repairs, or supplies furnished the vessel, or to pledge the credit of the 
 owners by raising money for necessary purposes. Hoskins v. Slayton, Cas. Temp. 
 Hardw. 376 ; Rich v. Coe, 2 Cowp. 636 ; Speering (Speerman, in 2d ed.) v. De- 
 grave, 2 Vern. 643 ; Stewart v. Hall, 2 Dow, 29 ; Ex parte Bland, 2 Rose, 91 ; 
 Webster v. Seekamp, 4 B. & Aid. 352 ; Arthur v. Barton, 6 M. & W. 138, 143 ; 
 Edwards v. Havell, 14 C. B. 107, 24 Eng. L. & E(i. 303 ; Milward v. Hallett, 2 
 Caines, 77, 81; Marquand v. Webb, 16 Johns. 89; The Aurora, 1 Wheat. 96; 
 Abbott V. Baltimore S. P. Co. 1 Md. Ch. 542 ; The Hilarity, Blatchf & H. Adm. 
 90; The Gustavia, id. 189; Thomas v. Osborn, 19 How. 22, 28; Henshaw v. 
 Rollins, 5 La. 335. See also James ';. Bixby, 11 Mass. 34.
 
 CH. XIV.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 9 
 
 stated, the master has authority in a foreign port to bind his 
 owners. JPor the purposes of this rule the States of this country- 
 are considered as foreign as to each other.^ Evidence of the 
 name and place painted on the stern of a vessel is admissible to 
 shov to what port she belongs. ^ 
 
 To authorize the master of a vessel to bind any person as 
 owner, it must appear that the master was at the time his agent.^ 
 And the tendency of the cases in England is to hold the person, 
 furnishing necessaries to a vessel at the request of the master, to a 
 strict proof of this.* 
 
 If the master is also a part owner, he has authority to settle 
 a claim for demurrage, and he would probably have this right 
 if he vere not a part owner.^ Nor is it the place, which deter- 
 mines his power to do these things ; for if he be abroad, and the 
 
 ' Stearns v. Doe, 12 Gray, 482; Bliss v. Ropes, 9 Allen, 344; Negus v. Simp- 
 son, Sup. Jud. Ct Mass. 1868. 
 
 « Stearns v. Doe, 12 Gray, 482. 
 
 ' Thus in Hussey v. Allen, 6 Mass. 163, the vessel was owned by A and B at the 
 time she left home. Subsequently supplies were furnished in a foreign port, and 
 it appearing that A and B had parted with their interests in the vessel before this 
 time, it Yas held that they were not liable. And in Mackenzie v. Pooley, 11 
 Exch. 63i, 34 Eng. L. & Eq. 486, it was held that where the vessel was sold 
 after she sailed, the vendee was not liable for money borrowed by the master to 
 buy necessaries in a foreign port, although at the time the defendant was the reg- 
 istered o-wner. See also Dame v. Hadlock, 4 Pick. 458; Brooks v. Bondsey, 17 
 Pick. 441. 
 
 * Thus, 'n Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, the 
 action was for goods sold and delivered, for work and materials provided, etc. 
 The defendant was, during the repairs, and afterwards, the registered owner of 
 the ship. One Christie appeared on the register as master from August 7, 1850, 
 until September 14, 1852. On the latter day the name of Thompson was substi- 
 tuted. The plaintiff proved that the repairs and articles furnished were neces- 
 sary, that they were furnished from October 10, 1852, to November 17th, of that 
 year. During that time Thompson was on board acting as master, and gave the 
 orders for the repairs. The defendant showed that on the 14th of July of that 
 year he entered into an agreement to sell the ship to one Gompertz on certain 
 conditions, he to have the possession of the ship to fit her for a voyage to Aus- 
 tralia. Thon.pson was appointed by Gompertz, and the repairs and supplies 
 were furnished while in his possession. Subsequently, the conditions being bro- 
 ken, the defendant took possession of the vessel again. Held, that he was not 
 liable. This case virtually overrules Frost v. Oliver, 2 EUis & B. 301, 20 Eng. 
 L. & Eq. 114. 
 
 «* Alexander v. Dowie, 1 H. & N. 152, 37 Eng. L. &Eq. 549.
 
 10 ON THE LAW OF SHIPPING. [BOOE I. 
 
 owner be there also ; or if an agent be there especially authorized 
 and instructed by the owner upon these points, there is no neces- 
 sity for the master's authority ; and consequently it does not 
 exist.^ If, however, in a home port, and under the owner's eye, 
 he makes contracts respecting the ship to which the owner assents 
 in fact, or to which he justifies the other contracting party in believ- 
 ing that he assents,^ or if he voluntarily accepts and retains 
 the benefit of the contract when it is executed, when he is per- 
 fectly at liberty to return or renounce such benefit, in all such 
 cases the owner is responsible, on general principles, as has been 
 previously stated. 
 
 One general limitation of the power of the master to bind the 
 owner by the contracts he makes for him, is this : they must 
 relate to the condition, or the use and employment of the ship, 
 and be within the usual duty and business of a master ; ar.d they 
 must not be so unreasonable in themselves as to raise tlie sus- 
 
 ' See ante, p. 8, note 1. 
 
 ' In The Sch. Tribune, 3 Sumner, 144, the master of a vessel made a charter- 
 party at a home port. It was held, under the circumstances, to be bindiig on the 
 owners. Speaking of the power of the master, Mr. Justice Story said : " As to 
 his right to make such a contract in the home port of the owners, I agrie that it 
 cannot be ordinarily presumed from his character as master. It is not an incident 
 to his general authority ; nor can it be presumed, under such circumstances, as an 
 ordinary superadded agency. But there are peculiar circumstances, however, in 
 the present case, which do create some presumption of such a superadded agency. 
 In the first place, such had been his authority in the former voyages of the vessel; 
 and such seems also to have been his authority under her subsequent employment. 
 And I think it might fairly be presumed, that in the home port he woild scarcely 
 have had the rashness to make so important and definite a contract ■without some 
 authority." And in The Flash, Abbott, Adm. 67, it was held that the master 
 may make an ordinary contract of affreightment at the home port. The learned 
 judf^e, in the case of The Tribune, supra, was also of opinion that ona of the own- 
 ers, who was the ship's husband, must have had full knowledge of vhat the mas- 
 ter had done. But it is not sufficient that the master acted with the privity of 
 the owner unless he Avas his agent. Mitcheson v. Oliver, 5 Ellis & B. 419, 32 
 EnfT. L. & Eq. 219. And in Jordan v. Young, 37 Maine, 276, it was held, that 
 the master of a vessel has no authority in a home port to order repiirs, and that a 
 vessel which is moored at the port adjoining that in which the ownar resides is at 
 her home port. But see Provost v. Patchin, 5 Seld. 235, where it is held that the 
 master, as the general agent of the owners, has authority to bind (hem in a home 
 {)ort for necessary repairs, unless it can be shown that the owners themselves, or 
 a ship's husband, managed the vessel, and that the party contracting with the 
 master was aware of this.
 
 CH. XIV.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 11 
 
 picion that the contracting party act6d fraudulently or recklessly 
 in making them. By the general rule of the maritime law the 
 master has the power to hire seamen, and the contract which 
 he makes with them for wages is binding on the owners. ^ 
 
 If the master, while abroad, enters into a contract which binds 
 the owner, that contract must be construed at home by the laws 
 of the place where it was made, unless it is plain that it is to 
 be executed at home, and under the home law.^ But the master 
 of a ship has the powers, as agent of the owner, which the laws 
 of his own country give to him and no other, unless the owner 
 expressly, or by some sufficient action, gives him more power 
 or holds him out as possessing it.^ 
 
 The master has no power, as agent of the owner, to settle, or 
 deal with any claims or questions that do not accrue or arise 
 while he is master.^ If the contracts which he makes are in his 
 own name, then it is said that the owner cannot be made liable 
 for them, on the contracts.^ But most maritime contracts on 
 
 ' Some doubt has been expressed whether this rule applies to fishing voyages, 
 but we think in the absence of a usage to the contrary the power of the master 
 would be considered the same in voyages of this description as in freighting 
 voyages. In Sherwood v. Hall, 3 Sunnier, 127, in Luscom v, Osgood, 1 Sprague, 
 82, and in Walcott v. Wllcutt, U. S. D. C. Mass., Boston Courier, May 29, 1858, 
 it was held, that the owners of a whaling ship were liable for damages for the ab- 
 duction of a minor by the captain, although they had no personal knowledge of 
 the fact, the act being held to be within the scope of the authority of the master 
 as agent of the owners. In Baker v. Corey, 19 Pick. 496, it was held that the 
 owners of a fishing vessel might hire men to navigate the vessel and to fish for 
 the account of the owners, on wages instead of shares, and that although the 
 master might not have this power virtute officii, yet if he wei'e also a part owner, 
 and the other owners did not interfere in the management of the vessel, he would 
 be deemed their agent, and they would be bound by his acts. 
 
 - See 2 Parsons on Contracts, 94-100. 
 
 ' Pope V. Nickerson, 3 Story, C. C. 465. The action in this case was assump- 
 sit on four bills of lading. The question arose by what law the bills of lading 
 were to be governed, whether by the law of Spain, where the contracts of ship- 
 ment were made, or by the law of Pennsylvania, where the goods were to be de- 
 livered, or by the law of Massachusetts, where the owners resided, and to which 
 the vessel belonged. The court held, that the laws of Massachusetts were to 
 govern. See also The Bahia, Brow. & L. Adm. 292; Peninsular Steam Nav. 
 Co. V. Shand, 3 Moore, P. C. N. s. 272 ; The Packet, 3 Mason, 255 ; The Nelson, 
 1 Hagg. Adm. 169. See contra, Malpica v. McKown, 1 La. 248 ; Arayo v. Cur- 
 rel, 1 La. 528. 
 
 * Kelley v. Merrill, 14 Maine, 228. 
 
 * Garnham v. Bennet, 2 Stra. 816; Thorn v. Hicks, 7 Cow. 697; Hussey i-.
 
 12 ON THE LAW OF SHIPPING. [BOOK I. 
 
 which the owner should be liable, give to the contracting party 
 a lien on the ship, and through this, the owner may be indirectly 
 reached. And it may well be doubted whether, in this country, 
 the owner himself might not, generally, be made directly respon- 
 sible.^ The master is, in almost all cases, where he makes a 
 contract for his ship, himself responsible ;^ as on all charter-par- 
 ties or bills of lading signed by him.^ And if goods on board are 
 injured by the uuskilfulness or wrong doing of the master, or 
 of the crew without the fault of the master, or if they are stolen, 
 or lost so as to make the owner responsible, the master, generally, 
 would be responsible also ; ^ for the maritime law considers both 
 the owner and master as carriers of the cargo.^ 
 
 Allen, G Mass. 163; James v. Bixby, 11 Mass. 34, 37; Wainwriglit v. Crawford, 
 3 Yeates, 131. 
 
 ^ See Phillips v. Tapper, 2 Barr, 323. In Negus v. Simpson, Sup. Jud. Ct. 
 Mass. 1868, the owner of the ship Rose Standish was held liable on the following 
 contract signed by the master : — 
 
 " Received of T. S. Negus & Co., on account of vessel and owners, a chronom- 
 eter, name Negus, No. 1166, value two hundred and forty dollars, on hire, for the 
 use of which we jointly and severally promise to pay to them at and after the rate 
 of six dollars per month until the said chronometer shall be returned to them, or 
 until they shall be served with a protest of the loss if any of the same. The said 
 chronometer is to be used on board the good and seaworthy ship called the Rose 
 
 Standish, whereof H. D. Hutchings of is master, and bound for Callao and 
 
 back, and is to be returned to the said T. S. Negus & Co. without expense to them, 
 and without charge or claim for salvage or general average at the expiration of the 
 present voyage, or within fourteen months from the date hereof, in the same good 
 order as received. Insured by T. S. Negus & Co. against unavoidable damage 
 or total loss by fire or water at sea : all and every other risk or risks whatsoever, 
 are taken by the undersigned. Captain Hutchings has the privilege of buying 
 this chronometer within six months from date for $ 240 cash, without charge for 
 hire, but is to pay insurance $ 6 per six months, rate of one dollar per month. 
 H. D. Hutchings, Master Ship Rose Standish, New York, November 20th, 1861." 
 
 ^ Rich V. Coe, 2 Cowp. 636; Marquand v. Webb, 16 Johns. 80 ; James v. Bixby, 
 11 Mass. 34; Stocker v. Corlett, 1 Const. R. So. Car. 81. In Sydnor v. Hurd, 8 
 Texas, 98, the master was held liable on the following instrument : " Due Sydnor 
 & Bone, or order, by Sch. Cornelius and owners for supplies and materials 
 received, the sum of two hundred and six dollars. William Hurd." 
 
 * Watkinson v. Laughton, 8 Johns. 213 ; The Sch. Leonidas, Olcott, Adm. 12, 
 15. But in an action of assumpsit for the breach of a contract of affreightment 
 the owner and master should not be joined. Patton v. Magrath, Rice, 162. 
 
 * Morse v. Slue, 1 Vent. 190, 238 ; Barclay i'. Cuculla y Gana, 3 Doug. 389 ; 
 Watkinson v. Laughton, 8 Johns. 213. 
 
 •* Elliott V. Rossell, 10 Johns. 1 ; Oakey v. Russell, 18 Mart. La. 58.
 
 CH. XIV.] MASTER'S POWER FROM NECESSITY. 13 
 
 Although the master may, in a foreign port, make a charter- 
 party wliich shall bind the owners, it is said that he cannot make 
 either that or any other contract under seal, so as to bind them, 
 without express authority.^ 
 
 A master of a vessel which is a common carrier of passengers, 
 may, it has been said, properly refuse a passage to a person who has 
 been forcibly expelled from the place to which the vessel is going, 
 by a vigilance committee, under threat of death if he return, and 
 when the taking of such passenger would promote further diffi- 
 culty ; but this refusal should precede the sailing of the vessel. 
 And if the passenger has violated no rule of the vessel in going 
 aboard, and has conducted himself properly during the voyage, 
 the master has no right to stop a returning vessel, put him aboard 
 of it and send him back to the port of departure. And if he do 
 so, he is liable in damages.^ 
 
 An agreement of the owners with the master of a ship " to pay 
 all legal expenses which may arise from his chastisement of the 
 crew " has been construed to extend only to legal expenses in- 
 curred by him in groundless suits and prosecutions against him 
 for chastisement of the crew within proper limits, and in lawful 
 maintenance of the discipline of the ship.^ 
 
 SECTION II. 
 
 OF THE master's POWER FROM NECESSITY. 
 
 As the master's power often arises from necessity, and is meas- 
 ured by it, it is important to ascertain what this necessity must be 
 
 ' See Vol. I. p. 276, n. 3. 
 
 ' Pearson v. Duane, 4 Wallace, 605. In Chamberlain v. Chandler, 3 Mason, 242, 
 which was an action against a master of a vessel for ill-treatment towards his 
 passengers on the voyage, Ml-. Justice Storr/ set forth at length the rights of pas- 
 sengers, and held that " their contract is not for mere ship-room, and personal 
 existence on board ; but for reasonable food, comforts, necessaries, and kindness. 
 It is a stipulation, not for toleration merely, but for respectful treatment, for that 
 decency of demeanor which constitutes the charm of social life, for that attention 
 which mitigates evils without reluctance, and that promptitude which administers 
 aid to distress." 
 
 2 Babcock v. Terry, 97 Mass. 482.
 
 14 ON THE LAW OF SHIPPING. [BOOK I. 
 
 in each particular instance. For this necessity is very different, in 
 different cases. Courts and text-writers use the same words in all 
 these cases, saying in all alike that the master has the power from 
 necessity ; but they must mean very different things. Thus, we 
 have already seen what the necessity is which alone gives the 
 master power to sell the ship without consulting the owner. ^ And 
 it is also true that he may borrow money and hypothecate the ship 
 for it by a bottomry bond, if this be necessary .^ And he may also 
 bind the owner to pay for supplies and repairs, if those supplies 
 and repairs were necessary.^ We shall consider hereafter how far 
 the vessel is liable for supplies and repairs furnished in a foreign 
 port. The master has no power to draw upon the owners by a bill 
 of exchange for supplies furnished in a foreign port, and render 
 them liable as acceptors.* 
 
 To justify a sale, the necessity must be, as we have seen, of the 
 most positive and stringent character. To make the owner respon- 
 sible for repairs, however, it could not be necessary to show that 
 the ship would have sunk or gone to ruin without them ; for if 
 they are, on the whole, reasonable and proper, that is enough.^ 
 
 1 See Vol. I. p. 68 - 74 ; Brightman v. Eddy, 97 Mass. 478. 
 
 ^ See Vol. I. p. 140. 
 
 « Stewart v. Hall, 2 Dow, 29 ; The Aurora, 1 Wheat. 96, per Story, J. ; The 
 Ship Fortitude, 3 Sumner, 228, 236; Burquin t;. Flinn, 1 McCord,_316 ; Milward 
 V. Hallett, 2 Caines, 77 ; Rocher v. Busher, 1 Stark. 27. See also James v. 
 Bixby, 11 Mass. 34. 
 
 * Bowen v. Stoddard, 10 Met. 375 ; May v. Kelly, 27 Ala. 497. 
 
 ^ Mr. Justice Story, \n the case of The Ship Fortitude, 3 Sumner, 228, 237, 
 said : " In relation to what are necessary repairs in the sense of the law, for which 
 the master may lawfully bind the owner of the ship, I have not been able, after 
 a pretty thorough search into the authorities and text-writers, ancient and 
 modern, to find it anywhere laid down in direct or peremptory terms, that they 
 are such repairs, and such repairs only, as are absolutely indispensable for the 
 safety of the ship, or the voyage, or that there must be an extreme necessity, an 
 invincible distress, or a positive urgent incapacity, to justify the master in making 
 the repairs. The general formulary of expression found to be laid down is, simply, 
 that the repairs are to be necessary, without in any manner pointing out what 
 repairs are, in the sense of the law, deemed necessary, or what constitutes the 
 true definition of necessity. But a thorough examination of the common text- 
 writers, ancient as well as modern, will, as I think, satisfactorily show, that they 
 have all understood the language in a very mitigated sense ; and tliat necexsary 
 repairs means such as are reasonably fit and proper for the ship under the circum- 
 stances, and not merely such as are absolutely indispensable for the safety of the
 
 CH. XIV.] MASTER'S POWER FROM NECESSITY. 15 
 
 Again, the necessity which authorizes a borrowing on bottomry, is 
 not the same as either of these ; it need not be so stringent and 
 extreme as the first ; but it must be far greater than the second ; 
 it lies between them.^ A difference exists, however, between the 
 power of the master to sell or dispose of the ship and cargo, and 
 his power to deviate,- to make a jettison of cargo,^ or to cut away 
 masts and rigging for the preservation of the vessel.^ In these lat- 
 ter cases much must necessarily be left to the sound discretion of 
 the master, and if it appears that there was an apparent neces- 
 sity, that he acted with due deliberation, and with an honest intent 
 to do his duty, the act is justified although it should appear that 
 it was not the one best calculated for the safety and preservation 
 of the property at risk. 
 
 In a recent case in Massachusetts, the power of the master in a 
 foreign port to bind the owners for supplies furnished the vessel, 
 was much considered by the court, and the following rules laid 
 down : " He can only procure such supplies and repairs as are, 
 properly speaking, necessary for the ship ; that is, the repairs and 
 supplies are to be such as are reasonably fit and proper, having 
 regard to the exigencies and requirements of the ship for the port 
 where she is lying and the voyage on which she is bound." .... 
 " The true and only test by which to determine whether the 
 master has acted within the limits of his authority is, to ascertain 
 whether the articles or supplies, whatever may be their nature, 
 were necessary under the circumstances in which the vessel was 
 
 placed The necessity may vary according to the 
 
 circumstances of each particular case, and when called in question 
 in an action at law, it can only be determined by a jury, on a con- 
 ship or the accomplishment of the voyage." See also Webster v. Seekamp, 4 B. 
 & Aid. 352; Rocher v. Busher, 1 Stark. 27 ; United Ins. Co. v. Scott, 1 Johns. 
 106 ; Milward v. Hallett, 2 Caines, 77 ; Pratt v. Reed, 19 How. 359. 
 
 ^ See Vol. I. p. 140. In Pratt v. Reed, 19 How. 359, 361, it was said that the 
 only difference between a case of necessity which would authorize an implied hy- 
 pothecation of the vessel for supplies or repairs, and that necessity which would 
 justify the giving of a bond, was, that in the latter case the additional fact must 
 appear, that the master could not procure the money without giving the extra- 
 ordinary interest incident to that species of security. 
 
 ^ Propeller Niagara v. Cordes, 21 How. 7 ; The Sch. Sarah, 2 Sprague, 31. 
 
 « See Vol. I. p. 409, n. 1. 
 
 ♦ Patten ». Darling, 1 Clifford, C. C. 254.
 
 16 ON THE LAW OF SHIPPING. [BOOK I. 
 
 sideration of all the facts which go to make up the exigencies and 
 requirements of the vessel at the time the articles were procured 
 and the credit given." ^ In England it is said that it must appear 
 that it was necessary to pledge the credit of the owner for a thing 
 which was necessary for the due prosecution of the voyage. Thus 
 where several of the crew were injured by the tackle giving way 
 when the vessel was weighing her anchor, and the captain took 
 the men on shore and left them at the first public house, saying 
 the owner would pay for the care taken of them, it was held 
 that the owner of the vessel was not liable for food, lodging and 
 medicine furnished the men, as it appeared that the vessel sailed 
 with the remainder of the crew and other persons, and that there 
 was no prospect at the time the seamen were taken ashore that 
 they would be able to resume the voyage.^ 
 
 The rule appears to be well settled in this country that the 
 master has authority to borrow money not only for the purpose 
 of buying necessaries, but to do it to pay for necessaries already 
 bought.^ And in one case in England no distinction was taken 
 
 * Bliss t'. Ropes, 9 Allen, 341 - 343. In this case a suit was brought against 
 the owner of a vessel to recover the value of a chronometer, and hire for the use 
 of it. The chronometer was furnished the vessel in a State other than that to 
 which she belonged, at the request of the master. In the court below, the plain- 
 tiffs asked the court to instruct the jury that if they were satisfied that a 
 chronometer was, in the legal sense of that terra, a necessary as applied to the 
 vessel and her intended voyage, then the master had implied authority to bind 
 his owners. This instruction was refused, and the court instructed the jury that 
 the plaintiffs must satisfy them not only that the chronometer was reasonably fit 
 and proper to be supplied to a vessel for the purposes of her voyage, but that It 
 was a part of the apparel or furniture of the vessel, to be furnished by the owners. 
 This last instruction was held to be incorrect, and a new trial was ordered. 
 After stating the general rules given In the text, Bigelow, C. J. said : " Of course 
 we speak only of articles designed and intended for the use of the vessel. Ar- 
 ticles of a purely personal nature, obtained by the master for his own use and 
 convenience, can never in any legitimate sense be deemed necessaries, for which 
 the owners can be liable. But it is otherwise with supplies and Implements 
 which are used exclusively for purposes connected with the navigation of the 
 vessel, and which are reasonably fit and proper for the prosecution of the voyage 
 on which a vessel is bound." Bliss v. Ropes was affirmed in Negus v. Simpson, 
 Sup. Jud. Ct. Mass. 1868. See also Bond v. McKinnon, 9 Allen, 344. 
 
 ' Organ v. Brodie, 10 Exch. 449. See post, chapter on Seamen. 
 
 ' Davis V. Child, Daveis, 71, And in Thomas v. Osborn, 19 How. 22, Curtis, 
 J. said ; " It is not material whether the hypothecation is made directly to the
 
 CH. XIV.] MASTER'S POWER FROM NECESSITY. 17 
 
 between the power of the master to borrow to pay for supplies to 
 be furnished, and his power to borrow to pay for supplies already 
 furnished.^ It has, however, been said, that the master has not 
 authority to borrow money after the work has been done, for the 
 purpose of paying the debts.^ But the facts of this case did not 
 call for so broad a rule as is there laid down. 
 
 furnishers of repairs and supplies, or to one who lends money on the credit of the 
 
 vessel in a case of necessity to pay such furnishers The subject has been 
 
 elaborately examined by Judge Ware in Davis v. Child, Daveis, 75, and we are 
 satisfied he arrived at the correct result." In Stearns v. Doe, 12 Gray, 482, 
 Bigelow, J. said : " The authority of a master to borrow money in a foreign port, 
 on the credit of the owner, in his absence, and where there is no agent or con- 
 signee of the vessel, is clear and unquestionable. The limitation on this authority 
 is equally clear. The money must be necessary for the vessel ; that is, it must be 
 required for purposes which a prudent person would deem to be reasonably fit 
 and proper under the circumstances in which the vessel is placed. But we do 
 not understand that a master can in no case borrow money on the credit of the 
 owner to pay an existing liability, or a debt already incurred. There may be 
 such a limitation on his authority where repairs have been done or supplies fur- 
 nished on the personal credit of the owner, and without any stipulation for pay- 
 ment in ready money. Beldon v. Campbell, 6 Exch. 886. But no such restric- 
 tion on the power of the master exists where a debt has been duly contracted, 
 which constitutes a lien on the vessel or cargo, capable of immediate enforcement 
 in a foreign court." The money in this case was lent to pay off the crew at the 
 end of a voyage. See also The Sophie, 1 W. Rob. 368. 
 
 ^ Robinson v. Lyall, 7 Price, 592. The plaintiff, a shipchandler at Portsmouth, 
 sued a ship-owner in London to recover money furnished the master to pay sea- 
 men's wages, and other debts contracted by the master for the use of the vessel at 
 Portsmouth, on her return to England, after an absence of four years and a half. 
 Some of the debts were contracted on the outward voyage. Held, that the owner 
 was liable. In Arthur v. Barton, 6 M. & W. 138, the owner was held liable for 
 money lent the master to procure necessaries. In Johns i\ Simons, 2 Q. B. 425, 
 and in Stonehouse v. Gent, 2 Q. B. 431, the general authority of the master to 
 borrow money was recognized, though it was decided in these cases that the 
 owners were not liable, as communication might have been had with them. In 
 Edwards v. Havill, 14 C. B. 107, the vessel was wind-bound at Newport. The 
 owner resided at Exeter, one day's post from Newport. The master borrowed 
 £5 from a broker to purchase provisions. The defendant contended that the 
 master had no authority to charge the owner except in a case of necessity, and 
 that there was no necessity in this case, because there was an opportunity to 
 communicate with the owner. Held, that the jury were justified in inferring that 
 there was such a reasonable necessity for borrowing the money as to render the 
 owner liable, though there was no proof that the goods might nojt have been obtained 
 by the master on his own credit. 
 
 '^ In Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473, the plaintiff was 
 
 VOL. II. 2
 
 18 ON THE LAW OF SHIPPING. [BOOK I. 
 
 We might go on and speak of other necessities and other powers 
 springing from them, and endeavor to classify them. But it 
 would accomplish no practical good ; for after all, the only, and 
 the reasonable rule must be, that the owner authorizes the master 
 to do everything within the general scope of a master's employ- 
 ment, which a rational man might believe that a rational owner 
 would certainly do for himself if he were present at that time and 
 place. 1 
 
 So a master may, if necessary, appoint another in his place ; 
 although generally, an agent cannot delegate his power or duty 
 without especial authority ; and the master so appointed by a 
 master, may bind the owner in like manner as the original master 
 might have done.^ So a master duly appointed by a charterer, 
 binds not only his immediate principal, the charterer, but also the 
 ship. But if appointed by the charterer he would not, we think, 
 bind the owner personally, without something from the owner, 
 mdicating, by word or act, that the master so appointed was also 
 clothed with authority by the owner.^ A master appointed abroad 
 
 a shipbroker at Newcastle, the defendant a ship-owner residing at Newport, within 
 one day's post of Newcastle. A vessel of the defendant being off Newcastle, it 
 was necessary to tow her in, and the master hired a tug. After his arrival he 
 borrowed money of the plaintiff to pay for the tug. Some repairs being necessary, 
 the master employed a shipwright, who, before the repairs were finished, applied 
 for £10 to pay the workmen on Saturday night. This sum the plaintiff also lent. 
 Parke, B., held that the plaintiff could not recover, on the ground that the owner 
 could have been communicated with, and that he was entitled to say from whom 
 the master should borrow money. In the course of the argument, Parke, B., 
 said : " My notion is, that after the services are rendered, although the owner is 
 liable for such services, the master has no right to change the creditor, which he 
 does by borrowing." Martin, B., also adopts this view. 
 
 * Webster v. Seekamp, 4 B. & Aid. 352. The question in this case was whether 
 the owners of a vessel were liable for copper furnished by the order of the captain. 
 The vessel was bound to the Mediterranean. It was proved that although it was 
 extremely useful to copper vessels bound to that sea, yet it was not absolutely 
 necessary, for many vessels went there without being coppered. The jury having 
 found a verdict for the plaintiff, the court refused to set it aside. Abbott, C. J;, 
 said: "I am of opinion, that whatever is fit and proper for the service on which 
 a vessel is engaged, whatever the owner of that vessel, as a prudent man, would 
 have ordered, if present at the time, comes within the meaning of the term 
 ' necessary,' as applied to those repairs done or things provided for the ship by 
 order of the master, for which the owners are liable." 
 
 ' 1 Bell, Conim. 413. 
 ^ • See Vol. I. p. 281. In Breed v. Ship Venus, U. S. D. C. Mass., 1805, it was
 
 CH. XIV.] MASTER'S POWER FROM NECESSITY. 19 
 
 by a consul, or any official person, agreeably to the usage of mer- 
 chants in the given case, has the same power.^ So the master 
 of a steamboat,^ or of a privateer,^ has similar powers ; always 
 under the definition or description we have given above, of the 
 necessity which creates or confers those powers. 
 
 Even if the contract be without the usual scope of the master's 
 employment, as the purchase of a cargo,* it may be adopted and 
 confirmed by the owner ; and such ratification may be express, or 
 proved by acts which indicate such confirmation, or inferred from 
 the voluntary acceptance and retaining of the cargo,^ or from the 
 fact that that owner had frequently and usually employed that 
 master to act for him in that way.^ But a master cannot, by any 
 official or implied authority, annul or materially vary a contract 
 expressly made by the owner himself ; circumstances may change 
 entirely, and it is perhaps possible that this change be such as 
 to authorize the master to rescind or vary the owner's express 
 contract ; still, in point of fact, it may be said that nothing can 
 raise a presumption of authority to do this ; ^ nor can he bind the 
 owner by a contract which is clearly neither necessary nor bene- 
 ficial ; as to carry goods in his ship free from freight and without 
 any compensation whatever.^ 
 
 held that charterers might lend money for the necessities of the ship to the cap- 
 tain of the ship appointed by themselves, and that a bond given to them by this 
 master could be enforced against the ship. 
 
 * He may also give a bottomry bond. The Zodiac, 1 Hagg. Adm. 320 ; The 
 Nuova Loanese, 22 Eng. L. & Eq. 623. In The Cynthia, 20 Eng. L. & Eq. 623, the 
 consul appointed the master, and gave a bond himself It was pronounced valid. 
 
 ' The Steamboat New World v. King, 16 How. 469. 
 
 ' We shall see, post, p. 28, n. 3, that the owner of a privateer are liable for 
 the torts committed by the master, and it would follow that they are liable for his 
 contracts. 
 
 * Newhall v. Dunlap, 14 Maine, 180; Hewett v. Buck, 17 Maine, 147; Lyman 
 V. Redman, 23 Maine, 289. 
 
 ^ Hewett V. Buck, and Lyman v. Redman, supra. In the latter case, the owners 
 of the vessel sent the cargo which the master had bought to another port. AVhile 
 on the way part was thrown overboard to save the ship, and on arrival the residue 
 was sold and the proceeds applied to the repair of the vessel. Held, that this was 
 a ratification of the purchase by the master. See also Peters v. Ballistier, 3 
 Pick. 495 ; Hathorn v. Curtis, 8 Greenl. 356. 
 
 ' Davis V. Marshall, 4 Harring. Del. 64. 
 
 ^ Burgon v. Sharpe, 2 Camp. 529. 
 
 ' See Dewell v. Moxon, 1 Taunt. 391, and cases Vol. I. p. 287, n. 2. But if a
 
 20 ON THE LAW OF SHIPPING- [BOOK I. 
 
 It may, perhaps, be proper to remark, that the liability of the 
 master and of the owner are both controlled by the rule, that any 
 party who chooses to give credit to one only when he might have 
 held others, cannot afterwards resort to those others. Thus, 
 if one contracts for siipplies to the ship with the owner exclu- 
 sively, he can never look to the master ; ^ and if with the master 
 exclusively, he can never look to the owner.^ And this exclusive 
 credit may be proved either by words and express agreement, or 
 by adequate circumstances. In the latter case, however, the cir- 
 cumstances must be such as would show conclusively that the 
 creditor intended to charge the one, and not to charge the other ; 
 and it is doubtful whether a mere entry on his books charging 
 either party would suffice to do this.^ But it is customary for 
 persons who deal in supplying vessels, to make the charge to the 
 vessel itself, adding sometimes such words as " and all concerned 
 in her." * This would be the same as to the ship " and owners." 
 
 The master can bind one who is actually an owner, although he is 
 not registered as such, and his name does not appear on the papers 
 of the sliip.^ 
 
 SECTION III. 
 
 OF THE POWER OF THE MASTER OVER THE CARGO. 
 
 In regard to the cargo, the master stands in a somewhat dif- 
 ferent relation from that which he holds toward the ship. In 
 general he is bound to receive the cargo, stow it properly, care for 
 it during the voyage, carry it directly, and deliver it safely ; and 
 this comprises all his duties and all his powers. He may, indeed, 
 be himself consignee or supercargo. Then he unites, but does not 
 combine, these several offices. Generally, on the voyage, he will 
 be regarded, in respect to the cargo, as only master of the ship. 
 
 custom is proved to carry a certain class of passengers free, the master can bind 
 the vessel by giving such a free passage. The Steamboat New World v. King, 
 16 How. 469. See also Philadelphia R. v. Derby, 14 How. 468. And he can 
 bind himself to carry the goods of a seaman free, and it would seem that he could 
 also, in such a case, bind the owners. Harrison v. Sch. Eclipse, Crabbe, 223, 
 
 * Farmer v. Davies, 1 T. R. 108 ; Farrel v. M'Clea, 1 Dall. 392. 
 
 ' See cases ante, p. 11, n. 5. ' ' See Vol. I. p. 103, n. 2. 
 
 ♦ See Vol. I. p, 103, n. 2. » See Vol. I. p. 42, n. 3.
 
 CH. XIV.] POWER OF THE PIASTER OVER THE CARGO. 21 
 
 But when the ship and cargo have reached their destination, and 
 he then begins to deal with the cargo, the character of master 
 drops, and that of supercargo or consignee begins. But still these 
 functions may be in some degree contemporaneous, if not mingled. 
 Thus, if at the port of destination he takes the goods on shore, in 
 doing this lie is a master, and when he disposes of them on shore, 
 he is consignee.^ But if he takes them on shore with the intent of 
 there embezzling them, although the wrongful act begins when he 
 is consignee, the wrongful intent in what he does as master makes 
 it a barratrous act, or an offence as master .^ So, if he makes a 
 contract witli a shipper which should give him a lien on the ship, 
 it can only be wlien he makes it in his capacity of master.^ 
 
 Generally, and in the exercise of his duties as master, he is a 
 stranger to the cargo between the lading and the unlading. But 
 
 ^ See United Ins. v. Scott, 1 Johns. 106. If the master is unable to sell the cargo 
 he may leave it with a commission merchant in good credit, and is not obliged to 
 bring it home. Day v. Noble, 2 Pick. 615; Lawler v. Keaquick, 1 Johns. Cas. 
 174 ; Stone v. Waitt, 31 Maine, 40D. It is the custom in many places for goods 
 to be consigned to the master for sale and returns. It has been held that while 
 engaged in the transportation of the goods he is a common carrier, while em- 
 ployed in selling, a factor, and while bringing back the proceeds, a carrier again. 
 That the master is a factor while seUing, is held in Stone v. Waitt, 31 Maine, 409 ; 
 The "Waldo, Daveis, 161. In Moseley v. Lord, 2 Conn. 389, however, it was 
 held that the owner of the vessel was liable for the acts of the master in selling, 
 on the ground that a consignment to the master was a consignment to him in his 
 official capacity, and was the same as a consignment to the owners of the vessel, 
 though it was admitted that if the consignment had been to the master by name, 
 the result woidd have been different. In Emery v. Hersey, 4 Greenl. 407, Kemp 
 V. Coughtry, 11 Johns. 107, and Harrington v. M'Shane, 2 Watts, 443, it was 
 held that where the freight for the carriage of the goods was the only compensa- 
 tion paid, the owners of the vessel were liable as common carriers for the proceeds 
 of the sale as well as for the safe transportation of the goods. But in a subsequent 
 case in New York, it was held that where the master receives a commission for 
 selling the goods, aside from the freight, he is to be considered as the agent of the 
 shipper as to the sale, and the owner of the ship is only responsible for the safe 
 transportation of the goods. Williams r. Nichols, 13 Wend. 58. 
 
 The power of the master to sell, when goods are consigned to him for that pur- 
 pose, is not revoked by the owner selling them while the vessel is at sea, the 
 master having no knowledge of the sale ; and he is considered as the agent of the 
 vendee until some one else is appointed to act for him. Smith v. Davenport, 34 
 Maine, 520. 
 
 ' Cook V. Com. Ins. Co. 11 Johns. 40. • 
 
 ' See Vol. I. p. 173, n. 1 ; p. 187, n. 3.
 
 22 ON THE LAW OF SHIPPING. [BOOK I. 
 
 exigencies and emergencies may arise, in which the master be- 
 comes, of necessity, supercargo or consignee, or to speak more 
 correctly, is clothed with whatever agency or authority may be 
 needed to enable him to protect the property and interests intrusted 
 to liim.^ If the cargo is a perishable one, the master is bound to 
 do all he can to preserve it.^ If a cargo of hides is liable to perish 
 from worms and the heat of the vessel, at an intermediate port, it 
 is the duty of the master to preserve them by having them beaten 
 or ventilated."^ If goods are wet, he should, if it is possible, un- 
 pack and dry them.* For this purpose he may open the packages.^ 
 He is not, however, bound to repair the goods ; ^ nor to delay his 
 voyage for tiie sake of the goods.'^ 
 
 In case of capture the master should do all in his power to pro- 
 cure the restoration of the cargo,^ but he is not bound to act fraudu- 
 lently.^ The question has arisen in the case of the seizure of the 
 vessel and cargo for breach of a blockade, how far the act of the 
 master in attempting to enter is to be considered as the act of the 
 owner of the cargo. The general rule which has been laid down 
 is, that if the vessel sails with a full knowledge that the port of 
 destination is blockaded, there is a presumption that this is done 
 with the full knowledge of the owner of the cargo, and he is not 
 allowed to prove the contrary ; but if the blockade is proclaimed 
 subsequently to the sailing of the vessel, the shipper is not bound 
 by the act of the master in seeking to enter after being warned 
 off.io 
 
 * The Gratitudine, 3 Rob. Adra. 240, 257; Vlierboom v. Cbapman, 13 M. & 
 W. 230, 239 ; Douglas v. Moody, 9 Mass. 548 ; Gillett v. Ellis, 11 111. 579. 
 
 '' The Brig Collenberg, 1 Black, 170. 
 
 ' The Bark Gentleman, Olcott, Adni. 110. This case was reversed on appeal, 
 1 Blatchf. C. C. 196, but the law on this point was not controverted. See also 
 Rogers v. Murray, 3 Bosw. 357. 
 
 * Chouteaux v. Leech, 18 Penn. State, 224 ; Propeller Niagara v. Cordes, 21 
 How. 7; Blocker v. Whittenburg, 12 La. Ann. 410. 
 
 ^ Bird V. Cromwell, 1 Misso. 81. 
 
 " Charleston Steamboat Co. v. Bason, Harper, 262. 
 
 ' Steamboat Lynx v. King, 12 Misso. 272; Soule v. Rodocanachi, 1 Newb. 
 Adm. 504. 
 
 ' It is sufficient if what he does is done in good faith, and he is only answerable 
 for fraud or intentional neglect. Cheviot v. Brooks, 1 Johns. 364. 
 
 » Ilannay v. Eve, 3 Cranch, 242. 
 
 "* The Adonis, 5 Rob. Adra. 256 ; The Brig Nayade, 1 Newb. Adm. 366.
 
 CH. XIV.] POWER OF THE MASTER OVER THE CARGO. 23 
 
 He may sell the whole cargo, if he can neither take it on nor 
 transship it, and it is perishable and will be destroyed or impor- 
 tantly diminished in value, before he can obtain instructions from 
 the owner.^ So, too, he may sell a part of the cargo, in order to 
 raise funds to pursue the voyage and carry on the remainder. 
 But not until other means of raising money arc exhausted, includ- 
 ing the drawing of bills on the owner, hypothecating the ship, or 
 making other use of the owner's property or credit. In regard to 
 the exercise of this power, it can only be said that there must be 
 an actual and urgent necessity ; and as to the manner of its ex- 
 ercise, much must be left to the discretion of the master. If he 
 acts in good faith, and under a sufficient necessity, for the best 
 interests of all concerned, and with reasonable discretion, his acts 
 will be valid. But it is not enough that he acts horid fide if no 
 actual necessity existed.^ And although the beneficial effect of 
 the sale will extend to the ship, by enabling her to earn her freight, 
 and even if the ship profit most by it, yet if a part of the purpose 
 and effect be to carry on the cargo that is not sold, it will be jus- 
 tified as an act for the common benefit. 
 
 * Bat if the voyage is broken up, he cannot sell the cargo at the intermediate 
 port to pay for advances to him to repair the vessel for a new voyage, or to pay 
 seamen's wages. Watt v. Potter, 2 Mason, 7 7. A sale without necessity is 
 invalid, and conveys no rights to the purchaser. Freeman v. East India Co. 5 B. 
 & Aid. 617; Morris v. Robinson, 3 B. & C. 196; Cannan v. Meaburn, 1 Bing. 
 243; Van Omeron v. Dowick, 2 Camp. 42; Wilson v. Millar, 2 Stark. 1; 
 Ewbank v. Nutting, 7 C. B. 797; Campbell v. Thompson, 1 Stark. 490 ; Arthur 
 V. Schooner Cassias, 2 Story, 81 ; Pope v. Nickerson, 3 Story, 465, 604; Dodge 
 V. Union Ins. Co. 17 Mass. 4 71, 478. See also the important case of Post v. 
 Jones, 19 How. 150. In Peters v. Ballistier, 3 Pick. 495, a case where the same 
 person owned both ship and cargo, it was held that the master had no authority 
 to sell the cargo for the purpose of paying a debt of the owner, although the 
 creditor threatened, in case of refusal, to detain the vessel and cargo by legal 
 process. We have seen. Vol. I. p. 234, n. 2, when it is the duty of the master to 
 transship, and also, Vol. I. p. 234, n. 3, that he is not obliged to do so if the goods 
 are perishable in their nature. 
 
 « The Gratitudine, 3 Rob. Adm. 240, 263 ; Pope v. Nickerson, 3 Story, 465, 
 491 ; The Packet, 3 Mason, 255 ; The Joshua Barker, Abbott, Adm. 215 ; Myers 
 V. Baymore, 10 Barr, 114; Stillman v. Hurd, 10 Texas, 109; United Ins. Co. v. 
 Scott, 1 Johns. 106; Fontaine v. Col. Ins. Co. 9 Johns. 29 ; Searle v. Scovell, 4 
 Johns. Ch. 218, 224; Am. Ins. Co. v. Coster, 3 Paige, 323; Ross t'. Ship Active, 
 2 Wash. C. C. 226 ; Underwood v. Robertson, 4 Camp. 138. If the cargo belongs 
 to the owner of the ship, the master may sell it at once for the benefit of the ship. 
 Ross V. Ship Active, supra. See Babcock r. Terry, 97 Mass. 482.
 
 24 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION IV. 
 OF THE LIEN OF THE MASTER. 
 
 As the master may raise money for the ship, or expend his own, 
 or procure supplies, or make other necessary and beneficial con- 
 tracts, and is personally bound on those contracts, out of this 
 grows his lien on the ship or the freight, for whatever is due to 
 him. How far this lien extends, and indeed in what cases it ex- 
 ists, the authorities do not, perhaps, enable us to state very posi- 
 tively. In England it has been held that he can have no lien on 
 the ship,i and therefore none on the freight, because this is a mere 
 incident to the ship. 
 
 Some early cases moderated the severity of this rule somewhat, 
 and gave him this lien for his disbursements ; ^ but they are now 
 overruled.^ And it has been held in a recent case that the master 
 is not entitled to a lien on the freight in respect of expenses and 
 liabilities incurred by him abroad in supplying provisions and put- 
 ting up fittings, required by certain charter-parties concluded by 
 him on behalf of the owner.* In this country, the law seems now 
 to be, that the master has no lien on the ship for his wages,^ or for 
 
 1 Wilkins v. Carmichael, 1 Doug. 101 ; Hussey v. Christie, 9 East, 426; The 
 Johannes Christoph, 33 Eng. L. & Eq. 600. But see Watkinson v. Bernadiston, 
 2 P. Wms. 367, note, where the Master of the Rolls decreed that sums disbursed 
 by the captain on account of the ship in foreign ports, together with the wages of 
 himself and crew, should be paid out of the proceeds of the ship, as they consti- 
 tuted a lien upon it. 
 
 ' White I'. Baring, 4 Esp. 22. So in equity, Hussey v. Christie, 13 Ves. 594; 
 Ex parte Halkett, 3 Ves. & B. 135, 2 Rose, 194, 229, 19 Ves. 474; Pierson v. 
 Robinson, 3 Swanst. 139, n. 
 
 ' Smith V. Plummer, 1 B. & Aid. 575 ; Atkinson v. Cotesworth, 3 B. & C. 647, 
 5 Dowl. & R. 552 ; Gibson v. Ingo, 6 Hare, 112. 
 
 * Bristow V. Whitmore, 4 De Gex & J. 325, overruling s. c. Bristow v. Whit- 
 more, 1 H. R. V. Johns. Ch. 96. 
 
 * The Ship Grand Turk, 1 Paine, C. C. 73 ; Revens v. Lewis, 2 Paine, C. C. 
 202 ; Fisher v. Willing, 8 S. & R. 118 ; Gardner v. The New Jersey, 1 Pet. Adm. 
 223 ; Phillips v. The Thomas Scattergood, Gilpin, 1 ; Steamboat Orleans v. 
 Pha-bus, 11 Pet. 175; Willard v. Dorr, 3 Mason, 91; Dudley v. The Steamboat 
 Superior, U. S. D. C. Ohio, 3 Am. Law Register, 622; Hopkins v. Forsyth, 14 
 Penn. State, 34; Richardson v. Whiting, 18 Pick. 530; Case v. Woolley, 6 Dana, 
 17, 22. But if a person is merely called a master, but is not one in foct, he can 
 proceed against the ship in rem for his wages. L'Arina v. Brig Exchange, Bee, 
 Adm. 198.
 
 CH. XIV.] LIEN OF THE MASTER. 25 
 
 his disbursements.^ But for botli of these he has a lien on the 
 freight according to the best authorities.^ But he lias no lien for 
 a general account.^ If the cargo belongs to the owner of the ship, 
 it has been held that the master has a lien on it for his disburse- 
 ments.* 
 
 And if he has a lien on the freight, it would follow that he might 
 detain the goods even against a shipper or consignee who had paid 
 
 1 In Gardner v. The New Jersey, 1 Pet. Adm. 223, 226, it was held that a 
 master who paid claims which were liens on the vessel, was substituted in place 
 of the lien creditors, and acquired a lien on the vessel. See also Bulgin v. Sloop 
 Rainbow, Bee, Adm. 116. Mr. Justice Story, in the Ship Packet 3 Mason, 255, 
 263, suggested that the master might have a lien on the ship, where he used his 
 own money to repair her in preference to borrowing on bottomry. But that he 
 did not mean to express an opinion that generally a master has a lien on the ship 
 for disbursements is evident, for in Steamboat Orleans v. Phoebus, 11 Pet. 175, he 
 expressly states that this right does not exist. In a case before Mr. Justice 
 Curtis, the whole question was learnedly examined, and it was held that no lien 
 on the ship existed. The Larch, 2 Curtis, C. C. 427. See also Hopkins v. For- 
 syth, 14 Penn. State, 34. By an early statute in Connecticut, the master, in case 
 of the neglect of the part-owner to furnish the outfits, could supply them and look 
 to the vessel, but had no personal remedy against the owner. Brook v. Williams, 
 2 Root, 27. In Ex parte Clark, 1 Sprague, 69, the master of a vessel, who had 
 expended his money for the necessary disbursements of the vessel abroad, peti- 
 tioned to be allowed the amount out of the estate of the sole owner, who had 
 become a bankrupt ; and the petition was allowed. 
 
 " That he has a lien on the freight for his disbursements, see Lane v. Penni- 
 man, 4 Mass. 91; Lewis v. Hancock, 11 Mass. 72. In this case the court said: 
 " He may be understood, as against the owner himself, to have the same right in 
 the freight-money which a factor or consignee has in the goods of the principal or 
 consignor, for whom money has been advanced, or any liabilities have been 
 incurred, in consequence of the employment or consignment. The master of a 
 vessel in a foreign port, and at home after a voyage performed, has many liabil- 
 ities, from which he may have cause to protect himself, by insisting on his right to 
 collect the freight-money." See also IngersoU v. Van Bokkelin, 7 Cow. 670, 5 
 Wend. 815; The Ship Packet, 3 Mason, 255; Drinkwater v. Brig Spartan, 
 Ware, 149 ; Richardson v. Whiting, 18 Pick. 530. If by the shipping articles the 
 master is directly responsible to the seamen for their wages, it would seem that 
 he might retain the freight to indemnify himself. See Goodridge v. Lord, 10 
 Mass. 483. In regard to his lien on the freight for his wages, see Drinkwater v. 
 Brig Spartan, Ware, 149; Richardson v. Whiting, 18 Pick. 530, 532. In Inger- 
 soU V. Van Bokkelin, 7 Cow. 6 70, the Supreme Court held that he had a lien on 
 the freight for his wages, but this decision was reversed by the Court of Errors, 
 5 Wend. 315. 
 
 » Shaw V. Gookin, 7 N. H. 16. See also Hodgson v. Butts, 3 Cranch, 140. 
 
 * Newhall v. Dunlap, 14 Maine, 180.
 
 26 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the freight to the owner of the ship, if the consignee had been 
 duly notified by the master of his claim and lien, and ordered not 
 to pay the owner.^ And generally it is not only his right, but his 
 duty, to collect the freight, but this power may be taken away from 
 him by an assignment by the owner ; ^ but the court will not grant 
 an injunction to prevent him from collecting it, although the 
 freight has been assigned by the owners to a third person, if it 
 does not appear that the master is about to make an improper use 
 of the money .^ 
 
 SECTION V. 
 HOW FAR THE OWNER IS LIABLE FOR THE TORTS OF THE MASTER. 
 
 The owner is liable not only upon the contracts of the master 
 of the kind above designated, but also for his wrong-doings, and 
 the injuries resulting from them, to a certain extent.* We con- 
 sider that the principles of the law of agency, or of the relation of 
 master and servant, suffice to measure this liability and to deter- 
 mine where it exists. Thus, the vessel and owners are liable for 
 the delay of the master in presenting a proper manifest so that the 
 owner of goods can pass his property through the custom-house, 
 but they are not responsible for a tortious endeavor on the part of 
 the master to prevent the owner from obtaining his goods. ^ If a 
 vessel is chartered, and the master is the agent of the owners, it is 
 
 * See Vol. I. p. 306, n. 3. 
 
 * The Edmond, Lush. Adm. 57. 
 
 » Guion V. Trask, 1 De Gex, F. & J. 373. 
 
 * By the general rule of the maritime law, the owners of a vessel are liable for 
 all injuries caused by the misconduct, negligence, or unskilfulness of the master, 
 provided the act be done while acting within the scope of his authority as master. 
 Beawes, Lex Mercatoria (4th London ed.), 54 ; Stinson v. Wyman, Daveis, 172 ; 
 The Waldo, Daveis, 161 ; Dusar v. Murgatroyd, 1 Wash. C. C. 13, 17. 
 
 The owner of a vessel is liable for the tort of the master in shipping a minor 
 without the consent of his father, if the master knew this fact at the time ; the 
 knowledge of the servant being considered equivalent to knowledge by the prin- 
 cipal. See ante, p. 11, n. 1. 
 
 * The Zenobia, Abbott, Adm. 80, 93. So in The Aberfoyle, Abbott, Adm. 242, 
 1 Blatchf. C. C. 360, it was held that a vessel was liable in rem for the wrongful 
 act of the master in putting a passenger on short allowance, unless it was proved 
 that the master's act was malicious and wrongful.
 
 CH. XIV.] HOW FAR OWNER LIABLE FOR TORTS OF MASTER. 27 
 
 his duty to collect the freight-money for the benefit of the charter- 
 ers ; and if he neglect to do so his owners are liable, unless the 
 charterers directed some other person to collect it.^ So the own- 
 ers are liable for the negligent act of the master in overloading a 
 wharf, whereby goods were injured, although there had been a 
 constructive delivery of the goods.^ And if a master, by want of 
 skill or care, brings his ship while navigating her into collision 
 with another and inflicts injuries thereby, the owner is certainly 
 liable.^ But it has been held that the owners are not liable for a 
 wilful collision.* So if the master embezzles goods put on board, 
 the owner is liable.^ But he is not liable if the master embezzles 
 or injures goods which he took on board to fill his own privilege, 
 
 ' Welch V. McClintock, 10 Gray, 215. 
 
 ' Kennedy ?;. Dodge, U. S. D. C. New York, Shipman, J. 1867. 
 » The Thames, 5 Rob. Adni. 345 ; Stone v. Ketland, 1 Wash. C. C. 142; Mar- 
 tino V. Boggs, 1 La. Ann. 74. See also chapter on Collision, Vol. I. 
 
 * The Druid, 1 W. Rob. 391 ; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 
 480, 2 Const. 479. See The Ida, Lush. Adm. 6 ; The Seine, Swabey, Adm. 411, 
 A contrary decision was, however, given in Ralston v. The State Rights, Crabbe, 
 22, 44, on the authority of the distinction pointed out by Mr. Justice Washington 
 in the case of DIas v. Privateer Revenge, cited in a subsequent note. Jud^e 
 Hopkinson said : " In the case now before this court, I do not understand it to be 
 denied, that the owners of a vessel are answerable for the acts of their captain 
 done within the course and scope of his employment and business. Is this not 
 enough for this case ? Assuredly it was within the course and scope of the em- 
 ployment and authority of Captaia Allen to direct the State Rights to be steered 
 at his pleasure ; he had full power to do this, derived from his owners, and all on 
 board were to obey his orders, without interposing their judgment as to the conse- 
 quences to him or his owners. If by the execution of such an order a wronif is 
 done to another party, on what principle of the common or maritime law can the 
 owners of the offending vessel, the principals of such an agent, whom they have 
 armed with the power to do the wrong, throw the responsibility from themselves ? 
 It is widely different from the case of the commission of a crime by the captain, 
 which cannot be imputed to his owners, or be intended to come witiiin the em- 
 ployment or authority committed to him." In Duggins v. Watson, 15 Ark. 118, 
 a party who owned goods on board one vessel, brought an action against the own- 
 ers of a colliding vessel, and the court ruled that he was entitled to recover, 
 although the collision was wilfully caused by the master of the colliding boat. 
 This case was decided on the authority of Philadelphia R. v. Derby, 14 How. 468, 
 cited 2^ost, p. 30, n. 2 ; but it does not fall within the exception upon which that 
 case rested, and was wrongly decided, unless the principles contended for by Hop- 
 kinson, J., in the above case, be correct. 
 
 * Boucher v. Lawson, Cases temp. Hardw. 78, 193.
 
 28 ON THE LAW OF SHIPPING. [BOOK I. 
 
 and received all the freight, commissions, and profits on tliem.^ 
 Nor is he responsible for goods clandestinely taken onboard by the 
 master, when the owner is himself on board, managing the lading 
 of the vessel, or appointing an agent expressly therefor, and em- 
 ploying the master only in navigating the ship, and the shipper 
 either did know this, or has sufficient notice to put him on his 
 guard.^ The owners of a privateer are responsible for the tort^ of 
 the officers and crew committed in the exercise of their employ- 
 ment,^ but they are not liable for piratical acts committed by such 
 
 * King V. Lenox, 19 Johns. 235 ; Boucher v. Lawson, Cases temp. Hardw. Lon- 
 don ed. 85, 194, Dublin ed. 78, 183. But in Phile v. The Anna, 1 Dall. 197, an 
 owner of a vessel was held liable for the tort of the master in smuggling goods 
 which were part of the master's privilege, and did not belong to the general cargo 
 of the ship. 
 
 " Walter v. Brewer, 11 Mass. 99 ; Reynolds v. Toppan, 15 Mass. 370; Ward 
 V. Green, 6 Cow. 173. In Walter v. Brewer, the owner was with his vessel at 
 Monte Video, for the purpose of taking a cargo for himself, and not intending to 
 take freight for others. The master, without the knowledge of the owner, took on 
 board a few bales of Nutria skins, to carry to Boston. It was in evidence that 
 the bales would not more than fill the " privilege," which the masters of vessels, in 
 a case like that, were accustomed to have. The judge, at Nisi Prius, instructed 
 the jury, " That, although the owners of ships were generally liable for the con- 
 tracts of their masters abroad touching the ship on the voyage ; yet, as the owner, 
 in this instance, had himself gone in the ship, for the purpose of procuring a cargo, 
 and as the ship was not put up for freight, and as the defendant was not consulted 
 respecting this shipment, nor the persons who attended to his business in his ab- 
 sence, but they were taken on board without his knowledge, he was not accounta- 
 ble originally for the safe transportation and dehvery of the goods ; but that, if the 
 jury believed that the defendant knew, before his ship sailed from Monte Video, 
 that these bales had been taken on board by the master, he must be considered as 
 havinof adopted the act of the master, and as having consented thereto, and so 
 would be accountable." These instructions were held to be correct, with the ex- 
 ception that it was not suflicient to charge the owner that he knew that the goods 
 were taken on board, but that he must have " knowledge that the goods were re- 
 ceived on board upon freight." In Nichols v. DeWolf, 1 R. I. 277, it was held that 
 where an owner sent a vessel on his own account, the master as such had no au- 
 thority to sign bills of lading." But in INIurfree v. Redding, 1 Ilayw. 276, the 
 owner denied his liability for the breach of a contract of ailVeightment entered 
 into by the master, on the ground that the latter was put on board merely to navi- 
 gate the vessel. But the court were of opinion that as he was held out as master, 
 the contract being within the scope of his authority, the owner was liable. 
 
 ' The San Juan Baptista, 5 Rob.'Adm. 33; The Karasan, id. 291 ; Die Fire 
 Damer, id. 357; Nostra Signora de los Dolores, 1 Dods. 290; L'Tn vincible, 1 
 Wheat. 238 ; The Anna Maria, 2 Wheat. 327 ; The Amiable Nancy, 1 Paine,
 
 CH. XIV.] HOW FAR OWNER LIABLE FOR TORTS OF MASTER. 29 
 
 ofificers and crew.^ All of these cases, and very many more of 
 a like kind, resolve themselves into this rule ; that the owner is 
 responsible for the direct consequences of any wrong-doing of the 
 master, which is done by him as master, in the discharge of his 
 duty, and under the authority given him as master.^ And here, 
 as in most cases under the law of shipping, the established usage 
 of the port, or of the trade in which the vessel is employed, is of 
 great importance. The question how far the owners of a vessel 
 are liable for the wilful and malicious act of the master, is one of 
 
 C. C. Ill, 3 Wheat. 546 ; Talbot v. The Commanders of Three Brigs, 1 Dall. 95 ; 
 Del Col V. Arnold, 3 Dall. 333 ; Arnold v. Del Col, Bee, Adm. 5 ; Gibbs r. The 
 Two Friends, Bee, Adm. 41G. In The Amiable Nancy, supra, a doubt was ex- 
 pressed whether the liability extended to personal trespasses committed by the 
 master and crew against persons on board the prize. Some of the cases above 
 cited would seem, however, to extend the liability of the owners to a greater ex- 
 tent than more modern cases would justify. 
 
 ^ Dias V. The Privateer Revenge, 3 Wash. C. C. 2G2, 268. This case might 
 seem to countenance a distinction which has been sometimes taken between mere 
 torts and offences for which the master is criminally responsible. See Ralston v. 
 The State Rights, Crabbe, 22. 
 
 But the writers on maritime law do not appear to make any distinction in this 
 respect between acts which are criminally punishable, and such as are not, nor is 
 it apparent how they could do so, save in the case of offences against the law of 
 nations ; and Dr. LusMngton, In the case of The Druid, 1 W. Rob. 391, intimated 
 that he believed none to exist. In Manro v. Almeida, 10 Wheat. 473, it was 
 argued that, as the trespass complained of was alleged to have been piratically 
 done, the civil remedy merged in the crime. The court said : " But this we think, 
 clearly, cannot be maintained. Whatever may have been the barbarous doc- 
 trines of antiquity about converting goods piratically taken into droits of the 
 admiralty, the day has long gone by since it gave way to a more rational rule, 
 and the party dispossessed was sustained in his remedy to reclaim the property 
 as not devested by piratical capture." 
 
 ' Dias V. The Privateer Revenge, 3 Wash. C. C. 262, 208. The decision of 
 the learned judge In this case goes very thoroughly over the whole question, and 
 draws the distinction between a wilful act done while the servant is engaged In 
 the prosecution of his master's business, — as when the master of a vessel commits 
 epoliatlon on property rightfully seized as a prize, in which case the owners of the 
 vessel would be liable, — and an act wholly out of the scope of his employment, 
 as a piratical seizure. The distinction here pointed out was acted upon in the 
 case of Ralston v. The State Rights, Crabbe, 22, which case we have referred to 
 more at length, ante, p. 27, n. 4, but what we consider to be the true doctrine of 
 the common law is stated by Mr. Justice Cou-en, In Wright v. Wilcox, 19 Wend. 
 343, 345, to be that the law holds every wilful act to be a departure from the 
 master's business.
 
 30 ON THE LAW OF SHIPPING. [BOOK I. 
 
 great difficulty, especially when such act is done l)y the master 
 while employed in the usual course of his business. It is said in 
 one case that the lial)ility of the owners depends on the general 
 principles of the maritime law, and not on any special contract.^ 
 But their liability may undoubtedly be increased by a special con- 
 tract, and the distinction has been taken in some recent cases be- 
 tween the act of the master towards one to whom the owner owes 
 no more duty than one citizen owes to another, and his act when 
 this duty is increased by reason of a special contract or an obliga- 
 tion imposed upon him by virtue of his office as carrier. In such 
 a case it would seem that the owner is liable even for the wilful 
 tort of his servant, if it was committed while in his employ and in 
 the management of the conveyance under his control, although the 
 wrong was done in direct opposition to the express commands of 
 the owner.2 And if the owners are obliged to pay damages for the 
 wrong-doing of the master, they have their remedy over against 
 him.^ And the master is liable if he violates any of the material 
 
 ^ Dean v. Angus, Bee, 369, 375. 
 
 ' This was so held in Weed v. Panama Railroad Co. 5 Duer, 193, 17 N. Y. 
 362, where a conductor on a railroad stopped and detained the train in a swamp 
 during the night, and the company was held liable for the injuries sustained by 
 a passenger in consequence thereof. In a late case in the Supreme Court of 
 the United States, Philadelphia R. v. Derby, 14 How. 468, the defendant 
 in error was riding in a train, on the railroad of the plaintiffs, which came 
 into collision with another train belonging to the same company, whereby he 
 was injured. The accident was caused solely by the engineer of the colliding 
 train running his engine on a track over which he had received express orders 
 not to go. It was held that the company was liable. The court said : " We find 
 no case which asserts the doctrine that a master is not liable for the acts of a ser- 
 vant in his employment, when the particular act causing the injury was done in 
 disregard of the general orders or special command of the master. Such a quali- 
 fication of the maxim of respondeat superior, would, in a measure, nullify it." In 
 Keener. Lizardi, 5 La. 431, the owners of a vessel were held liable for the misbe- 
 havior of the master to passengers. See also St. Amand v. Lizardi, 4 La. 243 ; 
 Block V. Bannerman, 10 La. Ann. 1. 
 
 In Malpica v. McKown, 1 La. 248, it was held that the owner was liable for 
 money of a deceased passenger converted by the captain to his own use. And 
 in Arayo v. Currel, 1 La. 528, where the master, the ship having run aground, 
 told the passengers to go on shore, in order that the ship miglit be lightened, and 
 after the ship was got off he sailed away without them, it was held that the owner 
 was liable. See Sunday v. Gordon, Blatchf & H. Adm. 569. 
 
 ' Dean v. Angus, Bee, Adm. 369 ; Purviance v. Angus, 1 Dall. 180.
 
 CH. XIV.] HOW FAR OWNER LIABLE FOR TORTS OF MASTER. 31 
 
 orders and instructions under which he sailed.^ If the master of 
 a vessel wrongfully detains the clothing of a seaman, the owners 
 are not liable therefor, unless they have ratified the acts of the 
 master, or upon demand have refused to deliver it.^ 
 
 ' Brown v. Smith, 12 Cush. 366. In this case it was held that the master was 
 liable for the reasonable expense of bringing the vessel home from the port to 
 which he had wrongfully navigated her, and for reasonable damages for breaking 
 up the voyage, but not for the conjectural or possible profits of the voyage ; and 
 that the collection from him of a part of the proceeds of a wrongful sale of some 
 of the property on board was no bar to an action against him for breaking up the 
 voyage and disposing of the property, but went merely in reduction of damages. 
 
 ' The Hibernia, 1 Sprague, 78.
 
 32 ON THE LAW OF SHIPPING. [BOOK I. 
 
 CHAPTER XY. 
 
 OF THE SEAMEN. 
 
 SECTION I. 
 
 HOW SEAMEN ARE REGARDED BY THE COURTS. 
 
 The common-law courts in some degree, and admiralty courts 
 still more, regard seamen as peculiarly in need of, and entitled to, 
 the protection of the courts, because peculiarly exposed to the 
 wiles of sharpers and unable to take care of themselves. ^ The 
 
 ^ Mr. Justice Story, in Harden v. Gordon, 2 Mason, 541, 555, states the law 
 ■with great accuracy : " Every court should watch with jealousy any encroachment 
 upon the rights of seamen, because they are unprotected and need counsel ; 
 because they are thoughtless and require indulgence ; because they are credulous 
 and complying, and are easily overreached. But courts of maritime law have 
 been in the constant habit of extending towards them a peculiar protecting favor 
 and guardianship. They are emphatically the wards of the admiralty ; and, 
 although not technically incapable of entering into a valid contract, they are 
 treated in the same manner as courts of equity are accustomed to treat young 
 heirs, dealing with their expectancies, wards with their guardians, and cesluis que 
 trust with their trustees. The most rigid scrutiny is instituted into the terras of 
 every contract in which they engage. If there is any undue inequality in the 
 terms, any disproportion In the bargain, any sacrifice of rights on one side which 
 are not compensated by extraordinary benefits on the other, the judicial interpre- 
 tation of the transaction is, that the bargain is unjust and unreasonable, that 
 advantage has been taken of the situation of the weaker party, and that pro tanto 
 the bargain ought to be set aside as inequitable." In The Bark Rajah, 1 Sprague, 
 199, the owners of the vessel set up, in defence, to an action for wages, that the 
 libellant had transferred his wages to third parties by an order which they had 
 accepted. The court held on the evidence that the acceptance was subsequent to 
 a direction by the libellant not to pay anything to the payees. The owners had 
 also refused to take a bond of indemnity. It appeared that, on the arrival of the 
 ship, the libellant was induced to go to the store of the payees, and was by them 
 furnished with clothing to the value of S 28.37, watch and chain S 30.00, and $ 2 
 in cash, which, with a charge of fifty cents for boating, amounted to $ 60.87. In pay- 
 ment, the libellant gave them an order on the owners for the full amount of his 
 wages, amounting to $ 154.73. The watch and chain were returned within a few
 
 CH. XV.] HOW SEAMEN ARE REGARDED BY THE COURTS. 33 
 
 statutes of England and of this country contain many provisions 
 in their behalf, and in some respects we carry them further than 
 any other nation. Early in our legislation there was a prohibition 
 against the shipping' on board of our vessels of foreign seamen 
 not naturalized. 1 But this act was made to apply only to the 
 subjects and citizens of countries which prohibit the employment 
 in their vessels of our citizens ; ^ and as these are very few, this 
 circumstance and the necessities of commerce have caused this 
 statute to be very seldom regarded or enforced, and in 186-i it 
 was repealed.^ 
 
 The repealing act, however, provides that officers of vessels of 
 the United States shall in all cases be citizens of the United 
 States, By act of 1866,^ seamen are prohibited wearing sheath- 
 knives, and it is made the duty of the master or other officer in 
 command of the vessel, under a penalty, to inform every person 
 offering to ship of the provisions of the law, and to require his 
 compliance with it. 
 
 Tlie act of 1803, c. 10,^ provides that no master of a ves- 
 sel or any other person shall import or bring any negro, mu- 
 latto, or other person of color, not being a native, a citizen, 
 or registered seaman of the United States, or seamen natives 
 of countries beyond the Cape of Good Hope, into any port or 
 place of the United States situated in any State which by law 
 has prohibited the admission or importation of such person. This 
 act, it is held, does not apply to colored seamen employed in navi- 
 gating the vessel which brings them.*' In some of the southern 
 States of this country, laws were formerly in force prohibiting the 
 coming into the State of any free negro or colored person as sea- 
 man or passenger on any vessel, and providing for the imprison- 
 ment of such person during the stay of the vessel in the port. 
 
 days, but were refused. They were proved not to be worth more than S 20.50. 
 Held, that the libellant was entitled to rescind the contract as to the watch and 
 chain, and was entitled to the full amount of his wages, deducting the value of the 
 other articles, and money advanced by the payees of the order. 
 1 Act of March 3, 1831, c. 42, 2 U. S. Stats, at Large, 809. 
 
 * Ibid. § 10. 
 
 ' Act of 1864, c. 170, 13 U. S. Stats, at Large, 201. 
 
 * Ch. 286, 14 U. S. Stats, at Large, 304. 
 
 * 2 U. S. Stats, at Large, 205. 
 
 * The Brig Wilson v. The United States, 1 Brock. C. C. 423. 
 VOL. II. 3
 
 34 ON THE LAW OF SHIPPING. [BOOK I. 
 
 These laws have been held to be unconstitutional,^ but the seaman 
 so imprisoned has no right of action against the master on account 
 of such imprisonment, nor can the master deduct from his wages 
 the expenses of the imprisonment.^ 
 
 The most important points in which the statutes of the United 
 States provide for the protection of our sailors are in relation to, 
 1st. The shipping articles ; 2d. Wages ; 3d. Provisions and sub- 
 sistence ; 4th. Seaworthiness of the ship; 5th. The care of sea- 
 men in sickness ; 6th. The return of seamen to this country ; 
 7th. Disobedience of seamen ; 8th. Provisions in respect to de- 
 sertion and discharge, either at the beginning or during the course 
 of the voyage. The principal statutes on these subjects we shall 
 give in our Appendix. Here we shall state generally the purport 
 and effect of these provisions, and of the adjudications respecting 
 them. 
 
 SECTION II. 
 OF THE SHIPPING ARTICLES. 
 
 Every master of a vessel bound from a port in the United States 
 to any foreign port,^ or of any ship or vessel of the burden of fifty 
 tons or upwards, bound from a port in one State to a port in any 
 other than an adjoining State, is required to have shipping arti- 
 cles, under a penalty of twenty dollars for every person who does 
 not sign,* which must be signed by every seaman on board, and 
 these must declare " the voyage or voyages, term or terms of time, 
 
 * Opinion of Johnson, J., in Elkison v. Deliesseline, U. S. D. C. South Carolina, 
 Appendix, p. 27, to Report No. 80, House of Representatives, 27t.h Congress, 3d 
 session ; The Cynosure, 1 Sprague, 88. A contrary ruling was made by Gilchrist, 
 J., in the case of Roberts v. Yates, U. S. C. C. South Carolina, 16 Law Rep. 49. 
 An appeal was taken to the Supreme Court of the United States, but was not 
 prosecuted. 16 Law Rep. 178. 
 
 ^ The Cynosure, supra. 
 
 * A seaman shipping in a foreign port is not required by statute to sign articles. 
 Gladding v. Constant, 1 Sprague, 73. A whaling voyage is not a foreign voyage 
 within this act. The Atlantic, Abbott, Adin. 474 ; Montgomery v. Tyson, U. S. 
 D. C. Mass. Lowell, J. See also Taber v. United States, 1 Story, C. C. 1. 
 
 * One suit should be brought for each penalty, and one count is sufficient. 
 Wolverton v. Lacey, U. S. D. C. Ohio, 18 Law Rep. 672.
 
 CH. XV.] SHIPPING ARTICLES. 35 ' 
 
 for which such seaman or mariner shall be shipped." ^ The courts 
 interfere to protect a seaman against loose and indefinite language, 
 or unfair or new and unusual stipulations;^ and wherever there 
 is a doubt as to their meaning or obligation, the seaman has the 
 benefit of the doubt.^ And a new clause in the shipping articles, 
 
 * Act of July 20, 1790, c. 29, 1 U. S. Stats, at Large, 131. A general coasting 
 and trading voyage, in which the vessel is trading at diil'erent ports, is within this 
 act. The Crusader, Ware, 437. And it extends also to the lakes, and public 
 navigable waters connecting the same. Wolverton v. Lacey, U. S. D. C. Ohio, 18 
 Law Rep. 672. The sixth section of the above act provides that the master shall 
 produce the contract and log-book when required, otherwise parol evidence of 
 their contents may be given. The first section of the Act of 1840, 5 U. S. Stats, 
 at Large, 394, has been considered to imply that the owner must deposit the 
 original articles with the collector of the port where the contract is made, and it 
 has been suggested that this so far modifies the former act, that the master or 
 owner, if not relieved from producing them at the call of the seaman, because, be- 
 ing in the custom-house, they are as much at the command of the seaman as of the 
 owner, yet at least the seaman should give distinct and reasonable notice that 
 he desires them. The Brig Osceola, Olcott, Adm. 450, 459. This case also de- 
 cides that, in the absence of the shipping articles, the statement of the mariner in 
 the libel is only evidence of what the master is obliged to put in the articles, 
 namely, " a declaration of the voyage or voyages, term or terms of time, for which 
 the seaman or mariner shall be shipped." And also, that if the owners prove a 
 reasonable excuse for not producing the articles, they may contradict by parol 
 the statement of their contents by the mariner. See Piehl v. Balchen, Olcott, 
 Adm. 24. The shipping articles are admissible as evidence of the terms of hire 
 in an action brought by the master or his administrator against the owners, as 
 well as in suits between the seamen and owners. Willard i'. Dorr, 3 Mason, 161. 
 
 ^ The leading cases on this point are The Juliana, 2 Dods. 504 ; Harden v. Gor- 
 don, 2 Mason, 541; Brown v. Lull, 2 Sumner, 443; Matern v. Gibbs, 1 Sprague, 
 158. In The Sch. Highlander, 1 Sprague, 510, Spra^riie, J., said : "Whenever 
 an unusual clause is introduced into the shipping articles, impairing the rights of 
 seamen, or imposing any additional duties or obligations on them, two conditions 
 are required : 1st. That the seaman had the agreement so explained to him that 
 he fully understood the meaning ; and 2d. That a reasonable compensation was 
 given him for the renunciation of the right, or for the new obligation assumed." 
 See also Heard v. Rogers, 1 Sprague, 556 ; Mayshew v. Terry, 1 Sprague, 
 584. 
 
 3 See the Minerva, 1 Hagg. Adm. 347, 355 ; The Hoghton, 3 Hagg. Adm. 100, 
 112 ; Jansen v. The Heinrich, Crabbe, 226 ; AVope v. Hemenway, 1 Sprague, 300. 
 In The Lanarkshire, 2 Spinks, Adm. 192, Dr. LusJiington said : " In case of doubt, 
 as the owners are much more competent to take care that the articles are clearly 
 expressed than the mariners, I should be disposed to lean against a construction, 
 the result of which would be to convict the seamen of desertion."
 
 36 ON THE LAW OF SHIPPING. [BOOK I. 
 
 which is relied on to repel a claim for wages, should be specially 
 pleaded.^ An agreement made under duress is not binding.^ If 
 a voyage from one place to another is stated, and the words " and 
 elsewhere " are added, these mean nothing, or only such further 
 procedure by the vessel as fairly belongs to the voyage described ; 
 and this the law would permit without them.^ But a definite 
 
 ' Heard v. Rogers, 1 Sprague, 556. 
 
 ^ Mayshew v. Terry, 1 Sprague, 584, and if the articles are signed under duress 
 and protest, they are invalid. Stratton v. Babbage, U. S. D. C. Mass. 18 Law 
 Rep. 94. 
 
 ^ Brown v. Jones, 2 Gallis. 477. In an early case before Mr. Justice Win- 
 chester, Anonymous, 1 Hall Am. Law Journal, 209, the shipping articles were for 
 a voj'age from Baltimore to Curacoa, and elsewhere. It was held that this did not 
 authorize a voyage from Baltimore to St. Domingo, and that the words " and 
 elsewhere " must be construed either as void for uncertainty, since they did not 
 contain any proper description of the terminus a quo and ad quern, as required by 
 the act of Congress, or as subordinate to the principal voyage stated, and author- 
 izing the ship in the progress of the voyage to pursue such course as might be ne- 
 cessary to accomplish the principal voyage, and this would be no more than was 
 implied by the law itself. And in Ely v. Peck, 7 Conn. 239, a description of a 
 voyage from New London to Oporto and elsewhere, was held to mean a voyage 
 from New London to Oporto ; and the words " and elsewhere " were rejected for 
 uncertainty. See also Gifford v. Kollock, U. S. D. C. Mass. 19 Law Rep. 21 ; 
 The Countess of Ilarcourt, 1 Hagg. Adm. 248 ; The Eliza, id. 182, 185 ; The 
 Minerva, id. 347, 354 ; The George Home, id. 370, 374. In this last case it was 
 decided that under an engagement to go " from London to Batavia in the East 
 India seas, or elsewhere, and until the final arrival at any port or ports in Europe," 
 the seamen were not bound, upon the arrival of the vessel at Cowes for orders, 
 according to previous agreement between the owners and the master, to proceed 
 on a further voyage to Rotterdam. See also The "Westmorland, 1 W. Rob. 216, 
 225 ; Roberts v. Knights, 7 Allen, 449; Piehl r. Balchen, Olcott, Adm. 24. In 
 Douglass V. Eyre, Gilpin, 147, it was held that the description of a voyage from 
 Philadelphia to Gibraltar, other ports in Europe or South America, and back to 
 Philadelphia, authorized a voyage from Gibraltar to South America, direct. 
 Judge Ilopkinson was also of the opinion, in the case of Magee v. The Moss, 
 Gilpin, 219, that a voyage from Philadelphia to Buenos Ayres, thence to Havana, 
 thence to Marseilles, thence to a port in South America, and thence back to Phil- 
 adelphia, came within the description of a voyage '' from Philadelphia to South 
 America, or any other port or ports, backwards and forwards, when and where 
 required, and back to Philadelphia." This proceeds upon the ground that, al- 
 thougli tlie description be too broad to satisfy the act of Congress, yet If the master 
 does under it only what the court thinks reasonable, the seaman cannot leave the 
 ship. This construction is opposed by Judge Ware, in the case of The Cru- 
 sader, Ware, 437. 
 
 And It Is now provided, by the Act of July 20, 1840, ch. 48, § 10, 5 U. S. Stats.
 
 CH. XV.] SHIPPING ARTICLES. 37 
 
 usage may give a precise meaning to these words. ^ And the ship- 
 ping articles ought to declare explicitly the ports of the beginning 
 
 at Large, 395, that all shipments of seamen contrary to the provisions of acts of 
 Congress sliall be void. Accordingly it has bejn held that a description of 
 a voyage " from the port of Boston to Valparaiso, and otlier ports in the 
 Pacific Ocean, at and from thence home, direct, or via ports in the East In- 
 dies or Europe," was not a compliance with the Act of 1790. Wope v. Ilemen- 
 way, 1 Sprague, 300, affirmed, Snow v. AVope, 2 Curtis, C. C. 301. Mr. Justice 
 Curtis said : " It is manifest that no definite and specific voyage, nor even any 
 limited number of voyages, is here described ; but liberty exists to carry on any 
 number of voyages, during such time as the vessel may last, at the discretion of 
 the master, provided that the first port to which the vessel goes is Valparaiso, and 
 her ultimate port of destination is Boston. These are the only fixed termini, and 
 between them there are no limits of time, and scarcely any of space. If this is a 
 sufficient description to satisfy the requirement of the act, it is an idle require- 
 ment, and affiDrds no protection to the seaman." As to the meaning of the word 
 "cruise" in the shipping articles, see The Brutus, 2 Gallis. 626. A trading 
 voyage does not include a freighting voyage. Brown v. Jones, 2 Gallis. 477. 
 Nor does a whaling voyage include a trading voyage to dispose of the cargo after 
 it is obtained. Gifford v. KoUock, 19 Law Rep. 21. In the United States v. 
 Staly, 1 Woodb. & M. 338, a voyage from the home port to Apalachicola, or else- 
 where, for a market, was held to be sufficiently described in the shipping articles 
 to be binding. In The Gem, U. S. D. C. Mass., Lowell, J., the voyage was de- 
 scribed as from Salem, Massachusetts, to Goree and a market, and back to a final 
 port of discharge in the United States. The vessel went to Goree and several 
 other ports on the west coast of Africa, disposed of her outward cargo, took 
 passengers to one of the Cape de Verd Islands, and was about to proceed to a 
 third to get a cargo of salt with which to return to the coast of Africa and there 
 by trade or barter obtain a homeward cargo, when the libellant left. Tiie case 
 was decided against the vessel, on the ground that the contract was broken by 
 the deviation. Doubts were also expressed as to the sufficiency of the descrip- 
 tion in the articles. Speaking of the case of United States v. Staly, supra, the 
 judge said : " This ruling was probably made without the benefit of much discus- 
 sion, and the brief statement of reasons is certainly not satisfactory." In Burke 
 V. Buttman, U. S. D. C. Mass., Lowell, J., the voyage was described to be from 
 Boston to Goree, Africa, at and from thence to such port or ports as the master 
 may direct. It was held that the master and owners could not take advantage of 
 the defects in these articles, and discharge the seamen wherever they pleased, and 
 that the seamen had the right to come home in the vessel in which they sailed, 
 and that the master had no right to transfer them to any other vessel or to dis- 
 charge them in a foreign country. In Stratton v. Babbage, U. S. D. C. Mass. 18 
 
 ^ Thus the same objection does not apply to the use of the word " elsewhere '' 
 in a whaling, as in a trading or freighting voyage. But even in such a case 
 there must be a terminus to the voyage specified. Giffijrd v. KoUock, 19 Law 
 Rep. 21. See also Brown v. Jones, 2 Gallis. 477.
 
 88 ON THE LAW OF SHIPPING. [BOOK 1. 
 
 and of the termination of the voyage.^ If a number of ports are 
 named, they must be visited in their geographical, or rather com- 
 mercial order, or as they stand in the articles, without returning 
 to any which have been visited.^ But if the shipping articles con- 
 tain expressions not obviously oppressive, indicating distinctly that 
 the master is to have a discretion in these matters, the courts will 
 
 Law Rep. 94, the question arose as to the meaning of "a port of discharge in the 
 United States." It was held that a port in the slave States, where colored sea- 
 men are obliged to remain in jail, or on board the vessel while she remains in 
 port, is not a port of discharge for them, and that in such a case they are entitled 
 to wages at the original rate until they are brought to another port. But if they 
 desire to be left at such a port, it has been held that the master has no right to 
 take them away. The Ship William Jarvis, 1 Sprague, 485. In The Varuna, 
 Vice Adm. Ct., Lower Canada, 18 Law Rep. 437, the voyage was "from the 
 port of Liverpool to Constantinople, thence (if required) to any ports or places in 
 the Mediterranean or Black seas, or wherever freight may offer, with liberty to call 
 at a port for orders, and until her return to a final port of discharge in the 
 United Kingdom, or for a term not to exceed twelve months." The ship went 
 to Constantinople, and then returned to Malta, and thence sailed direct to Que- 
 bec in search of freight. The court held that the voyage to Quebec was not jus- 
 tified by the articles, because the words " wherever freight may offer " should be 
 construed with reference to the previous description of the voyage, and must be 
 considered as meaning any ports or places in the two seas mentioned in the arti- 
 cles, or some place in their immediate neighborhood, or between them and the 
 United Kingdom. And in Peterson v. Gibson, Superior Ct., Suffolk Co. Mass. 
 20 Law Rep. 380, the description " a voyage from Liverpool to Havana, thence 
 (if required) to any ports or places in the West Indies, or wherever freight may 
 offer, and back to a final port of discharge in the United Kingdom, or for a term 
 not exceeding twelve months," was held not to cover a voyage from the West In- 
 dies to Boston and back during the period. The following has been held to be a 
 sufficient description : " From Boston to one or more ports south, thence to one 
 or more ports In Europe, and back to a port of discharge In the United States." 
 Thompson v. Ship Oakland, U. S. D. C. Mass., 4 Law Rep. 349. Where the 
 voyage was described in the shipping articles to be to a " final port of dischaj-ge," 
 it was held that the voyage was not ended until the cargo was wholly unladen, 
 and that the owner might order the vessel from port to port till that was done. 
 United States v. Barker, 5 Mason, 404. But if the vessel Is at a port In the coun- 
 try specified for the port of final discharge, after performing part of the voy- 
 age, and she has no cargo to be discharged, but Is seeking business, she is con- 
 eidered at her port of final discharge. The Ship Wm. Jarvis, 1 Sprague, 
 485. 
 
 * Anonymous, 1 Hall Am. Law Journal, 209 ; The Crusader, Ware, 437 ; 
 Magee v. The Moss, Gilpin, 219, 226; Gifford v. Kollock, 19 Law Rep. 21. 
 
 * Douglass V, Eyre, Gilpin, 147 ; Brown v. Jones, 2 Gallis. 477, 480.
 
 CH. XV.] SHIPPING ARTICLES. 39 
 
 not interfere.^ If the articles describe certain ports, and are also 
 limited in time, both restrictions are operative, and the seamen are 
 not bound for the time, unless the vessel goes to the ports in the 
 order described, within the time specified.^ 
 
 So as to other stipulations, they will be sustained or rejected, as 
 they seem to be fair or otherwise.^ Any stipulation contravening 
 
 ^ Wood V. The Nimrod, Gilpin, 83. But see The Brookline, 1 Sprague, 104. 
 
 * The Ship Wm. Jarvis, 1 Sprague, 485. See The Lanarkshire, 2 Spinks, 
 Adm. 189. 
 
 * The Minerva, 1 Hagg. Adm. 34 7, 355; Harden i\ Gordon, 2 Mason, 541, 
 555; Brown v. Lull, 2 Sumner, 443 ; The Sarah Jane, 1 Blatohf. & H. Adm. 401, 
 406 ; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229 ; The Quintero, U. S. 
 D. C. Mass., Lowell, J., January, 1866. In The Prince Frederick, 2 Hagg. Adm. 
 394, the articles contained a clause that if contraband goods should be found in 
 the forecastle, the seamen living therein should" forfeit their wages and £ 10 
 besides. Held, that the penalty of £ 10 could not be enforced at all in a court of 
 admiralty, and that only those seamen forfeited their wages who were proved to 
 be directly implicated in the offence. In Harden v. Gordon, 2 Mason, 541, 555, 
 the following stipulation was set aside as grossly inequitable ; " We further agree 
 and bind ourselves to pay for all medicines and medical aid, further than the 
 medicine chest affords." See also Freeman v. Baker, 1 Blatchf & H. Adm. 384. 
 So a stipulation that the seamen will sue for wages in courts of common law only, 
 is void, unless it be proved that the matter was clearly explained to them before 
 they entered into the agreement ; and their rights will be in no way prejudiced 
 by such a change. The Sarah Jane, 1 Blatchf. & H. Adm. 401. It was also held, 
 in this case, that under a stipulation that all differences between the master or 
 owners and crew, shall be referred to arbitration, where wages due were de- 
 manded, but payment refused, there was no difference within the meaning of the 
 stipulation. In Brown v. Lull, supra, Mr. Justice Stori/ said : " Courts of admi- 
 ralty are not, by their constitution and jurisdiction, confined to the mere dry and 
 positive rules of the common law. But they act upon the enlarged and liberal 
 jurisprudence of courts of equity ; and, in short, so far as their powers extend, 
 they act as courts of equity. AVhenever, therefore, any stipulation is found in the 
 shipping articles which derogates from the general rights and privileges of sea- 
 men, courts of admiralty hold it void, as founded on imposition or an undue 
 advantage taken of their necessities and ignorance and improvidence, unless two 
 things concur ; first, that the nature and operation of the clause is fully and fairly 
 explained to the seamen ; and, secondly, that an additional compensation is allowed, 
 entirely adequate to the new restrictions and risks imposed upon them thereby." 
 In Neave v. Pratt, 5 B. & P. 408, the articles contained a clause that the seamen 
 might leave the ship at the end of three months, if the ship was in port or in per- 
 fect safety, of which the captain was to be the sole judge. Held, that even if this 
 proviso were not void, yet the captain could not refuse without reason, of which 
 the jury were to judge. And in The Atlantic, Abbott, Adm. 451, a stipula- 
 tion in the articles for a whaling voyage, that if either of the officers or crew
 
 40 ON THE LAW OF SHIPPING. [BOOK I. 
 
 tlie language or the policy of a statute, is of course void.^ Xot 
 iinfrequently clauses are introduced lessening the rights of the 
 seamen to their wages, or the like ; and though common law 
 courts allow some force to these,^ admiralty courts never do ; ^ nor 
 
 should be prevented by sickness or any other cause from performing their 
 duty during the -n-hole of the voyage, he should receive of his lay in pro- 
 portion as the time served or duty performed by him should be to the whole 
 time of the voyage, was held valid. In Hazard v. Rowland, 2 Sprague, 68, the 
 shipping articles contained the following clause: "No distilled spirituous liquors 
 will be put on board this vessel by the owner, except for strictly medicinal use ; 
 and by their signatures the other parties to this contract pledge themselves not to 
 take any of these articles with them as their private stores, or for trafSc, either from 
 this port or any other port or place where they may be during the voyage. And in 
 case of a violation of this pledge by the master, or any officer or seaman, his entire 
 share of the voyage shall be thereupon forfeited to the use of the owners." Judge 
 Sprague said : " The articles prescribe a forfeiture of the wages for the whole 
 voyage. But I shall treat this as forfeitures are generally ti-eated, — they are to 
 be cut down to a just amount under all the circumstances. I cannot suppose, 
 indeed, that it was really intended that a total forfeiture should be made as pre- 
 scribed. Some voyages are four or five years in length ; then if any seaman 
 should, after four years of faithful service, bring on board, when liberty was given 
 on shore, a single bottle of liquor, he would, by the terms of this provision, forfeit 
 Lis whole voyage. It cannot be supposed that such an injustice was intended by 
 the owners. I have, therefore, no hesitation in saying that the court are not called 
 on rigidly to inflict the whole of this forfeiture." In this case the master had 
 liquors on board, and drank frequently. There was no evidence that any partic- 
 ular damage was done, but the court held that it was not a case for mere nominal 
 damages, and assessed three hundred and seventy-five dollars as the damages. 
 
 ' Harden v. Gordon, 2 Mason, 541. 
 
 - Cutter V. Powell, 6 T. R. 320; Appleby v. Dods, 8 East, 300; Jesse v. Roy, 
 4 Tyrw. 62G, 1 Cromp. M. & R. 316. In this case Lord Lyndkurst, C. B., said: 
 " I know no principle by which a contract entered into by mariners is to be con- 
 strued ditferently from those made among other persons." See also Rice v. 
 Haylett, 3 Car. & P. 534; Webb v. Duckingfield, 13 Johns. 390; Dunn r. Com- 
 stock, 2 E. D. Smith, 142, and cases in ne.xt note. 
 
 * In The Juliana, 2 Dods. 504, it was held, that in a divided voyage, where, by 
 the general law, the seamen are entitled to their wages up to the last port of de- 
 livery, a stipulation in the articles that they should not be entitled to any part of 
 their wages in case of the loss of the vessel before her arrival at the final port of 
 discharge, was void. See also Buck v. Rawlinson, 1 Bro. P. C. 137; Edwards v. 
 Child, 2 Vern. 727. So in Johnson v. Sims, 1 Pet. Adm. 215, where the agree- 
 ment was as follows : " No officer or seaman belonging to the said ship .shall 
 demand or be entitled to his wages, or any part thereof, until the arrival of the 
 said ship at the port of discharge in Philadelphia." This was held to mean merely 
 that the wages for the outward voyage should be paid only in Philadelphia ; and
 
 CH. XV.] SHIPPING ARTICLES. 41 
 
 do tliej give any effect to the receipt of a sailor for his wages, 
 ■whetlier sealed or parol, unless there was an actual payment of 
 them.^ So if a seaman is induced to assent to his discharge upon 
 payment of a nominal sum, from just apprehension of future ill 
 treatment arising from the misconduct of the master, such assent 
 is given under a species of duress, and is no bar to a recovery of 
 the amount actually due to him at the time of his discharge.^ 
 And a custom of a particular port, that seamen's advance wages, 
 due under shipping articles, shall be paid to the shipping agent, 
 to be paid by him to the boarding-house keeper bringing the sea- 
 men, for their benefit, is unreasonable, and does not bind the sea- 
 men, although known to them at the time of signing the articles.^ 
 
 that if the vessel was lost or captured, the wages due should be paid after the ordi- 
 nary time for her arrival had elapsed. See also Millot r. Lovett, Sup. Jud. 
 Ct., ]\Iass. 2 Dane, Abr. 461; Swift v. Clark, 15 Mass. 173. In the case 
 of Goodridge r. Peabody, before the same court, 2 Dane, Abr. 462, the 
 special agreement was fully explained to the seaman before he signed, and the 
 case was, therefore, decided differently from those above cited. In Brown v. 
 Lull, 2 Sumner, 443, the following stipulation was held to be void : '' In case of 
 the said vessel being taken or lost in the course of the said voyage, no wages shall 
 be demanded or received by the persons subscribing the same, except the advance 
 ■wages received by them respectively at the time of entry on board ; and that, if 
 the said vessel should be restrained for more than thirty days at any one time, the 
 wages should cease during such restraint and no longer." So in The C\'press, 1 
 Blatchf. & H. Adm. 83, it was held that a stipulation was void which provided 
 that the seamen should not, in any case, demand their wages until the expiration 
 of twelve months, if the voyage was completed, or the men discharged before that 
 time. But a stipulation that the seamen shall not sue for wages, until the vessel 
 is unladen, is binding, if fairly made. Granon v. Hartshorne, 1 Blatchf & H. 
 Adm. 454. So a clause, usual in the Baltic trade, that the officers and seamen 
 agree to accept half wages in case of the vessel wintering abroad, is valid. 
 The Iloghton, 3 Hagg. Adm. 100. 
 
 1 Thorne c. White, 1 Pet. Adm. 178; Jackson v. White, id. 170 ; Whiteman v. 
 The Neptune, id, 180, 182; The David Pratt, Ware, 495; The Harriet, 1 
 Sprague, 33; Harden v. Gordon, 2 Mason, 541 ; Thomas v. Lane, 2 Siunner, 1, 
 11 ; Piehl v. Balchen, Olcott, Adm. 24. And in Whitney v. Eager, Crabbe, 422, 
 a release of all complaints against the officers of the vessel, which the seaman had 
 to sign in order to get his wages, was held to be void. See also The Commerce, 
 1 Sprague, 34 ; The Mary Paulina. 1 Sprague, 45 ; Payne v. Allen, 1 Sprague, 
 304. But the evidence to control a receipt in full for wages must be clear and 
 explicit. Leak v. Isaacson, Abbott, Adm. 41, 
 
 * Bates V. Seabury, 1 Sprague, 433. 
 
 ' Metcalf r. Weld, 14 Gray, 210.
 
 42 ON THE LAW OF SHIPPING. [BOOK I. 
 
 If the shipping articles be sealed by the mariners but not by the 
 master, assumpsit lies on them by the seamen, at common law.^ 
 In admiralty, seals have no effect.^ The stipulation in the ship- 
 ping articles is conclusive as to wages ; ^ and no more can be re- 
 
 ^ This is in accordance with the head-note in Sutherland v. Lishman, 3 Esp. 
 42, but it does not appear certainly what point the case decided. The action was 
 assumpsit for wages. In defence it was shown that the ship's articles were under 
 seal, that they were signed by the plaintiff but not by the defendant, and it was 
 contended that, the articles being under seal, the action ought to have been cove- 
 nant. The report then adds : " Lord Eldon ruled, that the binding by deed 
 ought to be mutual to make it necessary for the plaintiff to sue in covenant ; that 
 the defendant never having sealed, the articles could not be sued in that form of 
 action, and that the present action was not rightly brought. The defendant had 
 a verdict." To make this language consistent, either the word " not," in the 
 phrase " not rightly brought," must be struck out, and the word " plaintiff" be 
 substituted for " defendant " in the last sentence, or we must suppose that, owing 
 to some facts not mentioned, assumpsit would not lie. 
 
 " The David Pratt, Ware, 495. 
 
 * White V. Wilson, 2 B. & P. 116; Elsworth v. Woolraore, 5 Esp. 84 ; The 
 Isabella, 2 Rob. Adm. 241; Veacock v. M'Call, Gilpin, 329. But see Parker v. 
 The Ship Calliope, 2 Pet. Adm. 272; Page v. Sheffield, 2 Curtis, C. C. 377. In 
 Carter v. Hall, 2 Stark. 361, it was held that a pursei-'s steward, who receives a 
 sjiecific salary from the crown, cannot recover wages from the purser on an 
 implied contract for his services on board the ship. See also Dafter v. Cresswell, 
 7 Dowl. & R. 659. But in Clutterbuck v. Coffin, 4 Scott, N. R. 509, it was held 
 that the plaintiff having, at the request of the defendant, a captain in the navy^ 
 entered on board his ship as cook, on condition that he should be paid wages over 
 and above the government pay, he might recover from the defendant. If a cook 
 performs services out of the line of his employment, as where he acts as caulker, 
 he may recover additional compensation. The Exchange, 1 Blatchf. & H. Adm. 
 366. And the same rule applies where the captain paints his ship himself. 
 String V. Hill, Crabbe, 454. But the master is entitled to call on the cook to do 
 seaman's work, when the vessel is in port. Allen v. Hallett, Abbott, Adm. 573. 
 In the case of The Brookline, 1 Sprague, 104, the crew were shipped on a voyage 
 " to a port or ports easterly of the Cape of Good Hope, or any other port or ports 
 to which the master should see fit to go in order to procure a cargo." The 
 owners intended to go to Ichaboe for a cargo of guano. This was concealed from 
 the seamen. The seamen refused to work at loading the guano, and the master 
 finally agreed to pay them a certain sum over and above their wages, for every 
 ton they should load. The court held that the seamen were not bound to work 
 for their ordinary wages, because fraud had been practised upon them to get 
 them there, and that they might recover compensation in addition to the sum 
 agreed upon at the island. If mariners are shipped during a war, but while on 
 the voyage peace ensues, their wages are not diminished. M'CuUoch v. The 
 Lethe, Bee, Adm. 423; Shaw v. The Lethe, id. 424. But if the ship do not
 
 CH. XV.] SHIPPING ARTICLES. ■ 43 
 
 covered on any special promise to pay for severe or extra labor or 
 exposure in the course of duty.^ If, however, a seaman be pro- 
 moted, he takes the wages of his new office.^ But it seems that 
 if he be afterwards degraded for incapacity, he cannot recover his 
 
 enter upon the high seas, the scene of danger, until after peace is declared, the 
 wages will be decreased, after the time of such declaration. Brice v. Tlie Nancy, 
 Bee, Adm. 429. 
 
 ^ Harris v. Watson, Peake, Cas. 72. So, where some of the crew deserted, and 
 the captain could not obtain any men to fill their places, a promise by him to 
 divide the wages of those* who had deserted among the crew remaining, was held 
 to be void. Stilk v. Myrick, 2 Camp. 317 ; Harris v. Carter, 3 Ellis & B. 559, 25 
 Eng. L. & Eq. 220. And in a case where the master had distributed the wages 
 of the deserters among the rest of the crew, it was held that, in an action by the 
 crew for wages, the owners could retain a sum equal to the amount so paid over. 
 Dr. LusJttngfon, however, said that he did not wish it to be inferred that seamen, 
 when the outward voyage is completed, are bound to make the return voyage, 
 when the number of the crew is so small that risk of life may be incurred.. The 
 Aramiuta, 1 Spinks, Adm. 224, 29 Eng. L. & Eq. 582. And if the vessel be- 
 comes so short-handed at an intermediate port as to be unseaworthy, a note 
 voluntarily given by the captain to a seaman to secure an extra remuneration, in 
 consideration of the seaman's assisting to carry on the ship, is valid. Hartley v. 
 Ponsonby, 7 Ellis & B. 872. In Thompson v. Havelock, 1 Camp. 527, the plain- 
 tiff, who was captain of a vessel, let her to the government for a fixed price, and 
 also stipulated that he should be paid, in consideration of the extra services he 
 would be obliged to perform, one shilling per ton per month. The government 
 paid this over to the owner, and in an action against him by the captain it was 
 held that the latter could not recover it. A promise of higher wages made to 
 seamen threatening to desert, is void. Bartlett v. Wyman, 14 Johns. 260. See 
 also Johnson v. Dalton, 1 Cow. 543. In Frazer v. Hatton, 2 C. B. x. s. 512, 40 
 Eng. L. & Eq. 318, the plaintiff signed shipping articles, by which he agreed to 
 serve as steward on a certain voyage at the rate of £3 per month. The articles 
 also provided that " the crew, if required, might be transferred to any other ship 
 in the same employ." It was held, under this provision, that any member of the 
 crew might be transferred without the rest* and that articles signed by the captain 
 stipulating for higher wages for the plaintiff, he having been transferred, were 
 null and void. In Mesner v. The Suffolk Bank, 1 Law Rep. 249, it was held, 
 where a steamboat came into collision with a sailing vessel, and was in imminent 
 danger of sinking, that a promise of a reward by a passenger to the officers or 
 crew, to secure their exertions in saving his property, was not binding. 
 
 But if the ship is captured, and the captain, to induce one of the crew to be- 
 come a hostage, promises to pay him wages, at the same rate as before the capture, 
 as long as he shall remain a hostage, such promise is binding on the owners. 
 Yates V. Hall, 1 T. R. 73. 
 
 " The Providence, 1 Hagg. Adm. 391 ; The Gondolier, 3 Ilagg. Adm. 190; 
 Hicks V. Walker, Exch. 1856, 37 Eng. L. & Eq. 542.
 
 44 ON THE LAW OF SHIPPING. [BOOK I. 
 
 advanced wages during the period of his advancement, but onlj 
 wages as a seaman. ^ 
 
 If the mate succeeds to the command of the vessel on the death 
 of the captain, he becomes entitled to extra wages ;2 but a ques- 
 tion has arisen whether he can sue in rem for his services as mas- 
 ter. In England it is settled that he cannot, and such appears to 
 be the law in this country. ^ 
 
 Accidental omissions in the shipping articles may be supplied 
 by parol ; and if seamen sail without any shipping articles, they 
 are then entitled to the highest rate of wages paid at the place at 
 which they ship, within the preceding three months, for the same 
 voyage.* All interlineations, erasures, or alterations are presumed 
 
 ' Wood V. The Nimrod, Gilpin, 83. 
 
 ' Smirh V. Curtis, 5 Allen, 367. 
 
 ' Read v. Chapman, 2 Strange, 937; The Favourite, 2 Rob. Adm. 232. The 
 case of The Brig George, 1 Sumner, 151, has been supposed to advance a con- 
 trary doctrine. The action was in rem by the mate to recover his wages. The 
 claim was admitted, but the owners sought to set off a claim for money expended 
 on account of his sickness, after he had become master. It does not appear that 
 the increased wages due him as master were included in his demand, and the 
 only point in controversy was as to the validity of the set-off. The English au- 
 thorities have been followed by Judge Belts in the case of The Schooner 
 Leonidas, Olcott, Adm. 12. See also Airey v. The Brig Ann C. Pratt, 1 Curtis, 
 C. C. 395, 398. 
 
 * Stat. 1790, c. 29, § 1, 1 U. S. Stats, at Large, 131 ; Stat. 1840, c. 48, § 10, 
 5 U. S. Stats, at Large, 394. The former of these acts has been held not to be 
 applicable to a seaman on board a tug-boat which ran from the mouth of the 
 Kiver Detroit to Port Huron. Milligan v. Propeller B. F. Bruce, 1 Newb. Adm. 
 539. In England, if the articles are signed and the rate of wages omitted, parol 
 evidence of the rate agreed on is admissible. The Porcupine, 1 Hagg. Adm. 
 378; The Harvey, 2 Hagg. Adm. 79; The Prince George, 5 Hagg. Adm. 376. 
 The same rule has been adopted in this country. Wickham v. Blight, Gilpin, 
 452 ; The Warrington, 1 Blatchf & H; Adm. 335. It seems to have been sup- 
 posed by Judge Bells, that the highest rate of wages payable within the 
 three months previous might be recovered in such a case. But the statute of 
 1790 applies only when the master neglects to insert in the contract the voyage 
 and the length of time, and does not apply to the omission to insert the rate of 
 wages. Under the statute of 1 790, Mr. Justice Peters, in the case of Jameson v. 
 The Ship Regulus, 1 Pet. Adm. 212, stated that he had been of the opinion that 
 if there was a verbal agreement for wages, this superseded the law, and was to be 
 taken as the contract. Mr. Justice Story, in a note to Abbott on Shipping, 607, 
 said : " No case is referred to where such a decision had been made ; and before 
 it could be made, it would require very grave consideration, how tar such a verbal 
 agreement, in contravention of the statute, should be admitted to supersede the
 
 CH. XV.] SHIPPING ARTICLES. 45 
 
 to be fraudulent, unless satisfactorily explained. ^ It may be 
 added, that the usual rules of evidence and of construction apply 
 to the shipping articles ; ^ but a seaman may show by parol that 
 written statements were made' to induce him to sign,^ as that the 
 voyage or time of service represented was not that which is oil 
 the paper ; * or that the articles have been altered since they were 
 
 positive direction of the statute as to the highest wages." In The Crusader, 
 Ware, 437, parol evidence was held Inadmissible to prove that a lower rate of 
 wages or a ditFerent mode of compensation was agreed on. The Act of 1840 has 
 enlarged that of 1790 to some extent. The tenth section provides that "all 
 shipments of seamen made contrary to the provisions of this and other acts of Con- 
 gress, shall be void ; and any seaman so shipped may leave the service at any 
 time, and demand the highest rate of wages paid to any seaman shipped for the 
 voyage, or the sum agreed to be given him at iiis shipment." The Act of 1790 
 does not exempt the seaman from penalties and forfeitures incurred under the 
 maritime laws pre-existent to that act. Jameson v. The Ship Regulus, 1 Pet. 
 Adm. 212. If a seaman ship without signing the articles, an implied contract is 
 presumed, by which he is bound to remain with the ship till the voyage is termi- 
 nated. Jansen v. The Ileinrich, Crabbe, 226. 'In Montgomery v. Tyson, U. S. 
 D. C. Mass., Lowell, J., it was contended that as the copy of the articles produced 
 did not contain the length of time the whaling voyage was to last, they were void. 
 It was proved that the usage in the Greenland fishery was to stipulate for a term 
 not exceeding thirty months, that it was so understood in this case, and that the 
 copy of the articles certified by the collector, which- was taken in the ship, was so 
 written out. How the discrepancy occurred was not shown, but there being no 
 reason to suspect fraud on the part of any one, parol evidence was admitted to 
 supply the defect. 
 
 1 Stat. 1840, c. 48, § 4, 5 U. S. Stats, at Large, 395. In the case of The Sch. 
 Eagle, Olcott, Adm. 232, it was held, that this applied only to such alterations as 
 would vary the effect of the shipping articles in regard to seamen, and not to im- 
 material erasures. 
 
 * But a court of admiralty will construe the articles liberally. ]\Ir. Justice 
 Story, In the case of The Brutus, 2 Gallis. 526, 537, said, speaking of shipping 
 articles : " These, like all other mercantile instruments, are drawn up in a very 
 lax and inartificial manner. To construe the language by the technical rules of 
 literal interpretation would be to defeat the manifest intention of the parties. 
 We are, therefore, bound to construe it with great liberality, and to look to the 
 general scope and object of the instrument, rather than to weigh minutely the 
 force of detached expressions." 
 
 ^ Baker v. Corey, 19 Pick. 496; The Enterprise, 2 Curtis, C. C. 317, 
 320. 
 
 * In The Cypress, 1 Blatchf. & H. Adm. 83, twelve months was the time of ser- 
 vice mentioned in the articles. Held, that it could be shown by parol that nine 
 was the time agreed upon. The question, in regard to the admissibility of parol 
 evidence to change the voyage described in the shipping articles, was elaborately
 
 46 ON THE LAW OF SHIPPING. [BOOK I. 
 
 subscribed. 1 In the United States the shipping articles for a 
 fisliing voyage are required to be indorsed or countersigned by 
 the owners, but the seaman is not restricted to those who sign, in 
 an action for his wages, but may show aliunde who are the actual 
 
 discussed in the case of Page v. Sheffield, 2 Curtis, C. C. 377. The action was 
 for wages alleged to be due on a voyage from San Francisco to Calcutta, and 
 thence to Boston. The libellant was discharged against his will at Calcutta. In 
 the articles the voyage was described to be from San Francisco to Calcutta. Evi- 
 dence was offered to prove that the libellant shipped for the whole voyage from 
 San Francisco to Boston. Mr. Justice Curtis held, that it was admissible on two 
 grounds. First, that the voyages from San Francisco to Calcutta, and from the 
 latter place to Boston, might be considered as distinct, and the articles for the 
 first not being intended to include the second, the latter might be proved by pa- 
 rol. Second, if the contract was entire, then the articles did not describe the 
 voyage, and the master was, therefore, prohibited from taking the libellant to sea 
 under such articles ; and parol evidence is always admissible to impeach a contract, 
 by showing it to be made in violation of law. See also the same case in the Dis- 
 trict Court, Sheffield v. Page, 1 Sprague, 285. But the ship-owner cannot vary 
 the voyage by parol evidence. The Triton, 1 Blatchf & H. Adm. 282 ; The Ex- 
 chantre, id. 366. In Burke v. Buttman, U. S. D. C. Mass., Lowell, J., said : " It 
 will be seen that my opinion does not turn upon the oral evidence at all. It was 
 admitted in favor of the seamen because the circuit court has held that it is ad- 
 missible for them ; a ruling which I consider is open to some question. It was 
 admitted for the owners merely in rebuttal. It is a dangerous sort of evidence^ 
 and one on which I am always reluctant to decide a case. It must not be sup- 
 posed that If it were fully and clearly established by such evidence that the sea- 
 men were to be discharged in Africa, that the master would be entitled to dis- 
 charo-e them there. The rule of evidence, like the contract Itself, is established 
 for the benefit of the ignorant and careless seamen, and for seamen only. Mas- 
 ters and owners have ample protection in the contract Itself, which, if properly 
 drawn up and clearly explained to the men, will be conclusive. These articles 
 do not fully and fairly warn the men of the rights which the master undertook 
 to exercise. It is upon this that the case is decided." 
 
 * See p. 45, note 1. The general rule In regard to parol evidence Is stated in 
 Willard v. Dorr, 3 Mason, 161, 169. Mr. Justice Story there said: " But prima 
 facie the shipping articles are presumed to import verity, and to be as Avell known 
 to the owner as master ; and it is incumbent on the owner, if he means to contest 
 the fact, to offer some evidence of fraud, mistake, or Interpolation." If there is a 
 stipulation in writing for a series of voyages, this may be terminated or varied by 
 the mutual consent of the master and crew, and a new voyage subsituted by a 
 parol agreement. Plehl v. Balchen, Olcott, Adm. 24. In The Trial, 1 Blatchf. 
 & H. Adm. 94, It was held that in a suit for wages. If the owners do not produce 
 the shipping articles, even though they are not called upon to do so, jiarol evidence 
 of the terms of hiring may be given. But see The Brig Osceola, Olcott, Adm. 
 450.
 
 CH. XV.] WAGES. 47 
 
 owners.^ The master of a vessel has no power to bind the owner 
 to pay a seaman three months' wages after the voyage has termi- 
 nated and all services on his part have ceased, but if a seaman is 
 hired in a foreign country, the master may bind the owners to pay 
 him such sum as will enable him to return .^ 
 
 SECTION TIL 
 
 OF WAGES. 
 
 The contract between a seaman and the owner of the ship, or 
 the master as his agent, is essentially a contract of hiring and ser- 
 vice. All that is implied in such contracts by the law generally 
 belongs to their contract ; ^ as, on the one hand, the doing the 
 work faithfully, obeying all proper orders and directions, and pos- 
 sessing and exerting the knowledge, skill, and care requisite for 
 doing in a proper way the service undertaken ; and, on the other, 
 good treatment, and due payment. All of these are somewhat 
 modified by the peculiar nature of this contract or relation, and 
 by the statutes to which it has given rise. But so far as these 
 modifications or qualifications do not apply specifically, we find 
 the general principles of the law in force. 
 
 Seamen may be hired and payment promised in four ways. 
 They may be employed for a certain voyage, to receive a certain 
 proportion of the freight earned ; * but we doubt whether this is 
 ever practised in this country, unless, perhaps, in small coasting 
 vessels. They may be hired for a certain voyage,^ or by the run, 
 to be paid a round sum at the close ;^ and this is not very un- 
 
 * Wait V. Gibbs, 4 Pick. 298. It would seem, however, that he could not bring 
 an action on the shipping articles except against those whose names appeared on 
 that instrument. 
 
 * Canizares v. The Santissima Trinidad, Bee, Adm. 353. 
 
 » The Dawn, Ware, 486, 494 ; The Brig Osceola, Olcott, Adm. 450, 461 ; The 
 Cadmus, Blatchf. & H. Adm. 139; Brig Cadmus v. Matthews, 2 Paine, C. C. 
 229. 
 
 i The Sarah Jane, Blatchf. & H. Adm. 401 ; Anonymous, 1 Pet. Adm. 205, 
 note. 
 
 ' The Debrecsia, 3 W. Rob. 33. 
 
 « The Louisa Bertha, 1 Eng. L. & Eq. 665 ; Miller v. Kelly, Abbott, Adm. 564.
 
 48 ON THE LAW OF SHIPPING. [BOOK I. 
 
 usual. Thej may be hired on shares, which is in practice con- 
 fined to whaling^ and fishing voyages,^ with some exception in 
 
 1 Barney v. Coffin, 3 Pick. 115 ; Bishop i'. Shepherd, 23 Pick. 492; Coffin v. 
 Jenkins, 3 Story, 108 ; Joy u. Allen, 1 Sprague, 130,. 2 Woodb. & M. 303; Allen 
 V. Hitch, 2 Curtis, C. C. 147 ; The Sarah Jane, Blatchf. & H. Adm. 401 ; Reed v. 
 Hussey, id. 525 ; Swain v. Rowland, 1 Sprague, 424. The contract is one of hir- 
 ing and not of partnership. Wilkinson v. Frasier, 4 Esp. 182; Mair v. Glennie, 
 4 M. & S. 240 ; The Frederick, 5 Rob. Adm. 8 ; Baxter v. Rodman, 3 Pick. 435 ; 
 Grozier v. Atwood, 4 id. 234 ; Bishop v. Shepherd, 23 id. 492 ; Reed v. Hussey, 
 Blatchf & H. Adm. 525. In the above case of Barney v. Coffin, it was held that 
 a usage that the master of a whaling ship should have a lien on the lays of the 
 seamen for necessary clothing furnished during the voyage, was reasonable in its 
 nature, and that the lien was not lost by putting the oil marked with the ship's 
 mark on a wharf, whence part of it was taken by one of the owners of the vessel, 
 but afterwards returned and delivered up to a general agent to be sold for the 
 purpose of settling the voyage. In The Hibernia, 1 Sprague, 78, the owners 
 claimed to charge the master's bills for slops furnished the men, without giving 
 the items or any evidence of the same, on the ground that as the master had a 
 lien upon the proceeds of the voyage for the slops, the owners must retain the 
 nominal amount of the bills; but the court refused to allow the claim. In Jay v. 
 Almy, 1 Woodb. & M. 262, it was held that the master of a whaling ship is not 
 personally responsible for the wages of a seaman, when the vessel had been lost, 
 and the cargo sent home. In Hussey v. Fields, 1 Sprague, 394, eight hundred 
 barrels of oil had been sent home, and two thousand more takAi when the ship 
 put into a foreign port and was condemned and sold. The master settled 
 with the men for their share on board, and gave them orders on the owners for 
 their proportion of the eight hundred barrels. The other portion was handed 
 over to the consul to be sent home, when it was illegally seized and sold. The 
 owners claimed, that as the crew were only entitled to share the net profits of the 
 voyage, the portion they had received should be debited to them as against the 
 whole amount of oil realized by the voyage. But the court held that the cap- 
 tain, in making the disposition of the property, acted as the agent of the owners 
 and not of the crew, and that the latter were entitled to their proportion of the 
 eight hundred barrels. In Montgomery v. Tyson, U. S. D. C. Mass., Lowell, J., 
 the vessel had been wrecked, and part of the oil saved and sent home. The arti- 
 cles contained a clause giving the owners of the vessel a right to sell the oil and 
 bone. It was contended that this was a waiver of the lien of the seamen, if they 
 originally had any. The court said that where goods belonged to the owners of 
 a vessel, a reasonable sum would be considered as freight, and that in a whaling 
 voyage " it may almost be said that the cargo to the extent of the owners' shares 
 represents freight exclusively, having been earned in a long cruise by the use of 
 the vessel and her outfits." On the question of the waiver the court held that, 
 until a sale was actually made, the lien remained, and that only the net proceeds 
 were liable. ;See also Reed v. Hussey, 1 Blatchf. & H. Adm. 525. In Jay v 
 
 * See Wait v. Gibbs, 4 Pick. 298; Knight v. Parsons, 1 Sprague, 279.
 
 CH. XV.] WAGES. 49 
 
 the case of coasting vessels. ^ But the fourth, which is by far the 
 most common and well-established practice, is to hire them for a 
 definite voyage or voyages, or sometimes for a definite period, on 
 monthly wages.^ 
 
 If a woman serves on board as a cook, or in any capacity, she 
 is entitled to all the rights and is subject to all the disabilities of 
 a seaman.^ 
 
 It has been settled that where seamen ship on board a privateer, 
 and before the cruise begins become disabled by sickness, and 
 neither assist in making prizes actually or constructively, they are 
 not entitled to any share in them.* The same rule would doubt- 
 Allen, 1 Sprague, 130, the vessel was wrecked, part of the oil shipped home by the 
 master, and the rest sold by him and the proceeds fraudulently converted to his own 
 use. Judge Sprague held that the master was the agent of the owners and not of 
 the crew, and that the owners were liable as if the oil had actually come into their 
 possession. In Montgomery v. Tyson, U. S. D. C. Mass., Lowell, J., said he should, 
 until otherwise instructed by a superior court, adhere to the doctrine laid down 
 by Judge Sprague, cited above, and added : " I am aware that some doubts were 
 expressed upon this point by Mr. Justice Woodbury, in the same case, repoi-ted as 
 Joy V. Allen, 2 Woodb. & M. 303, but it seems, on a careful examination of the 
 judgment, that the decision did not turn upon this point, and I have reasons to 
 believe that Judge Sprague did not consider the point as definitely settled against 
 his opinion." 
 
 1 The Crusader, Ware, 437, 441. 
 
 ^ The Brig Cadmus v. Matthews, 2 Paine, C. C. 229 ; The Cadmus, Blatchf & 
 H. Adm. 139. See also The Steamboat Hudson, Olcott, Adm. 396. It is some- 
 times important to determine whether the contract is for the entire voyage at so 
 much per month, or for that rate so long as the party remains during the voyage. 
 In Taylor v. Laird, 1 H. & N. 266, 38 Eng. L. & Eq. 281, the following letter 
 was written to the plaintiff" by the owner of the vessel : " I am willing to give you 
 the command of the steamer destined for an exploring and trading voyage up the 
 River Niger and its tributaries ; your pay to be at the rate of £.50 per month, 
 commencing from the first of December, 1853, and a commission of twenty per 
 cent on the net proceeds of the produce you may bring down." The plaintitF ac- 
 cepted the offer. Held, that this was not an entire contract for the whole voyage, 
 but a contract which gave a cause of action for the salary as each month arose, 
 and which, when once vested, was not subject to be lost or divested by the plain- 
 tiff''s abandonment of the voyage. 
 
 3 The Jane & Matilda, 1 Hagg. Adm. 187 ; Wolverton v. Lacey, U. S. D. C. 
 Ohio, 18 Law Rep. 672 ; Sageman v. Sch. Brandy wine, 1 Newb. Adm. 5. 
 
 * Ex parte Giddings, 2 Gallis. 56. In this case the libellant went on shore 
 before the cruise began, and by so doing voluntarily abandoned the enterprise. 
 It was admitted that if he had left the ship after the cruise began, he would have 
 had a right to his share of the adventure. And the court said that if a disability 
 
 VOL. II. 4
 
 50 ON THE LAW OF SHIPPING. [BOOK I. 
 
 less be applied to a suit for wages in an ordinary case of a mer- 
 cliant ship. For the settled rule appears to be, that if the voyage 
 is broken up, or the seamen are dismissed without cause before 
 the voyage begins, they have their wages for the time they serve, 
 and a reasonable compensation for special damages.^ If a mas- 
 ter discharges a seaman against his consent and without good 
 cause, in a foreign port, he is liable to a fine of five hundred dol- 
 lars or six months' imprisonment.^ And the seaman may recover, 
 besides, full hidemnity for liis time lost or expenses incurred by 
 reason of such discharge.'^ And where a vessel was seized in a 
 
 happen before the voyage is begun, the manner should be paid a reasonable sum 
 for any services actually rendered. 
 
 ^ Parry v. The Peggy, 2 Browne, Civ. & Adm. Law, 533. The statement of 
 this case is as follows : '• The promovents bad agreed for monthly wages, for a 
 voyage to the West Indies. They worked on board the ship for some days in 
 the harbor of Dublin ; afterwards the owner of the ship, having changed his 
 mind, determined to alter the voyage, and to postpone the sailing of the ship, 
 "whereupon the seamen were dismissed without their wages, who now libelled 
 against the ship. As surrogate of the admiralty, I decreed for the seamen, on the 
 reason of the thing, and the authority of Wells v. Osmond, 2 Show. 238." What 
 wages were decreed does not appear. 
 
 ' Act of 1825, c. 65, § 10, 4 U. S. Stats, at Large, 117. In United States v. 
 Netcher, 1 .Story, 307, Mr. Justice Story, speaking of the tenth section of the 
 above act, said : " In my judgment, this section enumerates three distinct and 
 mdependent offences. 1. The maliciously and without justifiable cause forcing 
 any officer or mariner on shore in any foreign port. 2. The maliciously and with- 
 out justifiable cause leaving such oflicer or mariner behind in any foreign port ; 
 and 3. The maliciously and without justifiable cause, refusing to bring home again 
 all the officers and mariners of the ship in a condition to return, and willing to 
 return on the homeward voyage." In United States v. Ruggles, 5 Mason, 192, 
 " maliciously" in this act was held to mean an act wantonly done, that is, with a 
 wilful disregard of right and duty, an act done contrary to a man's own copvic- 
 tions of duty. See also United States v. Coflin, 1 Sumner, 394; United States v. 
 Lunt, 1 Sprague, 311, 
 
 ' Crapo V. Allen, 1 Sprague, 184. In Emerson v. Ilowland, 1 Mason, 45, 53, 
 Mr. Justice Slory said : "In some adjudged cases, indeed, wages up to the success- 
 ful termination of the voyage have been allowed ; in others, wages up to the 
 return of the seaman to the country where he was originally shipped, without 
 reference to the termination of the voyage. The Beaver, 3 Rob. Adm. 92; Rob- 
 inett V. The Ship Exeter, 2 Rob. Adm. 2G1 ; Hoyt v. Wildfire, 3 Johns. 518; 
 Brooks V. Dorr, 2 Mass. 39; Ward v. Ames, 9 Johns. 138; Sullivan v. Mor- 
 gan, 11 Johns. 6G- Rice v. The Polly and Kitty, 2 Pet. Adm. 420, 423, note; 
 Mahoon y. The Glocester, 2 Pet. Adm. 403, 40(;, note; The Littlejohn, 1 Pet. 
 Adm. 115, 119, 120. But these apparent contrarieties are easily reconcilable, 
 when the circumstances of each case are carefully examined. In all the
 
 CH. XV.] WAGES. 61 
 
 foreign port for a debt of its owner and sold by order of a State 
 court, and the seamen remained by the vessel until the sale, and 
 were obliged to obtain food at their own expense, the owner having 
 made no provision for their subsistence, wages were allowed up 
 to the time of sale, the expense of board, and $ 10 for each of the 
 libellants for his time and expense in returning home.^ And in 
 cases where the voyage is broken up by misfortune, so that the 
 master would be justified in discharging the crew, they would still 
 
 cases, a compensation is intended to be allowed, which shall be a complete 
 indemnity for the illegal discharge, and this is ordinarily measured by the loss 
 of time, and the expenses incurred by the party. It is presumed that after his 
 return home, or after the lapse of a reasonable time for that purpose, the seaman 
 may, without loss, engage in the service of other persons, and where this happens 
 to be the case, wages are allowed only until his return, although the voyage 
 may not then have terminated. On the other hand, if the voyage have ter- 
 minated before his return, or before a reasonable time for that purpose has 
 elapsed, wages are allowed up to the time of his return, for otherwise he would 
 be without any adequate remedy. Cases, however, may occur of such gross 
 and harsh misbehavior, or wanton injustice, as might require a more ample com- 
 pensation than could arise from either rule." See also Jones v. Sears, 2 Sprague, 
 43 ; The Union, Blatchf. & H. Adm. 545 ; Farrell v. French, Blatchf. & H. 
 Adm. 275; The Maria, id. 331 ; Brunent v. Taber, 1 Sprague, 243 ; Nevitt v. 
 Clarke, Olcott, Adm. 316; The Nimrod, Ware, 9; Hutchinson v. Coombs, id. 
 65 ; Ex parte Giddings, 2 Gallis. 54. No deductions are made, except that the 
 wages earned on the homeward voyage are to be deducted from the expenses 
 allowed for the return. Emerson v. Howland, 1 Mason, 45, 54 ; Hutchinson v- 
 Coombs, Ware, 65. In Sheffield v. Page, 1 Sprague, 285, the mate was tortiously 
 discharged at Calcutta. No situation was offered him as mate, and he came 
 home before the mast. Held, that the wages thus earned by him should not be 
 deducted from the amount decreed against the owner. See Hoyt i'. Wildfire, 3 
 Johns. 518; Nevitt v. Clarke, Olcott, Adm. 316, 320. Where seamen were 
 turned off from a privateer without lawful cause, they Avere held to be entitled to 
 their proportion of the prizes taken during their absence. Mahoon v. The Gloces- 
 ter, 2 Pet. Adm. 403. — As a general rule of law a breach of a statute by a mas- 
 tei", which subjects him to a penalty, does not take away the right of a seaman, 
 who has been injured in consequence of such breach. Couch v. Steel, 3 Ellis & 
 B. 402, 24 Eng. L. & Eq. 77. In Burke v. Buttman, U. S. D. C. Mass., Lowell, 
 J., it was claimed that the seamen might have come home in a vessel belonging to 
 the same owners. It appeared that before the seamen were discharged they were, 
 against their consent, transferred to this vessel, and that while there they had a 
 controversy with the master, in which he was in the wrong. Held, under the cir- 
 cumstances, that they were not obliged to come home in this vessel after they were 
 discharged. 
 
 ' The Gazelle, 1 Sprague, 378. See also Anderson v. Sloop Solon, Crabbe, 1 7.
 
 52 ON THE LAW OF SHIPPING. [BOOK I. 
 
 be entitled to their wages.^ If the seaman is compelled to desert 
 by the cruelty of the master or other officers, he has his wages in 
 full.2 Where a second mate was discharged by the consul at his 
 own request in a foreign country, on account of the illegal con- 
 duct of the master towards him, it was held that his contract 
 wages and expenses should be allowed, up to the time when he 
 might have reached his original home port, deducting what he 
 had earned, or might have earned, on his passage home.^ If a 
 person is disrated on account of being incompetent to fulfil the 
 duties of his office, and discharges afterwards the duties of his 
 inferior station with fidelity, it may not be quite certain, on the 
 authorities, how he should be rewarded, but on principle we 
 should say that a reasonable deduction should be made from the 
 agreed price while he filled the station for which he shipped, and 
 that he would be entitled to the regular wages while he filled the 
 lower station.'^ And if a seaman is promoted duing a voyage, he 
 
 ^ In Bray v. Ship Atalanta, Bee, 48, the vessel struck in going over Charleston 
 Bar, and was obliged to put back to Charleston, where she was condemned as 
 unseaworthy. Wages for the time the men were on board were decreed. In 
 The Elizabeth, 2 Dods. 403, the vessel was at a foreign port in a state of distress. 
 As it would have taken a long time to make the repairs, the master discharged 
 the crew, as he alleged, with their consent, and paid their passage home. The 
 seamen claimed wages to the time of the vessel's return. But the court held that 
 although the discharge was justifiable under the circumstances, yet that the crew 
 were entitled to their wages up to the time of their return home. The consent 
 on their part to the discharge, was held not to be voluntary, as there was no 
 alternative but starvation left. In The Fair American, Bee, 134, it was held 
 that seamen who had been taken by a privateer from their vessel, and rejoined 
 her at the earliest opportunity, were entitled to their wages, as they were absent 
 without any fault of their own, and that, as the first voyage was defeated, the sea- 
 men were bound to continue with the vessel till the voyage In contemplation was 
 ended, and at the same rate of wages, and that they should receive two thirds of 
 what was due to them, and the remainder at the next port of delivery. 
 
 ^ Sherwood v. Mcintosh, Ware, 109; The America, Blatchf & H. Adm. 185 ; 
 Knowlton v. Boss, 1 S2)rague, 163; The Minerva, 1 Hagg. Adm. 347; Ward v. 
 Ames, 9 Johns. 138; LImland v. Stephens, 3 Esp. 269; Prince Edward v. 
 Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205. In Rice v. The Polly & 
 Kitty, 2 Pet. Adm. 420, wages were only demanded for the time the seamen re- 
 mained on board. 
 
 ^ Foye I'. Dabney, 1 Sprague, 212. 
 
 * Brunent v. Taber, 1 Sprague, 243. It is very obvious that ho would not be 
 allowed ,to obtain the rate of wages for which he shipped, if lie were unfit for the 
 station • nor would the wages of the inferior station be a criterion of the proper 
 rate of recompense before he was disrated. Judge Ware, in Sherwood v. Mc-
 
 CH. XV.] WAGES. 63 
 
 is entitled to the wages of that station thenceforward .^ So if the 
 master dies on a voyage, and the mate takes liis place, the latter 
 is entitled to wages from that time as master.^ A seaman is en- 
 titled to the whole of his wages, although disabled by sickness, 
 even if by reason of that sickness he was obliged to be left at a 
 foreign port,"^ and a fortiori if having been sent ashore on the ship's 
 business he there fall sick.* But if he recover and may rejoin his 
 
 Intosh, Ware, 109, 110, after stating for what a man might be disrated, said: 
 " In such a case the master will also be justified, not in refusing altogether to pay 
 him wages, but in making from them a reasonable deduction." In The Elizabeth 
 Frith, Blatchf & H. Adm. 195, 210, it does not clearly appear what wages were 
 allowed. The language of the court is: "The cook was properly degraded, and 
 can only recover wages for the duties he performed, namely, those of an ordinary 
 seaman." In Smith v. Jordan, U. S. C. C. Mass., 1857, 21 Law Rep. 204, 
 where a cooper was degraded to the position of a foremast hand, when the court 
 considered he should have been tried as a coopei-'s mate, it was held that he 
 should receive the wages of the latter office. In Wheatley v. Hotchkiss, 1 
 Sprague, 225, the libellant shipped as an able seaman, but was in fact competent 
 to perform only the duties of a green hand. It was held that the measure of com- 
 pensation for his services was not the wages of a green hand for such a voyage, 
 but only what his services were actually worth to the owners. No wages were 
 allowed in The Buen.a Vista, 3 Blatchf. C. C. 510, where a steward was utterly 
 incompetent and unskilful. 
 
 ^ The Sch. Wm. Martin, 1 Sprague, 564. 
 
 "' Smith V. Curtis, 5 Allen, 367. 
 
 ' Mahoon v. Brig Glocester, Bee, Adm. 395 ; Croucher v. Oakman, 3 Allen, 
 185. In Chandler v. Grieves, 2 H. Bl. 606, note, the plaintiff shipped on a voy- 
 age from London to Honduras, thence to Philadelphia, and thence back to Eng- 
 land. While in the Bay of Honduras the plaintiff was injured while on duty, and 
 was afterwards put ashore at Philadelphia, and his wages up to that time paid. 
 This action was brought to recover wages for the whole voyage. The court were 
 of the opinion that the rules of maritime law should govern, and directed an 
 inquiry to be made in the courts of admiralty, whether, according to the usage 
 there, a disabled seaman would, under similar circumstances, recover wages for 
 the whole voyage. On an inquiry being made, it was found " that in every 
 instance, a seaman disabled in the course of his duty was holden to be entitled to 
 wages for the whole voyage, though he had not performed the whole." In Hainey 
 V. The Tristram Shandy, Bee, Adm. 414, the libellant was sent in with a prize, 
 and soon afterwards fell sick. The vessel during the cruise, came into the same 
 port to refit, and a part of the crew left her, and the old cruise was broken up, 
 and new articles entered into without the libellant's consent. Held, that he was 
 entitled to recover his share of all prizes taken before the time expired for which 
 the original articles were signed, notwithstanding he was on shore, sick, at the 
 time. See also Nevitt v. Clarke, Olcott, Adm. 316 ; Shakerly i'. Pedrick, Crabbe, 
 63 ; and cases post, p. 80, et seq. 
 
 * Hart V. The Littlejohn, 1 Pet. Adm. 115, 117, per Peters, J.
 
 54 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ship, but does not, this stops his wages from the day when he conld 
 have joined her.^ Of course, if the sickness was caused by the 
 fault of the seaman, he is not entitled to any wages during the 
 time he is off duty.^ 
 
 In some of the southern States of this country, colored seamen 
 were formerly imprisoned during the stay of the vessel in the port, 
 and the master was obliged to pay the expenses of such imprison- 
 ment. He was not, however, allowed to deduct such sum from 
 the wages of the seamen.^ 
 
 If a seaman wrongfully discharged, and therefore claiming full 
 wages, has earned other wages in another vessel, in an interme- 
 diate time, it would seem that the question, whether these wages 
 are to be deducted, would be affected, at least, if not determined, 
 in this country, by the question, whether the wages allowed after 
 the deduction give him an adequate indemnity.* So, whether 
 seamen shoxild have wages to the end of a prosperous voyage, 
 
 1 Williams v. The Hope, 1 Pet. Adm. 138. 
 
 ^ Johnson v. Huckins, 1 Sprague, 6 7. The libellant, in this case, admitted that 
 the sickness was caused by his own fault, and deducted the amount which Avould 
 have been due, while he was off duty. The court held that the respondents were 
 also entitled to set off the amount due for board and subsistence during the sick- 
 ness, but not wages paid a substitute, there being no evidence that these amount- 
 ed to more than the wages deducted. See Jones v. Sears, 2 Sprague, 43. 
 
 ' Tlie Cynosure, 1 Sprague, 88. Such acts are unconstitutional and therefore 
 invalid. The Ship VVm. Jarvis, 1 Sprague, 485. 
 
 * Emerson v. Rowland, 1 Mason, 45, 54 ; Hutchinson t>. Coombs, Ware, 65. 
 See Hoyt v. Wildfire, 3 Johns. 518. The principle laid down by Mr. Justice 
 Storj/ in the case first above cited is, that in no case are the wages earned in the 
 intermediate time to be deducted from the wages due, but merely from the 
 expenses of the return to the home port, and that even then they are not to be 
 deducted, if such a course would deprive the seaman of his just indemnity. In 
 Sheffield v. Page, 1 Sprague, 285, it was held that when an officer was tortiously 
 discharged at a foreign port, he was not obliged to work his -wslj home as an ordi- 
 nary seaman, and that if he did so, not being able to obtain the situation wliich 
 he had before held, wages thus earned were not to be deducted. When this 
 case came up on appeal, this point does not appear to have been controverted. 
 Page V. Sheffield, 2 Curtis, C. C. 377. See Hunt v. Colburn, 1 Sprague, 215; 
 The Sch. Wm. Martin, 1 Sprague, 564 ; Jones v. Sears, 2 Sprague, 43. In Bates 
 V. Seabury, 1 Sprague, 433, the seaman was wrongfully discharged in a foreign 
 port, and came home in another vessel at higher wages. Held, that he was 
 entitled to the wages earned in the first vessel, and that it was not proper to 
 deduct the wages earned in the second vessel from what would have been due 
 had he completed the voyage in the first.
 
 CH. XV.] WAGES. 55 
 
 however long, or only wages to the time when they actually 
 reached home, or might have reached home, must depend upon 
 the circumstances and merits of each case.^ The rig-lit of the 
 
 CI 
 
 seamen is in fact a claim for damages for breach of contract, and 
 there should be an indemnity. That is, they should be put into 
 as good a condition as they would have been in, had the contract 
 been performed.^ Thus, if the discharge is caused by a disaster 
 which is almost a wreck, making the repairs expensive and of 
 doubtful utility, the least expense and wages which will bring 
 them home would seem to be all they should have.^ If the master 
 detains the clothes of the seaman, damages for the detention may 
 be recovered in the libel for the wrongful discharge.^ 
 
 The vessel and owners are not, however, liable in such a case, 
 unless the owners have ratified the acts of the master, or upon 
 demand have refused to deliver the clothing.^ 
 
 If a seaman is discharged with his own consent in a foreign 
 port, wages |>ro rata will generally be allowed, unless the parties 
 agree upon other terms. If an agreement is made, it will be up- 
 held if it appears to the court to be just and reasonable.*^ 
 
 We shall hereafter consider in what cases the three months' 
 
 ^ See cases cited ante, p. 50, n. 3. 
 
 '^ The Dawn, Ware, 485, 494, per Ware, J. See Richardson v. Mellish, 2 
 Bing. 229 ; The Camilla, Swabey, Adm. 312. In Parsons v. Terry, U. S. D. C. 
 Mass., Lowell, J., the master was dispossessed of his office, and claimed to recover, 
 in addition to the damages which naturally resulted from the breach of contract, 
 further damages on the ground that the owners entertained suspicions of his in- 
 tegrity and competency as a master, and had assigned those suspicions as the 
 reason for their action. The judge found, as a matter of fact, that there was no 
 fraud or actual malice on the part of the owners, that such suspicions were not 
 well founded, there being some slight cause for anxiety and distrust, and held 
 that, although the action was tort, the gist of it was the breach of contract, and that 
 only those damages which naturally resulted from the breach of contract could be 
 recovered. 
 
 ^ See The Elizabeth, 2 Dods. 403, cited anie, p. 52, n. 
 
 * Hutchinson v. Coombs, Ware, 65; Hunt v. Colburn, 1 Sprague, 215. 
 
 ^ The Hibernia, 1 Sprague, 78. See Hunt v. Colburn, id. 215. In Nevitt v. 
 Clarke, Olcott, Adm. 316, 321, it was held that in the absence of any proof, the 
 court would not infer that a seaman's clothes were detained when he left the 
 ship to be placed in a hospital, and the court said : " The inference that a sailor's 
 wearing apparel is detained by the ship could never be raised, except in case of 
 his desertion, or being forcibly put ashore, or wrongfully abandoned by the mas- 
 ter when ashore." 
 
 ° Hathaway v. Jones, 2 Sprague, 5G.
 
 5Q ON THE LAW OF SHIPPING. [BOOK I. 
 
 wages, payable to the American consul in case of the discharge 
 abroad of an American seaman, are due,^ and the seaman may, it 
 is held, if the amount is not paid to the consul, recover it at home 
 by a suit in admiralty, and the court will decree two months' 
 wages to be paid over to him, retaining the other third for the 
 United States.^ But it has been doubted whether it was, by 
 the terms of the statute, payable anywhere or to any person but 
 the American consul,^ or recoverable at common law.* If the 
 money is paid over to the consul and he retains it, it has been 
 held that the owners, having complied with the act of Congress, 
 are no further liable.^ But if the discharge is without the con- 
 sent of the seaman, it is no defence that the money has been paid 
 to the consul, if the seaman has derived no benefit from it.^ A 
 discharge when made in a foreign port is required to be made 
 before the consul, but the payment of wages already due is not ; 
 and the consul had no right to charge a commission for witnessing 
 the settlement." 
 
 And if the libellant is named as an American seaman in the 
 master's list of the crew, this entitles him to recover, although 
 omitted to be named as such seaman in the list of the crew cer- 
 tified from the collector's office.^ 
 
 If, by the shipping articles, the wages are not to be paid until 
 
 * See post, p. 84, n. 5 ; p. 85, n. 1. 
 
 " Emerson v. Rowland, 1 Mason, 45; Orne v. Townsend, 4 Mason, 541 ; Pool 
 V. Welsh, Gilpin, 193 ; Bates v. Seabury, 1 Sprague, 433. In the following cases 
 it does not clearly appear whether the owners were held liable for more than two 
 months' wages. The Dawn, Ware, 485 ; The Saratoga, 2 Gallis. 164; Wells v. 
 Meldrun, Blatchf. & H. Adm. 342. 
 
 ^ See Pool V. Welsh, Gilpin, 193. 
 
 * In New York, the supreme court of the State has held that the seamen can- 
 not recover this amount at common law. Ogden v. Orr, 12 Johns. 143; Van 
 Beuren v. Wilson, 9 Cow. 158. The English admiralty court has also refused to 
 enforce this provision, on the ground of their having no jurisdiction, it being a 
 municipal regulation of a foreign country. The Courtney, Edw. Adra. 239. 
 
 ^ Frederichsen v. 290 Barrels Sperm Oil, U. S. D. C. Mass., 1859. It appears 
 from this case, that it is the universal custom of the American consul at Fayal to 
 retain the three months' wages, on account of the United States, and to pay no 
 part thereof to the seamen. This case is reported, but not on this point, in 
 1 Sprague, 475. 
 
 ' Brunent v. Taber, 1 Sprague, 243. See also Jones i;. Sears, 2 Sprague, 43. 
 
 ' Hathaway v. Jones, 2 Sprague, 56. 
 
 * Orne v, Townsend, 4 Mason, 541.
 
 CH. XV.] WAGES. 57 
 
 tlie voyage is wholly ended, there is a difficulty in recovering them 
 at common law, if the voyage be interrupted ar broken up at any 
 intermediate port, but there is none whatever in admiralty ; for 
 on a libel for wages, stating facts of this kind, and making out a 
 case where the wages are not forfeited, but they, or compensation 
 in some form, are earned, the court will decree either wages ae 
 such, or damages in the form or stead of wages.^ 
 
 The owner is bound by a contract made by a master for ser- 
 vices to be paid by shares, as much as if by wages.^ But when 
 a seaman, who had contracted for wages, had been fraudulently 
 induced to sign articles by which he was to have shares instead, 
 it was held, even at common law, that the first contract was in 
 force and the latter not ; ^ and it would undoubtedly be so held in 
 admiralty. A contract to serve as seamen for shares, either on 
 a fishing or whaling voyage, does not constitute a partnership. 
 This is now settled, as well at common law as in admiralty;* 
 nor would it make a partnership between one who shipped as 
 mate and the master or owner.^ 
 
 If a minor goes to sea against the will of his parent or guardian, 
 the owners of the vessel are liable in tort, as we shall see here- 
 after,^ or the parent may sue in contract ; but in such a case he 
 cannot recover what the minor's services would have been worth 
 had he remained on shore, but is entitled to recover only on a 
 
 ' The difficulty at common law, mentioned in the text, is not felt in admiralty, 
 since it has been repeatedly decided that the seaman's right to wages flows from 
 the service, and not from the contract or shipping articles. See Mahoon v. Brig 
 Glocester, Bee, Adm. 395, where the point was decided in answer to a plea to the 
 jurisdiction ; and The Trial, 1 Blatchf. & H. Adm. 94, where the point was 
 directly decided. Also in Moran v. Baudin, 2 Pet. Adm. 415, a seaman sued for 
 his wages because the captain had deviated repeatedly from the voyage agreed 
 upon, and although the parties were both Frenchmen, and the ship had not 
 returned to the port to which she was to return, wages were decreed. The de- 
 cision was based partly on the ground that such was the French law. The 
 Dawn, Ware, 485, will be found to be directly in point. The ship was sold by 
 reason of a disaster, and though the two months' extra pay was not allowed, the 
 wages were. 
 
 "' Baker v. Corey, 19 Pick. 496. 
 
 ^ Baker v. Corey, 19 Pick. 496. 
 
 * See cases aiite, p. 48, n. 1. 
 
 * The Crusader, Ware, 437. 
 
 " See post, Book 11. Chap. XIL
 
 58 ON THE LAW OF SHIPPING. [BOOK I. 
 
 qumitum meruit.^ If after part of a whaling voyage has been 
 performed a seaman ships in a foreign port for the residue of the 
 voyage at a lay of one ninetieth, and performs his contract, he is 
 entitled to one ninetieth of the products of the voyage taken dur- 
 ing his time of service, and not to such proportion of one ninetieth 
 of all the oil taken during the whole voyage, as the time he served 
 was of the whole voyage.^ 
 
 If any political events, as a change from war to peace, greatly 
 diminished the risk of the service, on account of which risk the 
 wages were very higli, they are nevertheless undiminished by this 
 change.^ 
 
 If a seaman, on monthly wages, dies during the voyage, it is 
 certain that wages are due to his representatives to the time of 
 his death. But it is quite uncertain whether they are due to 
 the end of the voyage. We think they are not.* Any bargain 
 
 ^ Weeks v. Holmes, 12 Cush. 215. It was also held in this case that the defend- 
 ant could not set otF the advances and outfits paid to the minor ©n the voyage. 
 See Lovrein v. Thompson, 1 Sprague, 355. 
 
 ^ Tompkins 17. Howard, 1 Sprague, 16 7. 
 
 ' In Shaw V. The Lethe, Bee, 424, and McCulloc-h v. The Lethe, Bee, 423, it 
 was decided that freight has no connection with the quantum of wages. It was 
 argued that peace freight only having been earned on the voyage back from 
 Bordeaux, peace wages only ought to be paid, as freight was the mother of wages. 
 The court said that the service or the bargain governed the amount of the wages, 
 and earning of freight governed the payment of them. In this case, the outward 
 voyage was during war, and the homeward voyage was during peace, but the 
 actual risk of war had been incurred. But in Brice v. The Kancy, Bee, 429, 
 the shipping articles had been signed in January, 1783 ; the vessel did not enter 
 the sea until March 20th. On March 3d peace was made. The court said that 
 it was no fault of the men that the ship did not go to sea immediately after the 
 signing of the articles, and therefore they should have wages according to the 
 contract ; but as they had incurred no actual risk, they should have only peace 
 wages from iSIarch 3d to the completion of the voyage. 
 
 These cases appear to be inconsistent. The first seems to us to rest on sounder 
 principles. The rule involved in it may sometimes work a hardship ; but it is 
 founded on the well-known principle that the contract is not apportionable. 
 
 * Whether wages are due for the whole voyage, has been, and perhaps is, a 
 vexed question ; and it has been decided both ways. In Walton v. The Neptune, 
 1 Pet. Adm. 142; Scott v. The Greenwich, id. 155; Jackson v. Sims, id. 157, 
 Judge Peters decided that they were due for the whole voyage. The last case 
 •was aflSrmed by Mr. Justice Washington, 1 Wash. C. C. 414 ; 1 Pet. Adm. 157, n. 
 See also Johnson v. The Coriolanus, Crabbe, 242. But Carey v. The Kitty, Bee, 
 255, decided by Judge Bee, and Natterstrom v. The Hazard, Bee, 441, decided
 
 CH. XV.] WAGES. 59 
 
 for wages, for any illegal service, is void ; ^ as for serving in the 
 slave-trade, if forbidden by law,^ or in an unauthorized expedition 
 in breach of the neutrality laws.^ So an action will not lie by a 
 pilot for services rendered to a vessel of the enemy.* We should, 
 however, as to these cases, say that if the nature of the service was 
 unknown to the person doing the service, he should recover.^ 
 
 The right of a seaman to look to the owners of the vessel for his 
 wages, does not cease on an abandonment by the owners of the 
 vessel and freight to the underwriters,^ or by a transfer of their 
 interest to third parties in any form." The lien of seamen for their 
 
 by Jiidije Dari.'t of Massachusetts, and Jones v. Smitb, U. S. C. C. Maryland. 4 Hall 
 Am. Law Journal, 276, are the other way. In Hanson ?\ Rowell, 1 Sprague, 117, 
 118, Judge Sprague says : " In this district, the settled practice is to allow wages 
 only to the time of the death." The case of Luscomb v. Prince, 12 Mass. 576, 
 we do not consider as an authority either way. The only question was whether 
 the contract was so far an entirety that misconduct operated as a forfeiture of all 
 the wages, and the court held that the contract was not entire, and said : " There 
 is no doubt that the wages of seamen may be apportioned. If they die during a 
 voyage, their representatives are to receive what is due at the time of their 
 death." Further on, it is said : " In some cases he would share in all the captures 
 made during the cruise, even after his disability ; as in case of sickness or death." 
 See Cutter v. Powell, 6 T. R. 320. 
 
 ^ The Langdon Cheves, 2 IMa^on, 58. In The Helen, Law Rep. 1 Adm. 1, it 
 was held that it was not a municipal offence by the law of nations for a neutral 
 to carry on trade with a blockaded port, and that wages earned on such a voy- 
 age could be recovered. 
 
 2 The St. Jago de Cuba, 9 Wheat. 409 ; The Vanguard, 6 Rob. Adm. 207 ; 
 The Wanderer, U. S. D. C. Mass., Sprague, J. 
 
 " The Leander, Edw. Adm. 35. 
 
 * The Benjamin Franklin, 6 Rob. Adm. 350. 
 
 * The Malta, 2 Hagg. Adm. 158; Sheppard v. Taylor, 5 Pet. 675; Hoyt v. 
 Wild6re, 3 Johns. 518; The Wanderer, U. S. D. C. Mass., Sprague, J. This 
 principle was fully recognized in The St. Jago de Cuba, 9 Wheat. 409, where 
 material-men who had fitted out a vessel, and seamen who had shipped in igno- 
 rance of the intended illegal vo}'age, were held entitled to recover. See also The 
 Mary Ann, Abbott, Adm. 270, where this doctrine was asserted, but the point was 
 not determined, as the court were of the opinion that the crew of a vessel had no 
 right to seize her on suspicion that she was a slaver, and bring her home, although 
 they acted in good faith in so doing. In The Sch. Mary, 1 Sprague, 204, a suit 
 was brought for wages. It appeared that the vessel had sailed under a coasting 
 license, which expired before the trip was made during which the wages in ques- 
 tion were earned. It was held that as there was no evidence that the seamen 
 knew that the license had expired, they were entitled to recover. 
 
 ® Brooks V. Dorr, 2 Mass. 39 ; Brown v. Lull, 2 Sumner, 443. 
 ' Sheppard v. Taylor, 5 Pet. 675.
 
 60 ON THE LAW OF SHIPPhVG. [BOOK I. 
 
 wages attaches to the ship and the freight^aiid all the proceeds of 
 both or either, and follows them into whose hands soever they may 
 go.^ It remains, whether the fund from which it should be paid 
 remains entire, or is broken in upon and in part lost.^ The crew 
 of a neutral vessel, seized and condemned by a prize court for 
 carrying contraband of war, have no lien on the vessel for their 
 wages.^ But if a ship be seized and condemned, and afterwards 
 restored, and an allowance be made to the owner by way of com- 
 pensation for freight, these proceeds represent the ship and the 
 freight, and are liable to this lien as such.* Nor does a sale,^ even 
 
 ' Brown i\ Lull, 2 Sumner, 443. And whore a boiler was put into a steamer 
 by the makers, under an agreement that it should continue their property until 
 paid for, with a right to remove it should any instalments be overdue, ami instal- 
 ments were unpaid and overdue, it was held that the seamen had a lien on the 
 boiler. The Steamer May Queen, 1 Sprague, 588. 
 
 ^ Pitman v. Hooper, 3 Sumner, 50, 286. 
 
 = The Lilla, 2 Sprague, 192. 
 
 * In the case of Brown v. Lull, 2 Sumner, 443, Lull shipped as mariner on 
 board the " Two Betseys," which was taken in the port of Naples and condemned. 
 Under the treaty of indemnity, S 4,000 were allowed to the owners for the brig, and 
 $ 5,640 for freight, as an indemnity for his losses. A clause in the shipping arti- 
 cles stipulated that, if the brig was detained thirty days at any time, the wages 
 should cease during that time. This clause was disregarded by the court. Story, 
 J., laid down the law as follows : " Some principles, applicable to the present case, 
 are now so clear that they need only be stated, although, at a former time, they 
 were subject to many learned doubts. The capture of a neutral ship does not of 
 itself operate as a dissolution of the contract for mariner's wages, but, at most, 
 only as a suspension of the contract. If the ship is restored and perform her 
 voyage, the contract is revived, and the mariner becomes entitled to his wages ; 
 that is, to his full wages for the whole voyage, if he has remained on board and 
 done his duty; or if, being taken out, he has been unable, without any fault of his 
 own, to rejoin the ship. If the ship is condemned by a sentence of condemna- 
 tion, then the contract is dissolved, and the seamen are discharged from any fur- 
 ther duty on board, and they lose their wages, unless there is a subsequent resti- 
 tution of the property, or of its equivalent value, upon an appeal or by treaty, 
 ■with an allowance for freight, in which event their claim for wages reivives. In 
 the case of a restitution in value, the. proceeds represent the ship and freight, and 
 are a substitute therefor. If freight is decreed or allowed for the whole voyage, 
 the mariners are entitled to wages for the whole voyage ; for the decree for freight 
 in such a case includes an allowance of the full wages, and consequently creates 
 
 * Where a vessel is sold, the seaman is entitled to his wages up to the actual 
 sale of the vessel, and not merely to the time of the advertisement of such sale. 
 Lang V. Holbrook, Crabbe, 178.
 
 CH. XV.] WAGES. 61 
 
 if made by order of court under the law of foreign attachment, 
 avoid this lien, but admiralty will still enforce it. For it is now 
 quite settled, that if a vessel is under attachment by process from 
 
 a trust or a lien to that extent thereon, for the benefit of the mariners. If the 
 freight decreed or allowed is for a part of the voyage only, the seamen are ordi- 
 narily entitled only to wages up to the time for which the freight is given, unless 
 under special circumstances ; as where they have remained by the ship, at the 
 special request of the master, to preserve and protect the property of all con- 
 cerned." 
 
 Full wages were given in this case to the time of the mariner's return home, 
 notwithstanding the whole indemnity had not been paid. It is said (on page 
 452), " The next and last objection which has been made is, that the respondents 
 have received certain instalments only of the sums awarded under the treaty, and 
 not full payment. It is admitted that they have received far more thau is suffi- 
 cient to pay all the wages of the seamen, and that is sufficient to dispose of this 
 objection. The wages of seamen attach as a lien to the ship and freight, and 
 their proceeds, into whosesoever hands they may come, as a claim or privilege, 
 having a priority to be satisfied before all other claims. As it has been sometimes 
 expressively said, they are nailed to the last plank of the ship. The ship is a 
 pledge for the payment, while a single fragment remains of the wreck or of its 
 proceeds." See also Vandever v. Tilghman, Crabbc, 6G. 
 
 In Pitman v. Hooper, 3 Sumner, 50, the libellant sued for wages earned on 
 board a ship which was captured by the Danes; and an indemnity of about two 
 thirds tlie value of the ship and cargo was given. The question for the court to 
 decide was whether the wages were to be paid pro rata, in the same proportion 
 as indemnity was received, or fully. The court held that full wages were due, as 
 the seamen had a priority of payment for their wages. 
 
 In Sheppard v. Taylor, 5 Pet. 675, the proceeds of ship and freight, but not of 
 the cargo, were held' liable, although the same had been assigned to assignees 
 prior to"this suit; and it was held that the assignees were entitled to retain from 
 the fund a proportion, pro raio, of the disbursements and expenses which had 
 been actually incurred by them in prosecuting their claim before commissioners 
 under a treaty with the government which seized the vessel, and also a commis- 
 sion of two and a half per cent as a compensation for their services in and about 
 the prosecution. But it was held that the owners of the vessel were not entitled 
 to deduct anything for their services in obtaining the restoration. The court hav- 
 incr ordered the case to be sent back to the circuit court to determine the amount 
 du°e the seamen, the assignees petitioned that they might offi^r in evidence the 
 record of the proceedings in the circuit court, sitting as a court of chancery, m 
 relation to the fund in question, in which the money received by them was, by 
 order of court, paid into court, and by a decree of the court distributed among 
 several claimants. The court granted this petition, reserving to the circuit court 
 the full right and liberty to judge whether the same suits, or either of them, were 
 properly Admissible, or competent as evidence in any matter before the court in 
 the further proceedings in the cause.
 
 62 ON THE LAW OF SHIPPING. [BOOK I. 
 
 a State court, the lien cannot be enforced as long as the vessel re- 
 mains in the custody of the officer cf the State ; but as soon as the 
 attachment is dissolved, or tlie vessel sold under it, admiralty pro- 
 cess may issue, and the vessel is liable in rem notwithstanding the 
 sale.^ But where the seaman is also part-owner and the vessel has 
 been sold on execution against the owners, it is held that the lien 
 of the })art-owner, if he ever had one, no longer exists.^ 
 
 And if a ship be bottomed or hypothecated, the lien of the sea- 
 men for wages prevails over the bond, for the same reason that 
 makes a later bond for bottomry prevail over an earlier ; for the 
 later saved the ship, and the service of the seamen saved it for all 
 who claim under bonds or liens.^ This lien does not depend upon 
 possession, like a common-law lien, but is rather i\\Q privilegmm of 
 the civil law ; nor is it lost when possession is gone ; but it may be 
 lost by such delay as indicates waiver, or amounts to negligence.* 
 
 It is held in England, that the lien upon a foreign vessel for col- 
 lision takes precedence of the lien of the seamen for their wages.^ 
 
 The lien is not lost, because the seaman receives a master's 
 order on the owner or charterer for his wages,*^ or by his taking a 
 note of the master, not negotiable, and putting it in suit ; " nor even 
 by his receiving a negotiable note for his wages, unless he is dis- 
 tinctly told that such will be its effect ; nor even then, unless 
 something is given him by way of security or other advantage or 
 compensation for giving up his lien.^ Nor is a receipt in full any- 
 
 * The Barque Havana, 1 Sprague, 402 ; The Gazelle, 1 Sprague, 378. See 
 also post, Book II., Chap. II., Sect. 3. 
 
 ^ Gallatin v. The Pilot, 2 Wallace, C. C. 592, overruling Foster v. Steam- 
 boat Pilot No. 2, 1 Newb. Adm. 215, 1 Am. Law Reg. 403. 
 
 * See cases ante, Vol. I. p. 160, n. 4. 
 
 * See post. Book III., on Admiralty Practice, eh. 2, § 1. 
 
 ^ The Linda Flor, Swabey, Adm. 309. So held also by Judge Kelly, in 
 the Irish Admiralty. The Duna, 5 Law T. N. s. 217. This is put partly on the 
 ground that the vessel injured has no other remedy, while the seamen can look 
 to the master and owners, and partly on the ground that as the fault of the crew 
 contributed to the collision, it would be inequitable to give them the preference. 
 
 ° The Eastern Star, Ware, 185. But if the seaman is oifered money, and pre- 
 fers a bill of exchange upon the owners, in order to send the money home, he can- 
 not afterward, on the owners becoming bankrupt, proceed against the vessel in 
 rem. The William Money, 2 Hagg. Adm. 136. 
 
 ' The Harriet, 1 Sprague, 33. 
 
 8 The Betsey & Rhoda, Daveis, 1 1 2.
 
 CH. XV.] WAGES. 63 
 
 thing- more than primd facie evidence ; nor does a seal make any 
 diffcjence in admiralty.^ 
 
 By our statutes, fishermen on shares have also a lien for their 
 sharcs.2 And if a vessel is forfeited to the government for a 
 violation of law, the lien for wages of those seamen, who were 
 ignorant of the illegality of the voyage, will be preferred to the 
 claim of the government.^ So it is held that this lien is pos- 
 sessed by seamen on board a letter of marque ; * but not by those 
 on board public ships of war, domestic or foreign.^ It has been 
 doubted, whether a vessel in the service of government as a post- 
 office packet, could be arrested in a suit for wages, on account of 
 the detriment to the public service which would be occasioned 
 thereby.^ We shall consider hereafter who are considered as sea- 
 men, so as to entitle them to this lien. 
 
 An embargo neither destroys nor suspends the right to wages, 
 if the voyage be afterwards completed, or a new one be substituted 
 for it.*^ But if the embargo is never remitted, that is, if it be in 
 fact a seizure or arrest, and if the voyage is broken up by it with- 
 out the fault of the owner or his servants, then it puts a stop to 
 the claim for wages, like any other extraordinary termination of 
 the voyage.^ And if, in the course of the outward voyage, a vessel 
 be seized, and carried out of her way and detained, and afterwards 
 resumes and completes her voyage, and arrives at her port of de- 
 
 ^ See cases ante, p. 41, n. 1. 
 
 * In respect to the lien of mariners generally by statute, see act of 1790, ch. 29, 
 § 6, 1 U. S. Stats, at Large, 133. The act of June 19, 1813, ch. 2, § 2, 3 U. S. 
 Stats, at Large, 2, provides that the vessel shall be liable for six months after the 
 fish caught on board the vessel during the voyage, "shall be delivered to the 
 owner or to his agent for cure, and shall be sold by said owner or agent." 
 
 » The St. Jago de Cuba, 9 Wheat. 409. 
 
 * Ellison V. Ship Bellona, Bee, Adm. 112. 
 
 * De Moitez i'. The South Carolina, Bee, Adm. 422. 
 
 * The Lord Hobart, 2 Dods. 100. The post-ofRce department acquiesced in 
 the jurisdiction, and the point was not therefore determined. 
 
 ' Marshall i'. Montgomery, 2 Dall. 170. See also cases ante, Vol. I p. 220, 
 n. 2. K the seamen are taken out of the ship during the embargo, they are 
 entitled to recover wao-es for the time they are thus absent against their will, as 
 ■well as for the time they are on board. Delamainer v. Winteringham, 4 Camp. 
 186; Beale v. Thompson, 3 Bos & P. 405, 4 East, 546, 1 Dow. 299. 
 
 8 The Saratoga, 2 Gallis. 164.
 
 64 ON THE LAW OF SHIPPING. [BOOK I. 
 
 livery, the seaman is entitled to his wages for the whole time of 
 such detention, although the sliip be lost on the return voyage.^ 
 So if the ship be recaptured ; deducting, however, a proper sum 
 for salvage;^ and if ransom be paid, an allowance or deduction 
 should be made for that.^ But where a ship is captured and re- 
 leased, seamen are not bound to contribute to the expenses except 
 in a case of ransom.* 
 
 Generally, the seamen taken out of a captured ship, which is 
 afterwards released and performs her voyage, have their full 
 wages, deducting, however, what other wages they may have 
 earned.^ But if a neutral seaman be taken from a ship by im- 
 pressment and never rejoin her, he has only j^ro rata wages,^ 
 And it has been held that if a seaman is, in pursuance of an act of 
 the legislature, taken from the ship and sent home as a witness in a 
 
 * Hooper v. Perley, 11 Mass. 545, 548, per Jackson, J. 
 
 " Hart V. The Littlejolm, 1 Pet. Adm. 115; Howland t'. Tho Lavinia, 1 Pet. 
 Adm. 123. In Bergstrom v. Mills, 3 Esp. 36. full wages were allowed, the point 
 as to deduction for salvage not being taken. But in The Friends, 4 Rob. Adm. 
 143, it was held that a recapture which did not restore the seaman to his vessel, 
 did not revive the right to wages which was lost by the capture. This, however, 
 is opposed to the American cases above cited. 
 
 ' Girard v. Ware, Pet. C. C. 142. In Chandler v. Meade, cited in Wiggins v. 
 Ingleton, 2 Ld. Raym. 1211, the ship was captured and ransomed, and the seaman 
 was afterwards impressed. It was held that he Avas not entitled to wages unless 
 an usage to this effect was shown. 
 
 * The Saratoga, 2 Gallis. 164. 
 
 5 Singstrom v. The Hazard, 2 Pet. A(hii. 384 ; Brooks v. Dorr, 2 Mass. 39 ; 
 Wetmore v. Henshaw, 12 Johns. 324 ; Willard v. Dorr, 3 Mason, 91, 161. See the 
 long-contested case of Beale v. Thompson, 3 Bos. & P. 405, 4 East, 546, 1 Dow. 299. 
 
 * In Watson v. The Brig Rose, 1 Pet. Adm. 132, it was decided that a seaman 
 impressed and not permitted to rejoin his ship, could not recover wages for the 
 whole voyage; because the impressment was a personal wrong done to himself; 
 capture being a misfortune to which he is subject as a citizen of a certain coun- 
 try. The difference between impressment and capture of a neutral, is not very 
 clear, unless it be that the whole crew, whether taken out or not, are tied to the fate 
 of a neutral vessel taken in for adjudication. The whole crew, however, may be 
 said to be liable to impressment ; and the fact that one member was selected for 
 this outrage (impressment), differs from the fact that one member is selected for 
 the commission of a scarcely more justifiable act (taking out of a neutral vessel 
 which is sent in for adjudication), in form rather than in substance. This decision 
 seems almost wanting in the indulgence usually shown to seamen who have been 
 separated from the voyage. In Wiggins v. Ingleton, 2 Ld. Raym. 1211, a seaman 
 who bad been impressed recovered but p7-o rata wages.
 
 CH. XV.] WAGES. 65 
 
 criminal proceeding, he is only entitled to wages up to the time 
 when he was so forced to leave, although he was no way in fault.^ 
 So, where a collision takes place between two vessels, and a sea- 
 man, under the impression that his own vessel is sinking, jumps 
 on board the other vessel, and is not afterwards enabled to rejoin 
 his own, he is entitled to wages to the time of his leaving.^ And 
 if his not returning is caused by the fault of his own vessel, he is 
 entitled to wages until his return home.^ 
 
 If a ship sails to several places, but is lost before tlie voyage is 
 fully completed, wages are due to the last port of delivery, or, as 
 we should hold, to her last port of arrival, and also for half the 
 time she lies in that port, the other half being considered as be- 
 longing to the subsequent voyage on which she was lost, and there- 
 fore the wages for that voyage were not earned.* So a port of 
 destination is a port of delivery so far as wages are concerned,^ 
 and they arc earned if the ship goes there in ballast.*^ 
 
 ' Melville v. De Wolf, 4 Ellis & B. 844, 30 Eng. L. & Eq. 323. 
 
 * Hanson v. Rowell, 1 Sprague, 117. 
 ' Per Sprague, J., ibid. 
 
 * The general principle stated in the text has seldom been disputed, and the 
 only question has been, whether wages should be allowed for half the time the 
 vessel was at her last port. In Anonymous, 1 Ld. Raym. 739, it was held, that in 
 case of capture, wages were allowed to the last port of delivery, and half the time 
 of unlading there. And in Jones v. Smith, 4 Hall's Am. Law Journal, 276, wages 
 were allowed to the day which was intermediate between the day when the vessel 
 was unladen and the time of her sailing. But the rule generally followed in this 
 country, is to take half of the time at the last port of delivery, or destination, 
 whether the unloading occupied half the time or not, evidence being considered 
 not to be admissible to show the exact time taken In unloading, for the purpose of 
 rebutting this presumption. Hooper v. Perley, 11 Mass. 545. See also Bordman 
 V. Brig Elizabeth, 1 Pet. Adm. 128, 130; Johnson v. The Lady Walterstorff, 1 
 Pet. Adm. 215; Cranmer v. Gernon, 2 Pet. Adm. 390; Galloway v. Morris, 3 
 Yeates, 445. In 1835, however, Judge Hopkinson considered that these cases 
 were erroneously decided, and held that wages were due only up to the time of 
 the discharge. Bronde v. Haven, Gilpin, 592. See also Smith v. The Stewart, 
 Crabbe, 218. But in 1838, the whole subject was thoroughly reviewed by Mr. 
 Justice Story, and the old rule affirmed. Pitman v. Hooper, 3 Sumner, 28G. 
 
 * In Giles i-. Brig Cynthia, 1 Pet. Adm. 203, a port of destination is said to be 
 a port of delivery when a vessel goes there to obtain a cargo by funds or credits 
 there, or by goods, money, or bills sent in and with the ship. In Marshall v- 
 
 * Giles V. Brig Cynthia, 1 Pet. Adm. 203 ; The Two Catherines, 2 Mason, 319. 
 The vessel in this latter case went from Newport to Gibraltar, there landed a 
 
 VOL. II. 5
 
 G6 ON THE LAW OF SHIPPING. [BOOK I. 
 
 No special contract between the owner and freighter, varying 
 the obligation to pay freight from that implied by the general law, 
 has any effect upon the wages, for these are due whenever freight 
 is or 77ii(/ht be earned. ^ A voyage may, however, be so far an 
 entirety that wages will not be earned until the ship arrives at her 
 final port of destination.^ 
 
 Montgomery, 2 Dall. 1 70, the plaintifl' shipped on a voyage from Philadelphia to 
 Havana, thence to Cadiz, and thence back to Philadelphia. The vessel was 
 detained at Havana for some time by an embargo. A plan being formed to seize 
 New Providence, a proposal was made to the vessels in port to join in the expedi- 
 tion, to which the captain and crew of the vessel in question assented. The 
 vessel was to receive a specified compensation and to be freed from the embargo. 
 She sailed, and New Providence was taken ; she then started for Philadelphia, 
 and was captured on the way. The court held, that New Providence might be 
 considered as a port of delivery, and that the plaintiff was entitled to wages to 
 the arrival at that place. 
 
 cargo and went in ballast to Ivica for salt, and, after taking it on board, sailed for 
 home. It was contended that wages were only due to Gibraltar, on the ground 
 that the outward voyage ended there, but the court held that wages were due to 
 Ivica, and half the time the vessel was there. See also Millott i'. Lovett, Sup. 
 Jud. Ct. Mass., 1800, 2 Dane, Abr. 461. But in Thompson v. Faussat, Pet. C. 
 C. 182, Wasldngton, J., held in a similar case, that wages were not due for the 
 intermediate voyage. 
 
 * Anonymous, 1 Pet. Adm. 191, note; Pitman v. Hooper, 3 Sumner, 50, 286 ; 
 Blanchard v. Bucknam, 3 Greenl. 1. 
 
 ' The Lady Durham, 3 Hagg. Adm. 196. The vessel in this case sailed on a 
 trading voyage from Liverpool to Africa, and back. She arrived off the coast of 
 Africa, bartered away most of her outward cargo, and had nearly all of her home- 
 ward cargo on board, when she was lost. It was held that no wages were due. 
 In Hernaman v. Bawden, 3 Burr. 1844, it was held that a voyage from Barnstaple 
 to Portugal or Spain, taking in a cargo of fish at Newfoundland, was an entire 
 voyage, and that Newfoundland was not a port of delivery, but the loading port 
 of the cargo which was to produce the profit of the voyage. Judge Peters, 
 in Giles i'. Brig Cynthia, 1 Pet. Adm. 203, 205, seems to suppose that this case 
 rests on the ground that the fish were to be caught oif the banks of Newfound- 
 land, " where the ocean and not a port of delivery afforded the prey ; " and that 
 " there had been no delivery, or any contemplated sale or purchase." We are, 
 however, unable to find any thing in the facts of the case, as reported, which 
 shows that the fish were to be caught rather than purchased at Placentia in New- 
 foundland, to which place the case finds that the ship went; and the case seems 
 to turn entirely on the point that there was no port of delivery except in Portugal 
 or Spain. In Anonymous, 1 Pet. Adm. 205, the ship went from the United States 
 to the Northwest coast for furs, destined to Canton. The seamen shipped by the 
 freiglit; that is, they were entitled to a certain portion of the freight earned. 
 This was held to be an entire voyage from the United States to Canton. The
 
 CH. XV.] WAGES. 67 
 
 If the ship be lost on her outward voyage, and part of the freight 
 liave been paid in advance, under such terms that the shippers 
 cannot receive it back, the seamen have not full wages, but in pro- 
 portion to the freight paid.^ 
 
 The effect of stipulations on the part of the seamen, not to 
 demand wages until the arrival of the vessel, we have already con- 
 sidered, — and m(irely state here that the courts pay but little res- 
 pect to them, but allow the seamen, in case the voyage is broken 
 up, to recover wages as if the stipulations had not been inserted. ^ 
 
 A seaman cannot insure his wages,^ nor derive any benefit from 
 the insurance effected by the owners on the ship or freight;^ nor 
 by a recovery of damages for a loss of the ship by collision,^ 
 
 If tlie owner pay advance wages, as is generally the case, they 
 belong to the seamen absolutely, and are lost by the owner, whether 
 any subsequent wages are earned or not.^ But as " freight is the 
 mother of wages," no more wages are earned or due if the ship and 
 cargo are lost in any way before freight is or might be earned, whether 
 this loss occur by capture, collision, fire, wreck, or otherwise.'' 
 
 In case of wreck, or other peril, the seamen are bound to stay 
 by the vessel, and do all that can be done to save her, or her cargo, 
 or as much as can be saved.^ And if enough is saved from the 
 
 vessel was not successful in obtaining a full cargo on the coast, and called at a 
 port on the way to Canton where skins had been left by a vessel not fit to pro- 
 ceed. These were carried on freight to Canton. Held, that the seamen were 
 entitled to a proportion of the whole freight, as well on the furs obtained on the 
 coast as those taken in at the intermediate port. 
 
 1 Anonymous, 2 Show. 282. 
 
 ' See anle, p. 40, n. 3. 
 
 ' The Juliana, 2 Dods. 509 ; Lucena v. Crauford, 5 B. & P. 294 ; Webster v. 
 De Tastet, 7 T. R. 157 ; The Neptune, 1 Hagg. Adm. 239. 
 
 * The Lady Durham, 3 Hagg. Adui. 196; M'Quirk v. Ship Penelope, 2 Pet. 
 Adm. 27G; Icard v. G -ohl, 11 Johns. 279. 
 
 ' Percival v. Hickey, 18 Johns. 257, 290. 
 
 * The Mentor, 4 Mason, 102. 
 
 ' See cases passim, and The Niphon, U. S. C. C. Mass., 13 Law Rep. 266. 
 "We would particularly call the attention of the reader to the learned argument of 
 the counsel fcr the libellants, in this case, in support of the proposition that the 
 maxim that " freight is the mother of wages," had its origin in the common-law 
 courts of England, and is to a great extent disregarded in the decisions of tlie 
 present day. 
 
 * In all the cases in which this subject is alluded to, this rule is laid down. 
 Among the leading cases which assert it, are Relf i-. The Maria, 1 Pet. Adm. 186 ;
 
 68 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ship, or perhaps from the cargo, they are allowed their wages 
 under that name, or as salvage.^ This question, whether seamen 
 are entitled to compensation in the nature of salvage, or as wages, 
 is important in many particulars, and is not one of a mere verbal 
 difference. If compensation is given as wages, the maxim that 
 " freight is the mother of wages " is overridden. If the seamen 
 are entitled as salvors, the well-settled principle that salvors are 
 mere volunteers, persons who owe no duty to the subject saved, is 
 disregarded ; for it is settled that the duty of the seamen to remain 
 by the ship is not at an end on the occurrence of a shipwreck, but 
 that they are bound under the contract to save as much of the 
 
 Taylor v. The Ship Cato, 1 Pet. Adm. 48 ; Clayton v. The Harmony, 1 Pet. 
 Adm. 70 ; Giles v. Brig Cynthia, 2 Pet. Adm. 203 ; Jurgenson v. The Snow 
 Catharina Maria, 2 Pet. Adm. 424; The Saratoga, 2 Gallis. 164; Lewis v. The 
 Elizabeth & Jane, Ware, 41; Pitman v. Hooper, 3 Sumner, 50; The Dawn, 
 Daveis, 121 ; Adams i'. The Brig Sophia, Gilpin, 77; AVood v. The Brigantine 
 Nimrod, Gilpin, 83. 
 
 * In The Two Catherines, 2 Mason, 319, Mr. Justice Story considered the 
 right of compensation to be by way of salvage, and allowed a sum equal to the 
 amount of wages to the time of process, the vessel not having reached her port, 
 but the seamen having been discharged from further duty. See also Cartwell v. 
 Ship John Taylor, 1 Newb. Adm. 341 ; The Niphon, U. S. C. C. Mass., 13 
 Law Rep. 266. This question was considered at length in the case of The Nep- 
 tune, 1 Hagg. Adm. 227, and the right of the mariner to compensation was held 
 to depend on his contract, and not upon salvage, or a quantum meruit. See also 
 per Sprague, J., in The Massasoit, 1 Sprague, 97. In Flaherty v. Doane, U. S. 
 D. C. Mass., Lowell, J., a libel in personam was filed for wages on a cod-fishing 
 voyage. The vessel was lost on the voyage, and the wreck and some of the 
 catchings were sold by the master. It was contended that, owing to the contract 
 between the master and the owners, the latter were not liable for the wages of the 
 crew. Assuming this to be true. Judge Lowell held the owners .liable to the 
 extent of the property saved. It was urged that as the property was not in the 
 district, a suit in rein could not be maintained. Lowell, J., said : " Granting for 
 the purposes of this case that this argument is sound, yet by analogy I may well 
 hold, that if the owners do not choose to bring the goods within the district, they 
 are liable to the extent of the proceeds at the suit of the sailors who had a lien 
 thereon. In salvage causes, this is the well-established doctrine. There will not 
 ordinarily be a personal claim upon the owners unless they had received the 
 property, but in that event they must respond to the salvors in a personal suit in 
 the admiralty, for the value of the goods or so much thereof as the court may 
 decree for the salvage service. Now whether sailors are considered as salvors 
 strictly speaking or not, which has been a much mooted question, I am of opinion 
 that they are so far salvors as to come within this equitable rule."
 
 CH. XV.] WAGES. 69 
 
 vessel as possible. If we term the compensation salvage, then the 
 seamen must aid in preserving the property ; ^ and they are en- 
 titled to compensation from the proceeds of the cargo, as well as 
 from the ship and freight.- Whereas, if the compensation is to be 
 given as wages, then, as the seamen have no claim on the cargo 
 for wages, they are not entitled to compensation, although they 
 save some of it.^ But, on the other hand, they are entitled to 
 compensation as wages if any part of the ship and freight is pre- 
 served, although they took no part in the preservation, if they were 
 merely not requested to do anything. In other words, the con- 
 tract of the seamen is not at an end, and if the owner chooses to 
 employ other persons to save the wreck, and does not call on the 
 seamen, their lien still continues ;* and such would seem to be the 
 case where the seamen are so much disabled by the disaster that 
 they cannot render any assistance, and the wreck is saved by third 
 parties.^ On the whole, we prefer the construction which makes 
 
 * Adams v. The Brig Sophia, Gilpin, 77. It was held in this case not to be 
 sufficient to sue on the shipping articles, but the court said that two things must 
 occur, the saving of the property and its preservation by the services and exer- 
 tions of the seamen ; and that if the libel state"^ the loss, it must go further and 
 state the facts which give the right to recover notwithstanding the loss. It was 
 also said to be sufficient if nothing was said in the libel concerning the loss. 
 
 ^ Jurgenson v. The Snow Catharina Maria, 2 Pet. Adm. 424 ; The Dawn, 
 Daveis, 121 ; Taylor i'. The Ship Cato, 1 Tet. Adm. 48; Brackett v. The Her- 
 cules, Gilpin, 184; Dunnett v. Tomhagen, 3 Johns. 154. In The Dawn, supra, 
 it was held that where the seamen performed such a service in a foreign country, 
 they were entitled to a sum sufficient to take them home. 
 
 ' Dunnett v. Tomhagen, 3 Johns. 154 ; The Lady Durham, 3 Hagg. Adm. 196. 
 
 * The Massasoit, 1 Sprague, 97. The vessel in this case was wrecked at the 
 mouth of Boston Harbor. The crew remained on the wreck till the next day, 
 when they were taken off by a life-boat. The owners sent down an agent with a 
 steamboat and men, who saved all of the wreck that was saved, the crew not 
 being called upon to do any work, or furnished with any means of subsistence, 
 and part of the time they were physically incapable of rendering any assistance. 
 It was held that wages were due. See also Bruce v. The Tackle, etc., of the 
 Steamboat America, 1 Newb. Adm. 195. 
 
 * See The Massasoit, cited in note supra. In The Reliance, 2 W. Rob. 119, it 
 does not appear why the crew did not assist in saving the proceeds of the wreck, 
 and the case seems to be decided on the broad ground that the crew have a lien 
 on the proceeds of a wreck if saved by third persons. But in Lewis v. The 
 Elizabeth & Jane, Ware, 41, where wages are considered to rest on principles of 
 salvage, it was held that where a vessel was bond Jide deserted at sea, and after-
 
 70 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the right of compensation an exception to the general rule that 
 "freight is' the mother of wages," to that which enables them to 
 sue as salvors. It is, however, clear that if the contract of the 
 seamen is at an end, they may sue as salvors. This subject we 
 shall consider hereafter. 
 
 • The maxim (that freight is the mother of wages) is also subject 
 to the exception that if no freight is earned because the voyage is 
 broken up on account of the fraud or wrongful act on the part of the 
 master or owner, wages are still due.^ If a vessel is let on shares 
 to the master, the owners are not liable for the wages of the seamen,^ 
 
 wards saved by third parties, the seamen were not entitled to their wages. See 
 also The Niphon, U. S. C. C. Mass., 13 Law Rep. 266. 
 
 ^ Hoyt V. Wildfire, 3 Johns. 518, where the vessel was seized for carrying con- 
 traband goods. See also 1 Pet. Adm. 192, note; The Neptune, 1 Ilagg. Adra. 
 227, 232. Or where the voyage is broken up by a seizure for a debt of the 
 owner of the vessel. Woolf v. Brig Oder, 2 Pet. Adm. 2G1. In Van Beuren v. 
 Wilson, 9 Cow. 158, the vessel was seized by civil process from the admiralty 
 court in a foreign country, for the purpose of trying the right of property to the 
 vessel. She was detained several months and then ordered to be restored. This 
 was prevented by a mob, the captain was killed in the affray, and the vessel 
 having become very much deteriorated by decay, was abandoned to the under- 
 writers. The court held that either wages were due, or damages to the amount 
 of his wages, on the ground that a seizure on civil process must be at the risk of 
 the owners, and that they ought to have released the vessel and given security for 
 its return. In The Saratoga, 2 Gallis. 1G4, 175, Story, J., said: "If the voyage 
 or freight be lost by the negligence, fraud, or misconduct of the owner or master, 
 or voluntarily abandoned by them ; if the owner have contracted for freight upon 
 terras or contingencies differing from the general rules of maritime law ; or if he 
 have chartered his ship to take a freight at a foreign port, and none is to be 
 earned on the outward voyage, in all these cases the mariners are entitled to 
 wages, notwithstanding no freight has accrued." In Oxnard v. Dean, 10 Mass. 
 143, it was held that where a vessel on her homeward voyage was seized and con- 
 demned abroad for the breach of the revenue laws of a foreign country, the sea- 
 men, although not in fault, were not entitled to wages after the seizure; and it 
 was stated, although the point was not decided, that a majority of the court were 
 of the opinion that no wages were due after the completion of the outward voy- 
 age. See note to this case by Mr. Rand, in his edition, p. 151. This case does 
 not seem to be in accordance with the cases cited ante, p. 59, n. 5, to which we 
 refer, and we are inclined to doubt its correctness. 
 
 = McCabe v. Doe, 2 E. D. Smith, 64 ; Giles v. Vigoreux, 35 Maine, 300. In 
 Skolfield v. Potter, Daveis, 392, there were peculiar circumstances which took the 
 case out of the general rule. See also Aspinwall v. Bartlett, 8 Mass. 483; Webb 
 V. Peirce, 1 Curtis, C. C. 104. In Harding v. Souther, 12 Cush. 307, the owners 
 of a vessel engaged in the mackerel fishery were held liable for the wages of the
 
 CH. XV.] WAGES. 71 
 
 but the vessel is liable in rem} So if the vessel is chart- 
 ered.2 
 
 If what is saved from a wrecked vessel is brought home to the 
 United States in another vessel, with the master and seamen, the 
 ship bringing it home has a lien on it for the freight payable for 
 bringing it, but not for the passage-money of the seamen .^ 
 
 It has been said at common law,* that if the ship be not sea- 
 worthy at the outset of the voyage, and be abandoned for that 
 reason before freight is earned, no wages are due. But this rule 
 would subject the seaman to lose wages for his services for no fault 
 of his own, but for that which generally is in fact the fault of the 
 owner, and may almost always be supposed to be so, and which 
 the seamen could not by labor or care have prevented. And we 
 think that it would not now be considered as law in admiralty, if 
 anywhere.^ 
 
 It is held that the owner of a slave may sue for his wages ; ^ 
 and so may the master of an apprentice.' But if the slave 
 escapes during the voyage, no responsibility for indemnity rests 
 on master, owner, or crew, unless they assisted his flight and 
 
 escape.^ 
 
 As to the question how far and when seamen may be witnesses 
 for each other, the prevailing, and we think the reasonable rule is, 
 in admiralty as at common law, that seamen may be witnesses for 
 
 cook, although by the usage the cook's wages are deducted from the portion of 
 the proceeds of the voyage apportioned to the master and crew. 
 
 1 The Sloop Canton, 1 Sprague, 43 7. 
 
 « The Sch. Highlander, 1 Sprague, 510. 
 
 » Brackett v. The Hercules, Gilpin, 184. 
 
 * Eaken v. Thorn, 5 Esp. 6, See the remarks of Kent, C J., on this case, in 
 
 Hoyt V. Wildfire, 3 Johns. 518. ■ ■ •, v , 
 
 " Hindman v. Shaw, 2 Pet. Adm. 264, 266, supports the general principle, that, 
 the vova-e being broken up by the vessel not being seaworthy, the seamen are to 
 have an allowance. But in this case, the seaman refused to proceed in another 
 suitable ship, which had been provided. The court held this tantamount to de- 
 sertion. 
 
 ' Stone V. Godet, cited Bee, 95. 
 
 ' Eades v. Vandeput, 5 East, 39, note. 
 
 8 Carey v. Schooner Kitty, Bee, 255. In Emerson v. Rowland, 1 Mason, 45, 
 it was held that if a slave was illegally discharged abroad, his master might 
 recover wages up to the time when he might have returned to the United States. 
 The slave did not return, but no claim was made for his value.
 
 72 ON THE LAW OF SHIPPING. [BOOK I. 
 
 each other in suits for wages, although they may have a common 
 interest in sustaining each other's claims, and defeating the 
 defences made against them.^ It is always in the power of 
 courts of admiralty at least to determine what weight shall be 
 given to their testimony, and to make due allowance for all the 
 circumstances which weaken its value. But the master has been 
 held (on what seems to us questionable reasons) to be incompetent 
 as a witness for the owner, in a suit against him or the ship for 
 wages, because of his own direct responsibility and interest." How- 
 
 ' As the contract of seamen is several and not joint, they may be witnesses for 
 each other where they are interested in the same question, if they are not directly 
 interested in the event of the suit. Spurr v. Pearson, 1 Mason, 104; Hoyt v. 
 WildBre, 3 Johns. 518; Powell v. The Betsey, U. S. D. C. Penn., 2 Browne, 
 335, 350 ; The Cypress, Blatchf. & H. Adm. 83. Such evidence is, however, 
 received with great caution and scrutiny. The Steamboat Swallow, Olcott, Adra. 
 4; Graham v. Hoskins, id. 224. It is said in a case in Pennsylvania that where 
 the question is the loss of the ship, embezzlement, equally affecting the whole 
 crew, negligence, misfeasance or malfeasance to which all must contribute in 
 damages, one seaman cannot be a witness for another. Thompson v. Ship Phila- 
 delphia, 1 Pet. Adra. 210. In a simple case of embezzlement, however, where 
 the seamen not in fault are not bound to contribute, this rule does not apply. 
 Spurr V. Pearson, 1 Mason, 104. The general rule is the same both at common 
 law and in admiralty, respecting the competency of witnesses. The Schooner 
 Boston, 1 Sumner, 328, 343. 
 
 * Judge Peters constantly refused to admit the captain to testify in suits 
 for seamen's wages. Malone v. The Mary, 1 Pet. Adm. 139, 141; Jones v. The 
 Brig Phceni.x, id. 201 ; Atkyns v. Burrows, id. 244. The reason he gave was his 
 interest in the result of the suit, he being responsible for the mariner's wages. 
 This appears to have been the practice iu Massachusetts, Dunlap's Adm. Practice, 
 245. But if the mariners have obtained their wages, even by the help of his 
 testimony, from either the owners or the ship, that extinguishes theh' claim ; and 
 neither the ship nor the owners can have any claim against him, for he is not 
 liable for seamen's wages except to seamen, and if they have got them from some 
 one else, they cannot get them from him. And if it be said that he has an interest 
 in preventing their recovering against the owners, because, if their judgment is 
 unsatisfied they may turn on him, this seems to us too remote an interest to dis- 
 qualify the master. This seems to be the view taken of it in The Lady Ann, 
 Edw, Adm. 235, where Sir Win. Scott says : " The mariner has his 'election 
 whether he will proceed against the owners, the master, or the ship ; and in this 
 case, the proceedings being instituted against the owners, the master has no imme- 
 diate interest in the suit, and therefore is not an incompetent witness by any rule 
 with which I am acquainted." In New York the master is admitted as a witness 
 on behalf of the owners. The Steamboat Swallow, Olcott, Adm. 4; The Steam- 
 boat Hudson, id. 396. In Calloway v. Morris, 3 Yeates, 445, the point was only
 
 CH. XV.] WAGES. 73 
 
 ever tins may be, it -would seem clear that where he is a party to 
 the suit, or where he has intervened, put in a claim, and filed an 
 answer to the libel, he is incompetent.^ So he cannot testify to 
 any matter of defence which originates in his own acts, for which 
 he is himself responsible.^ The master is, however, a competent 
 witness on belialf of the seamen.^ And charges made against sea- 
 men on the shipping papers require to be verified by the suppletory 
 oath of the master.* Interest does not now, however, disqualify 
 a witness.^ 
 
 On a whaling voyage the owners of the vessel have no right to 
 charge the seamen with commissions for disposing of the oil and 
 bone, and settling the voyage, where this duty is assumed by the 
 owners in the shipping contract.^ Nor can the seamen be charged 
 with money expended for labor in preparing the vessel for sea, 
 unless it be shown that the seamen ought to have performed it, 
 and being called on neglected to do so." Nor are they liable for 
 money paid an agent in the nature of a bounty for hiring them.^ 
 And where, before sailing on a whaling voyage, a seaman obtained 
 certain outfits on credit, and gave to the outfitter an order on the 
 owner, which the latter accepted and paid, and besides the personal 
 liability of the seaman, held the proceeds of the voyage as security, 
 and charged insurance on the amount paid, it was held that such 
 
 raised in the argument. It was not decided. But a release from the owners was 
 required. A release was procured from one, which the court ruled to be suffi- 
 cient, declaring the point open to further discussion. In Arnold v. Anderson, 2 
 Yeates, 93, wliich was a suit for damages for the unskilful stowage of the cargo, 
 the captain was admitted, on a release being given ; the mate and mariners were 
 admitted without any release. 
 
 * The E.\change, Blatchf. & H. Adm. 366. 
 
 * The William Harris, Ware, 367, 371, It was also held in this case that a 
 master is not a proper person to prove the sufficiency of a medicine chest. The 
 master under the general rule stated in the text is not competent to prove that a 
 discharge of a seaman was justifiable. Robinett ik The Ship Exeter, 2 Hob, 
 Adm. 261 ; Atkyns v. Burrows, 1 Pet. Adm. 244. In The Hope, 2 Gallis. 48, it 
 was held that the master is not a competent witness in case of an information in 
 rem for a forfeiture occasioned by his alleged misconduct. 
 
 » The Trial, Blatchf. & H. Adm. 94. 
 
 * The David Pratt, Ware, 495. 
 
 * See post, Book III., Chap. XL, Sect. 2. 
 
 * Lovrein v. Thompson, 1 Sprague, 355 ; Hazard v. Howland, 2 Sprague, G8. 
 ^ Lovrein v. Thompson, 1 Sprague, 355. 
 
 ' Lovrein v. Thompson, 1 Sprague, 355.
 
 74 ON THE LAW OF SHIPPING. [BOOK I. 
 
 a charge was not proper.^ And the seamen are not liable for a 
 charge of two and a half per cent guarantee commission on sales 
 of oil, or for tlie cliarges for fitting and discharging the ship.^ And 
 if a seaman on a whaling voyage is discharged abroad, he is en- 
 titled to a settlement at home prices, and is not obliged to take it 
 at consular prices.^ The seamen are entitled to a settlement on a 
 cash and not on a credit basis. If, therefore, the oil is sold on credit, 
 the owner is not obliged to account to them for this, but only for 
 the sum it would have brought if sold for cash.* By usage the 
 owner cannot charge the seamen for the casks.^ 
 
 If a part-owner sue for his lay as master, the other owners are 
 entitled to deduct payments made to him and to his wife, wlien done 
 with his consent, and are not obliged to wait until he has a settle- 
 ment with them of his account as part-owner.^ 
 
 If a seaman on a whaling voyage gives an order for the balance 
 that may be due him on settlement of his voyage, intended as 
 security for future advances l)y the payee, this constitutes an as- 
 signment of his wages although it is not accepted by the person on 
 whom it is drawn. It is also irre vocal )le if advances are made 
 upon it, and the assignor cannot maintain an action against the 
 owners of the vessel for his wages.'^ 
 
 The subject of forfeiture of wages by desertion or other gross 
 misconduct, will be considered hereafter.^ 
 
 The legal tender act has given rise to several important and 
 difficult questions. We give in our note the adjudications upon 
 this subject relating to seamen's wages. ^ 
 
 ^ Lovrein v. Thompson, 1 Sprague, 355. 
 
 * Bates V. Seabury, 1 Sprague, 433. 
 ' Hathaway i'. Jones, 2 Sprague, 56. 
 
 * Hazard v. Howland, 2 Sprague, 68. 
 ' Hazard v. Howland, 2 Sprague, 68. 
 
 * Hazard v. Howland, 2 Sprague, 68, 
 " Tripp V. Brownell, 12 Cash. 376. 
 
 ^ See post, p. 93. 
 
 ^ In The Ship Rochambeau, U. S. D. C. Maine, Ware, J., 26 Law Rep. 
 564, the libellant shipped at St. John, N. B., for a voyage to London and back, 
 not to exceed nine months in time, at the rate of twenty-five dollars a month, in 
 New Brunswick currency. This voyage was made before the nine months 
 expired, and the libellant continued in the vessel without any new agreement, 
 and went on another voyage to London, which was to terminate in the United 
 States. Payments were made from time to time during the voyage in specie. 
 Held, that on the termination of the voyage in the United States the libellant
 
 CH. XV.] PROVISIONS. 75 
 
 SECTION IV. 
 OF PROVISIONS. 
 
 Provisions of due quality and quantity are to be furnished by 
 the owner under the general principles of law as applied to this 
 particular contract.^ It is also provided by statute in this country 
 that every ship or vessel belonging to a citizen of the United States, 
 
 •was entitled to recover the balance due in New Brunswick dollars, and a decree 
 •was entered for such a sum in United States currency as would make the pay- 
 ment e(iual to a payment in specie. 
 
 In The Quintero, U. S. D. C, Mass., 1866, Lowell, J., seamen shipped at Val- 
 paraiso, Chili, for a voyage to Boston. They were to be paid in dollars. Loioell, 
 J., said : The contract was made in Chili, and an inference is said to arise from 
 that circumstance that the crew were to be paid in Chilian dollars. But the 
 contract is merely for dollars, and upon the aspect the case has assumed it is for 
 dollars payable here, and the presumption must be that the place of performance 
 of the contract is to be looked to in this particular. And whether the decree be 
 strictly for wages or for damages in the nature of wages, it should be made up in 
 our money." 
 
 In The Nonpareil, Brow. & L. Adm. 355, a seaman signed articles at New 
 York to serve on board a British ship, on a voyage to terminate either in the 
 United States or in the United Kingdom. The rate of wages was expressed in 
 dollars. The voyage was terminated in Liverpool. At the time of making the 
 contract the exchange value of the paper dollar was 2s. 8|(/. It afterwards de- 
 preciated in value. The shipowners contended that they were only liable for 
 the value at the time the contract was made. But upon evidence that for twenty- 
 five years seamen discharged from American ships in London or Liverpool, had 
 received their wages at the rate of 4.s. Id. a dollar, the court held that the parties.con- 
 tracted according to this usage, and the value of the dollar was held to be 4s. 2c?. 
 
 In The Annie Sherwood, before Dr. Lushington, in 1865, 12 Law Times, N. 8. 
 582, the voyage was from New York to Cuba, thence to Liverpool and back to 
 Cuba or the West Indies, and thence to a port of discharge in the United States, 
 the time not to exceed eight months. The articles provided that the seamen 
 should be paid so many dollars a month, and contained a clause that the wages 
 should be paid in United States currency or its equivalent. At the expiration of 
 the eight months the vessel was in Liverpool. The court held that the seamen 
 were entitled to have the dollar reckoned at 4s. 2d. The court was not satisfied 
 that the condition in regard to United States currency had been explained to the 
 men, and said, even if it had been, it was in clear violation of the custom to pay 
 4s. 2d., and would not receive any countenance or support. 
 
 * Tliis has been the custom among maritime nations from the earliest times. 
 Pothier on Maritime Contracts, n. 215 (Cushing's ed.) 131 ; Consolato del Mare, 
 c. 100. See also 1 Pardes. 335, 381,483; 2 id. 510; The Madonna D'ldra, 1 
 Dods. 37 ; Dixon v. The Cyrus, 2 Pet. Adm. 407, 411.
 
 76 ON THE LAW OF SHIPPING. [BOOK I. 
 
 bound on a voyage across the Atlantic Ocean,^ shall, at the time of 
 leaving the last port from which she sails,^ have on board, well 
 secured under deck, at least sixty gallons of water, one hundred 
 pounds of salted flesh meat, and one hundred pounds of whole- 
 some ship-bread for every person on board such vessel, besides 
 such otlier provisions as may be put on board by the master or 
 passengers, and in like proportion for shorter or longer voyages, 
 and in case the crew of any vessel which shall not have been so 
 provided shall be put on short allowance in water, flesh, or bread, 
 during the voyage, the master or owner shall pay to each of the 
 crew one day's wages beyond the wages agreed on, for every day 
 they are so put on short allowance, to be recovered in the same 
 manner as their stipulated wagcs.^ 
 
 Tlic seamen are also entitled, in addition to the statute allowance, 
 to such subsistence as is usually furnished on voyages similar to 
 that tlicy are engaged in.* 
 
 If, however, the necessity of short allowance springs from a 
 peril of the sea, or any accident of the voyage, or the delivery of a 
 part of the provisions to another vessel in distress, the extra wages 
 are not given. -^ 
 
 * Act of 1790, c. 29, § 9, 1 U. S. Stats, at Large, 131, 135. In Gardner v. The 
 Ship New Jersey, iPet. Adm. 223, the voyage was an entire one from Philadel- 
 phia to Canton, with liberty to go to other intermediate ports, and back to 
 Philadelphia. It was contended that as some of the mariners shipped at foreign 
 ports, they did not come within the statute. But the objection was overruled. 
 
 * See The Mary Paulina, 1 Sprague, 45. 
 
 * Under this statute it has been held that if less than the statute quantity of all 
 the three articles be put on board, and there be a short allowance of all, triple 
 extra wages are to be given for each day. Collins v. Wheeler, 1 Sprague, 188. 
 
 * Foster v. Sampson, 1 Sprague, 182 ; Collins v. Wheeler, 1 Sprague, 188. 
 
 * Though we are not aware of any case where this point has been expressly 
 decided, yet it follows as a necessary deduction from the fact, that to enable the 
 seaman to recover the extra wages, not only must he be put on short allowance, but 
 it must be shown also that the vessel sailed without having on board the stores 
 prescribed in the act. The Ship Elizabeth v. Rickers, 2 Paine, C. C. 201 ; Fer- 
 rara u. The Barque Talent, Crabbe, 216 ; The Bark Childe Harold, Olcott, Adm. 
 275. If the vessel sailed with the requisite quantity on board In good condition, 
 but part was spoiled afterwards, so that the crew were put on short allowance, 
 their remedy is by an action for the special damage done them, but they cannot 
 claim extra wages. The Bark Childe Harold, Olcott, Adm. 275. If it is clearly 
 proved that the crew were put upon short allowance, the burden is on the ship- 
 owner to show that the vessel had the requisite provisions on board at the time of
 
 CH. XV.] PROVISIONS. 
 
 77 
 
 It has been held that a deficiency in one kind of provisions is not 
 compensated by an abundance in another ; as a deficiency in bread 
 by an excess of beef; i nor is it any excuse for a deficiency in bread 
 that flour is given ; - but it is clear that the master must have in 
 every port a certain discretion in supplying wholesome and abun- ' 
 dant food, of such kinds as can be most economically procured, if 
 those specified in the act cannot be obtained by reasonable exer 
 tions.3 But it is doubtful if it is any excuse under the statute that 
 the article in which the deficiency occurred could not be pro- 
 curcd.-« The master must see to the expenditure of the provisions ; 
 he should guard against waste ; and putting the crew on allow- 
 ance is by no means the same thing as putting them on short 
 allowance.^ 
 
 sailing. Pichl V. Balchcn, Olcotf, Adni. 24, 31. In the Bark Chllde Harold, 
 Olcott, Adm. 275, 27y, it was contended that the same rule applied where the 
 libelhint showed that bread of a bad and unwholesome quality had been served 
 out to them. But the court held that the rule ought not to be extended to re- 
 quire the owner to give evidence of the quantity and quality of provisions stored 
 on board, when the testimony of the libellants showed that there was an abundant 
 supply in the ship, and only accused it of being unwholesome in quality when 
 shipped. 
 
 ' Tiie Mary Paulina, 1 Sprague, 45 ; Coleman v. Brig Harriet, Bee, Adm. 80. 
 In this latter case the captain left port with only ninety pounds of bread per man 
 instead of one hundred, but there was a great overplus of meat and water. It 
 was held that the seamen should receive one third of the amount of wa"-es con- 
 tracted for over and above their common wages. There were some special 
 reasons, perhaps, in this case, which led the court to give only one third of the 
 entire wages, but the rule is that althou<rh there be a deficiency in one kind of 
 food, the entire double wages are due, and not merely one third. The Mary 
 Paulina, 1 Sprague, 45. 
 
 ' Foster v. Sampson, 1 Sprague, 182. 
 
 ' Mariners v. Ship Washington, 1 Pet. Adm. 219. But in such a case the arti- 
 cles substituted must be a full equivalent both in quantity and quality for those 
 required by law. The Mary, Ware, 454. 
 
 * This was held a defence in Mariners v. Ship Washington, 1 Pet. Adm. 219. 
 But not in Coleman t-. Brig Harriet, Bee, Adm. 80. See also Foster v. Sampson, 
 1 Sprague, 182. 
 
 * McDonald v. Ship Cabot, 1 Newb. Adm. 348. 'What is a proper allowance 
 is to be determined by the navy ration. Mariners v. Ship Washington, 1 Pet. 
 Adm. 219 ; Tlie IMary, Ware, 353, 460; The Mary Paulina, 1 Sprague, 45; Ship 
 Elizabetii v. Rickers, 2 Paine, C C. 291, 288. In this case Mr. Justice Thompson 
 said : " To subject the master or owners to the extra wages, the crew must be put 
 upon short allowance ; by which I should understand that there must be some
 
 ON THE LAW OF Snil'PIXG. [BOOK I. 
 
 SECTION V. 
 OF THE SEAWORTHINESS OF THE SHIP. 
 
 So, too, the owner is bound to provide a seaworthy ship ; ^ and 
 our statutes provide the means of lawfully ascertaining her con- 
 dition, on the complaint of the mate and a majority of the seamen, 
 by a regular survey, at home or abroad.- Tlic third section of 
 
 order or command to that effect given, or some gross negligence in the master. 
 An accidental or unintentional deficiency in weight, would not subject the master 
 or owner to the penalty." If extra wages are claimed, the answer must set forth 
 precisely whether the vessel shipped the quantity and quality of provisions re- 
 quired by the statute. The Elizabeth Frith, 1 Blatchf & II. Adm. 195. The 
 navy ration is fi.\ed by Acts of 1812, c. 2G7, 5 U. S. Stats, at Large, 546. 
 
 ' In Couch V. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77, an action was 
 brought by a seaman to recover damages for injuries sustained in consequence of 
 the vessel leaving port in an unseaworthy condition. There was no allegation that 
 the owners knew the vessel was unseaworthy. On demurrer the court held that 
 the plaintiff could not recover, as there was no implied warranty on tlie jiart of 
 the owners that the ship should be seaworthy. This decision is clearly repug- 
 nant to the principles of the American authorities on this subject, independent of 
 statute provisions. In the case of Dixon v. Ship Cyrus, 2 Pet. Adm. 407, 411, 
 decided in 1789, it was held that both law and reason implied that at the com- 
 mencement of the voyage the vessel should be seaworthy. See also Rice v. 
 Kitty, id. 420. In the case of The Ship Moslem, Olcott, Adm. 289, the vessel 
 put into Cape Town in a leaky condition. The libellants shipped there for the 
 home voyage to New York. The condition of the vessel was known to them, and 
 they shipped with the express notice that their services would be required in 
 pumping out the vessel on her voyage. Yet it was held that if the vessel was 
 actually unseaworthy when she sailed, that is, if she was unfit for the voyage, the 
 libellants were not bound by their contract, and could rightfully refuse to continue 
 their voyage, and compel the master to return to port. In Eaken v. Thorn, 5 
 Esp. 6, it was held that where the ship sailed in an unseaworthy condition, and in 
 consequence thereof the voyage was afterwards abandoned, no freight being 
 earned, the seamen were not entitled to their wages. This case was doubted by 
 Kent, C. J., in lioyt v. Wildfire, 3 Johns. 518. As the voyage was lost by the 
 default of the owner in sending the vessel to sea in such a condition, it seems clear 
 that the wages should have been paid. See Hindman v. Shaw, 2 Pet. Adm. 264, 
 266. 
 
 = Act of July 20, 1790, c. 29, § 3, 1 U. S. Stats, at Large, 132 ; Act of July 20, 
 1840, c. 48, §§ 12, 13, 14, 5 U. S. Stats, at Large, 396. The former of these acts 
 provides that if the mate or first officer under the captain, and a majority of the 
 crew of any vessel bound on a voyage to a foreign port, shall, before the vessel 
 has left the land, require the seaworthiness of the vessel to be inquired into, the
 
 CH. XV.] SEAWORTHINESS OF THE SHIP. 79 
 
 the statute of 1794, provides that the master shall pay the costs 
 of the survey in the first instance, and if the complaint appears 
 to have been without foundation, the costs and a reasonable sum 
 for the detention shall be paid out of the wages of the crew. But 
 it has been held that if there was reasonable cause for the survey, 
 the owners cannot charge the expense to the seamen.^ Seamen, 
 after shipping, often refuse to proceed on the voyage ; and if then 
 arrested for the mutiny, the condition of the vessel, if that be 
 their excuse, is inquired into by the court ; and if she is found 
 to be unseaworthy, their punishment is reduced and mitigated 
 accordingly .2 
 
 master sliall stop at the nearest port for the purpose of having such inquiry made. 
 On tlie construction of this act, Ware, J., remarked in the case of The William 
 Harris, Ware, 3C7, 373, that the reason of the law applied as strongly to the case 
 of a vessel departing from a foreign port on her return, as leaving her home port 
 on a foreign voyage. This is now settled by the statute of 1840. By this act the 
 consul, or commercial agent at the foreign port, is directed, on complaint being 
 made in writing by any officer and a majority of the crew, to appoint two persons 
 to inspect the vessel, etc. By the Act of 1850, c. 27, § 6, 9 U. S. Stats, at I-^arge, 
 441, the Act of 1840 is so far amended, as to require the complaint to be signed, 
 by the first, or the second and third officers, and a majority of the crew. If the 
 crew, instead of availing themselves of their statute remedy, suffer the owner to 
 repair the vessel of his own accord, and he employs an agent who pronounces her 
 Beawortliy, they cannot refuse to proceed on the ground that the repairs are 
 insufficient, if they are not so in fact. Porter v. Andrews, 9 Johns. 350. 
 
 ' The Williani Harris, Ware, 367. The statute of 1840 provides that the 
 expenses shall be deilucted from the wages of the seamen, on the inspectors certi- 
 fying that the complaint was made without good and sufficient cause. 
 
 * United States v. Nye, 2 Curtis, C. C. 225. Mr. Justice Curtis in this case 
 said : " I think the correct rule is, that after the men have rendered themselves 
 on board," pursuant to their contract, and before the voyage is begun, they may 
 lawfully refuse to go to sea in the vessel, if they have reasonable cause to believe, 
 and do believe, the vessel to be unseaworthy. But the presumption is that the 
 vessel was seaworthy ; and the seamen must prove that they acted in good faith, 
 and upon reasonable grounds of belief that the ship was not in a fit condition to 
 go to sea, by reason of unseaworthiness. If they prove this, they are justified in 
 their refusal, and are not guilty of any offence." See also United States v. Staly, 
 1 W'oodb. & M. 338 ; Dixon v. The Ship Cyrus, 2 Pet. Adm. 407. So unsea- 
 worthiness is a sufficient defence to the charge of endeavoring to commit a revolt 
 by compelling the master to return to port. United States v. Ashton, 2 Sumner, 
 13. See also The William Harris, Ware, 367. In The United States v. Givings, 
 1 Sprague, 75, and in The Hibernia, id. 78, it was held that if seamen believe that 
 a vessel is unseaworthy, and ask for a survey, they are not bound to go to sea in 
 her till such request is granted, although the jury should incline to think that the
 
 80 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION VI. 
 
 OF THE CARE OF SEAMEN IN SICKNESS. 
 
 Sickness is provided for by statute, so far as to require that 
 every ship or vessel, belonging to a citizen of the United States, 
 of the burden of one hundred and fifty tons or upwards, navi- 
 gated by ten or more persons in the whole, and bound on a voyage 
 without the limits of the United States, sliall be provided with a 
 chest of medicines, put up by some apothecary of known reputa- 
 tion, and accompanied by directions for administering the same ; 
 and the medicines shall be examined by the same or some other 
 apothecary, once at least in every year, and supplied with fresh 
 medicines in the place of such as shall have been used or spoiled ; 
 and in default of having such medicine chest so provided and kept 
 for use, the commander of such vessel shall provide and pay for 
 all such advice, medicine, or attendance of physicians as any of 
 the crew shall stand in need of in case of sickness, at every place 
 where the vessel may touch or trade during the voyage, witliout 
 any deduction from the wages of such sick seaman.^ 
 
 This act has been extended to vessels of seventy-five tons, navi- 
 gated by six or more persons in the whole, bound from the United 
 States to any port in the West Indies.^ By other statutes the 
 master may deduct twenty cents a month from every seaman's 
 wages, to make up a fund for the support of marine hospitals, in 
 which every sailor may have medical treatment.^ There is, how- 
 vessel was in fact seaworthy ; and that if the masts are rotten and unfit for the voyage, 
 the crew are not bound to go to sea, although the master makes a verbal promise 
 that he will keep in certain latitudes and carry certain sail, for which the masts 
 are sufficient. 
 
 ' Act of 1790, c. 29, § 8, 1 U. S. Stats, at Large, 134. 
 
 * Act of 1805, c. 28, 2 U. S. Stats, at Large, 330. 
 
 * Act of 1798, c. 77, 1 U. S. Stats, at Large, 605; Act gf 1799, c. 36, 1 U. S. 
 Stats, at Large, 729; Act of 1802, c. 51, 2 U. S. Stats, at Large, 192; Act of 
 1811, c. 26, 2 U. S. Stats, at Large, 650; Act of 1843, c. 49, 5 U. S. Stats, at 
 Large, 602; Act of 1846, c. 60, 9 U. S. Stats, at Large, 38; Act of 1864, 
 c. 70, 13 U. S. Stats, at Large, 61. The Act of 1802, § 3, extends a similar 
 provision to the case of boats, rafts, or flats, descending the Mississippi to 
 New Orleans. In Reed v. Canfield, 1 Sumner, 195, 201, Mr. Justice Sto7-y 
 said it seemed that these acts had been construed in practice not to im- 
 pose upon ships and vessels in the whale and other fisheries, the payment of
 
 CH. XV.] CARE OF SEAMEN IN SICKNESS. 81 
 
 ever, by the general law merchant, an obligation upon every ship- 
 owner or master to provide for a seaman who becomes sick, or 
 wounded, or maimed in the discharge of his duty, whether at 
 home or abroad, at sea or on land, — if it be not by his own fault,^ 
 — suitable care, medicines, and medical treatment, including nurs- 
 ing, diet, and lodging.^ At first it was held that the statute re- 
 hospital money. By the Act of March 1, 1843, o. 49, 5 U. S. Stats, at Large, 
 602, the provisions and penalties of the Act of 1798 are extended to registered 
 vessels in the coasting-trade. Canal boats without masts or steam power are 
 exempt, by the act of 1846, from the payment of hospital money, and are not en- 
 titled to the benefit from the hospital fund. By the act of 1864, if a vessel of the 
 United States is sold in a foreign port, tiie consul, vice-consul, commercial agent, 
 or vice-commercial agent of the United States within whose consulate or district 
 such sale or transfer is made, or in whose hands the papers of the vessel are, is 
 required to collect of the master or agent all moneys due under the act of 1798. 
 
 * In Johnson c. Huckins, 1 Sprague, 67, it was held that a seaman, during an 
 illness occasioned by his own fiiult, was not entitled to wages, and was liable for 
 the expenses of his subsistence, but not for the wages paid another man in his 
 place, nor for the detention of the vessel for want of his services, it being in the 
 power of the master to procure a substitute. 
 
 " Laws of Oleron, arts. 6, 7; Laws of Wisbuy, art. 19; Laws of the Hanse 
 Towns, art. 39 ; Molloy, 243; L'Ord. de la Mar. liv. 3, tit. 4, art. 11; Valin, 
 Com. tome 1, p. 721 ; Pothier on Maritime Contracts, n. 190, Cushing's transla- 
 tion, 115; Pothier, Us et Const, de la Mer, p. 31 ; Harden v. Gordon, 2 Mason, 
 541 ; Walton v. The Ship Neptune, 1 Pet. Adm. 142 ; Hastings v. The Ship 
 Happy Return, id. 253, 256, n. ; .The Forest, Ware, 420 ; The Brig George, 1 
 Sumner, 151 ; Reed o. Canfield, id. 197; Lamson v. Westcott, id. 591, Appen. ; 
 Crapo V. Allen, 1 Sprague, 184. Freeman v. Baker, Blatchf & H. Adm. 372, 
 382; Nevitt v. Clarke, Olcott, Adm. 316; Croucher v. Oakman, 3 Allen, 185. 
 In Reed v. Canfield, supra, it was held that if the seaman was injured while in the 
 service of the ship, he was entitled to the expenses of his cure until it was com- 
 pleted, as far as the ordinary medical means extend, but that the owners were not 
 liable for consequential damages. In Nevitt v. Clarke, Olcott, Adm. 316, it was 
 held that the owners were only liable for expenses while the seaman was in their 
 employ. See also The Atlantic, Abbott, Adm. 451, where this question is dis- 
 cussed at length. In Ringold v. Crocker, Abbott, Adm. 344, the seaman went on 
 shore without leave, and on returning to the vessel, when asked by the mate why 
 he went ashore, answered in an insolent manner, whereupon the mate struck him 
 with a belaying-pin and injured him severely. The master was boarding on 
 shore at the time, and when the seaman went to him he placed him in a house 
 there, and directed a physician to attend him. Held, that the seaman was en- 
 titled to be cured if injured while in the service of the ship, and that he was t.o be 
 deemed in the service while under the power and authority of the officers, and 
 that an injury received in executing an improper order, or inflicted on him by 
 VOL. 11, 6
 
 82 ON THE LAW OF SHIPPING. [BOOK I. 
 
 quiring a medicine-chest, substituted this requisition for the more 
 general requirement of law ; but it may be doubted whether this 
 is so, in any degree ; and it seems to be well settled that the gen- 
 eral obligation of the law merchant remains in force, unless tlie 
 medicine-chest is provided with medicines and means of medical 
 treatment which the particular case requires, and there is suffi- 
 cient skill on board to make a proper use of those medicines.^ 
 
 the wrongful violence of an officer, would equally entitle him to this privilege, 
 la Brown v. Overton, 1 Sprague, 4G2, a seaman was thrown from a yard while 
 reefing a topsail, and broke both legs below the knees. The vessel was on a voy- 
 age from Calcutta to Boston, and at the time of the accident was twenty-five days' 
 sail from St. Helena. This island was passed about forty miles distant. A suit 
 was brought against the master, and the grounds of complaint were, that he did 
 not put into St. Helena, that there was want of proper care and attention during 
 the passage, and neglect after arriving at Boston. The libellant recovered dam- 
 ages on all these grounds. See, however, Organ v. Brodie, 10 Exch. 449. 
 
 ' If, from the nature of the disease or from other circumstances, there is no per- 
 son on board by whom the medicines can be safely administered under the ])rinted 
 medical directions accompanying the chest, the attendance of a physician will be 
 a charge on the owners. The Forest, Ware, 420. Cases requiring extraordinary 
 assistance, such as surgical aid, which the medicine-chest cannot supply, are not 
 within the spirit of the statute, which it seems " is limited to the ordinary cases of 
 illness on board the ship ; a sickness of such a character that the patient may be 
 and is kept on board, and receives or may receive the benefit of the medicine- 
 chest and directions, and the advice and assistance of the master of the ship, or 
 some other competent person attached to the ship, in the application of the med- 
 ical directions accompanying the chest, and such nursing and attendance as the 
 situation of the ship may admit." Per Davis, J., in Lamson v. Westcott, 1 Sum- 
 ner, 591, 595, App. See also the remarks of Peters, J., in Hastings v. The 
 Happy Return, 3 Pet. Adm. 253, 256, n. ; and the case of Reed v. Canfield, 1 
 Sumner, 195, where a seaman whose feet had been frozen in the service of the 
 ship, so that partial amputation became necessary, was allowed to recover the 
 expenses of his care from the owners under the general maritime law. The 
 charge for nursing and attendance is not affected by the act. Story, J., in 
 Harden v. Gordon, 2 Mason, 541. The burden of proof, as to the sufficiency of 
 the medicine-chest, is always upon the owner. The Forest, Ware, 420 ; The 
 Nimrod, id. 9 ; Harden v. Gordon, siq^ra ; Freeman v. Baker, Blatchf & H. 
 Adm. 372, 382; The William Harris, Ware, 367, 375. It was also held in this 
 case that the captain is not a proper person to prove the sufficiency of the medi- 
 cine-chest, but the testimony of some reputable physician, who has examined it, 
 is requisite. In Knight v. Parsons, 1 Sprague, 279, one of the crew of a mack- 
 erel vessel was taken sick, and went on shore and bought medicine, and consulted 
 a physician. Afterwards, being worse, he was put on shore at his own request, 
 and did not return to the vessel. There was no medicine-chest on board. It
 
 CH. XV.] CARE OF SEAMEN IN SICKNESS. 83 
 
 Where that is the case, a seaman lias no right to demand to be 
 taken on shore for better medical treatment, or to have a physi- 
 cian from on shore sent for ; and if such demand is comphed with, 
 the expenses may be charged to the seaman. ^ This right of care 
 extends to the officers of the ship, including the master.^ If a 
 seaman be put on shore for the safety of the crew, his disease 
 being contagious, then, of course, the whole expense falls on the 
 ship. 3 Where a seaman, who was too sick to perform labor, left 
 the vessel without permission after her arrival, but before the 
 cargo was discharged, it was held that wages were due to the time 
 of leaving, and that no deduction should be made from the amount 
 due, on account of his leaving the vessel.^ 
 
 was held that he was entitled to recover all these expenses, although evidence of 
 a usage was shown to the effect that fishermen in mackerel vessels were cured at 
 their own expense in case of sickness. 
 
 ' Holmes V. Hutchinson, Gilpin, 447. And it has been held that the rule is the 
 same, whatever may be the nature of the disease ; even if it be of a violent and 
 dangerous kind, and the physician was sent for without the request of the seaman. 
 Pray v. Stinson, 21 Maine, 402. But this is certainly at variance with the author- 
 ities cited in the preceding notes. 
 
 - In The Brig George, 1 Sumner, 151, the owners were held liable for the ex- 
 penses incurred on account of the sickness of the mate while acting as master, 
 and Slori/, J., expressed the opinion that the rule extended to all officers as well 
 as to the men. In Winthrop v. Carleton, 12 Mass. 4, the master of a vessel, 
 while in port, was taken sick with the smallpox and went to a boarding-house, 
 where he died. The consignee paid the board, the physician's bills, and the 
 funeral expenses, and brought this action to recover back the money so paid. 
 The owner of the ship was held liable, a usage being shown that it was customary 
 for the consignee to pay such charges, and look to the owners. 
 
 * Harden v. Gordon, 2 Mason, 541 ; Walton v. The Neptune, 1 Pet. Adm. 142, 
 152; Hastings v. The Happy Return, id. 253, 256, n. ; The Forest, Ware, 420; 
 The Brig George, 1 Sumner, 151, But, semble, not when the seaman is removed 
 at his own request from a vessel properly provided in all respects. Pierce v. Pat- 
 ton, Gilpin, 436. See also Pray i-. Stinson, 21 Maine, 402. But in Johnson v. 
 Doubty, 1 Ashm. 165, it was held that a seaman, who, when sick with the yellow 
 fever, was asked whether he would stay on board or go to the hospital, chose the 
 latter, was entitled to full wages, on the ground that it was the duty of the master 
 to send him ashore at all events. See also The Atlantic, Abbott, Adm. 451, 477. 
 
 * Francis v. Bassett, 1 Sprague, 16.
 
 8-4 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION VII. 
 
 OF THE RETURN OF SEAMEN TO THIS COUNTRY. 
 
 The right of the sailor to be brought back to his home, is very 
 jealously guarded by our laws. Every ship must be provided with 
 the shipping articles and a shipping list, verified under the oath 
 of tlie master ; ^ this he is required to present to the consul or 
 commercial agent of the United States, at every foreign port 
 which he visits, when so requested,^ and is under bond to deliver 
 to the boarding officer who comes on board his ship at the first 
 home port which he reaches, and to produce the persons named 
 therein,^ that it may be ascertained that he has his whole crew 
 on board. If it appears that any of them are missing, he must 
 account for their absence.* If he discharges any of them abroad, 
 with his or their own consent, he must pay to the American con- 
 sul of the port, or the commercial agent, over and above the wages 
 then due, three months' wages, of which two thirds are paid to 
 the seaman, and one third retained by the consul and remitted 
 to the treasury of the United States, to form a fund for the main- 
 tenance of American seamen abroad and for bringing them home.^ 
 
 1 Act of 1803, c. 9, § 1, 2 U. S. Stats, at Large, 203. 
 
 * The Act of 1840, c. 48, § 3, 5 U. S. Stats, at Large, 395, requires tbe master 
 to produce the hst above mentioned to the consul or other commercial agent, 
 " whenever he may deem their contents necessary to enable him to discharge the 
 duties imposed upon him by law toward any mariner applying to him for his aid 
 or assistance." 
 
 * Act of 1803, c. 9, § 1, 2 U. S. Stats, at Large, 203. 
 
 * The bond is not forfeited, however, if any of the persons not produced have 
 been discharged in a foreign country with the consent of the consul, vice-consul, 
 commercial agent, or vice-commercial agent there residing, and such consent is 
 signified in writing under his hand and official seal, and produced to the collector 
 with the rest of the crew, nor if any such persons have died or absconded, or have 
 been forcibly impressed into other service, of which satisfactory proof shall be 
 then exhibited to the collector. Act of 1804, c. 9, § 1. Under this section it has 
 been held that the certificate of the consul must state that the seamen were left in 
 the foreign port with their consent, and a certificate that they were left in a hos- 
 pital unable to return, and that the master had paid for their maintenance, and 
 left the amount of their wages, was held insufficient, and parol evidence of the 
 consent of the consul or seamen was not admitted. United States v. Hatch, 1 
 Paine, C. C. 336. 
 
 ^ Act of 1803, c. 9, § 3, 2 U. S. Stats, at Large, 203. If a seaman is left in a
 
 CH. XV.] RETURN OF SEAMEN TO THIS COUNTRY. 85 
 
 If the discharge is caused by any disaster which breaks up the 
 voyage, so that the ship cannot be repaired and the voyage re- 
 sumed in a reasonable time and at a reasonable cost, the above 
 requirement does not apply to it.^ And it is now provided by 
 
 foreign port, and the vessel is subsequently sold, it is doubtful if he can recover 
 the extra wages allowed by this act in the case of sale. Nevitt v. Clarke, Olcott, 
 Adm. 316. The act of 1840, c. 48, § 5, 5 U. S. Stats, at Large, 395, allows a 
 consul, upon the application of both the master and any mariner under him, to 
 discharge such mariner, if he thinks it expedient, without requiring the payment 
 of three months* wages. And it seems that the certificate of the consul that the 
 seaman was discharged with his own consent, is conclusive of the fact unless fraud 
 on the part of the consul is shown. Lamb v. Briard, Abbott, Adm. 367. But 
 the certificate must show on what ground the consul proceeded, and it is not 
 enough for him to certify that he gave the discharge "lawfully," or that he gave 
 it "in accordance with the law of the United States," but it must set forth that 
 the discharge was made on the application of the master and the mariner, or on 
 that of the mariner alone. And to entitle it to the respect accorded to documents 
 under an official signature and seal, the signature must be legible, and the impres- 
 sion of the seal sufficiently distinct to allow the vignette and motto to be distin- 
 guished. The Atlantic, Abbott, Adm. 4.51. And to avail the owner in a suit 
 brought against him for the two months' wages, it must appear that the consul 
 personally made an official entry of his act both upon the list of the crew, and 
 upon the shipping articles. Miner v. Harbeck, Abbott, Adm. 546. Where a 
 vessel is sold, the seaman is entitled to his wages up to the actual sale of the 
 vessel, and not merely to the time of the advertisement of such sale. Lang v. 
 Holbrook, Crabbe, 179. The Act of 1856, c. 127, § 26, 11 U. S. Stats, at Large, 
 62, makes it obligatory upon the consul, upon the application of any seaman or 
 mariner for a discharge, if it appear that he is entitled to it under any act of Con- 
 gress, or according to the general principles or usages of maritime law, as recog- 
 nized in the United States, to discharge him, and to require the three months' 
 extra wages, as provided in the Act of 1803, c. 9, and the master shall pay this in 
 all cases, unless the consul shall be satisfied that the contract has expired, or the 
 voyage been protracted by circumstances beyond the control of the master, with- 
 out any design to violate the articles of shipment, in which case if he deems it 
 just he may discharge the mariner without exacting the additional pay. The 
 three months' wages are to be held by the consul for the same purposes as pro- 
 vided in the act of 1803, and if the consul neglects to require the payment of, and 
 to collect the said wages, he shall be answerable to the United States, and to the 
 seaman, respectively, for their shares of such wages. 
 
 > The Dawn, Ware, 485, Daveis, 121 ; Henop v. Tucker, 2 Paine, C. C. 151 ; 
 The Saratoga, 2 Gallis. 164, 181. See Dodge v. Union Ins. Co. 17 Mass. 471. 
 In Brown v. The Independence, Crabbe, 54, it was held, where a seaman was 
 injured by the mate, and the police authorities of the place took him on shore to 
 the hospital without his request and against the will of the master, who also 
 wanted to take him away with him when he left, that the seaman was not entitled 
 to the benefit of the Act of 1803.
 
 86 ON THE LAW OF SHIPPING. [BOOK I. 
 
 statute " that in cases of wrecked or stranded ships or vessels 
 condemned as unfit for service, no payment of extra wages shall 
 be required."^ 
 
 The ship must be repaired,^ or if captured, all proper means used 
 to obtain restoration, and the seamen may hold on, a reasonable 
 time, for this purpose. And if discharged before, they may claim 
 their extra wages.^ Our consuls and commercial agents may au- 
 thorize the discharge of a seaman for good cause, but this must 
 be disobedience, or misconduct, or disability by his own fault, of 
 an extreme degree.* If the stipulations of the shipping articles 
 
 ^ Act of 1856, c. 127, § 26, 11 U. S. Stats, at Large, 62. In Hoffman v. Yar- 
 ington, U. S. D. C. Mass. Lowell, J., speaking of this statute said: "This statute 
 appears to me to modify the law of 1803, as construed by the courts, and to 
 except cases where the voyage is in good faith broken up by reason of the unsea- 
 worthiness of the vessel, from whatever cause arising, from the operation of the 
 rule. It does not authorize or require me to go into the question of overruling 
 necessity, but merely of good faith, as I apprehend, or at most to inquire whether 
 the conduct of the master was such as a prudent man would have followed in like 
 
 circumstances There is much reason to believe that she (the vessel) was 
 
 old and rotten, and totally unfit to keep the seas. If so, the statute provision is 
 operative, for, as I have said, it is no part of the requirement of that proviso that 
 the unfitness should have been caused by a sea peril occurring in that particular 
 voyage." It was also held that the owners were not liable for the expenses of the 
 seamen home, where the vessel was sold in a foreign port on account of her un- 
 seaworthiness. 
 
 ■^ Pool V. Welsh, Gilpin, 193 ; The Dawn, Ware, 485. In Wells v. Meldrun, 
 Blatchf. & H. Adm. 342, it was held that where a vessel was condemned in a 
 foreign port as unseaworthy, and sold on that account, and the voyage relin- 
 quished, the seamen were entitled to their extra wages under the act. Betfs, J., 
 states the reasons of the decision as follows : " The necessity for the sale, in this 
 instance, for unseaworthiness, was not the result of any casualty to the vessel ; 
 nor was the sale compulsory, under any coercion, judicial or administrative, at the 
 foreign port, so as to take away the discretion and free action of the master. 
 There is no proof that the vessel was even irreparable, or that the unseaworthi- 
 ness was more than the result of the natural wear of the ship on her voyage, or of 
 her imperfect condition when sent to sea." 
 
 ^ The Saratoga, 2 Gallis. 164; Emerson v. Rowland, 1 Mason, 45. 
 
 * Under the Act of 1803, c. 9, § 1, 2 U. S. Stats, at Large, 203, a discharge of 
 a seaman in a foreign port, in order to justify a master for not producing him on 
 the return of the vessel, must have been " with the consent of the consul, vice- 
 consul, commercial agent, or vice-commercial agent, there residing, signified in 
 writing under his hand and official seal." In regard to what degree of miscon- 
 duct will justify the master in putting an end to the contract with seamen, see 
 cases i?}fra. In Hutchinson v. Coombs, Ware, 65, 70, Ware, J., after admitting
 
 CH. XV.] RETURN OF SEAMEN TO THIS COUNTRY. 87 
 
 are violated by the master,^ if the vessel be uiiseaworthy,^ or the 
 seaman subjected to cruel treatment, he may be discharged by the 
 consul or commercial agent, and his three months' wages allowed 
 him, as if it were a voluntary discharge by the master. And this 
 even if the sailor has deserted the ship by reason of such cruelty.^ 
 Consuls may also send home our seamen in other ships, which 
 are bound to take them, for a compensation not exceeding ten 
 dollars for each man, and the sailor so sent is bound to work and 
 obey as if he had originally shipped in that vessel.^ If a master 
 discharges a seaman against his consent and without good cause, 
 
 that, by the marine law, a master could, in certain cases, turn a mariner out of 
 the vessel, said : " But this he cannot do for slight or venial offences, and cer- 
 tainly not for a single offence, unless ef a very aggravated character. The cases 
 stated, in which a master is permitted to discharge a seaman are, when he is in- 
 corrigibly disobedient, and will not submit to do his duty, Thorne v. White, 1 
 Pet. Adm. 168, 175 ; or if he is mutinous and rebellious, and persists in such con- 
 duct, Relf V. The Maria, 1 Pet. Adm. 186 ; or guilty of gross dishonesty, as em- 
 bezzlement or theft, Black v. The Louisiana, 2 Pet. Adm. 268 ; or if he is an 
 habitual drunkard, a stirrer up of quarrels and broils, to the destruction of the 
 discipline of the crew ; or by his own fault renders himself incapable of perform- 
 ing his duty." In Nieto v. Clark, U. S. D. C. Mass. Boston Courier, March 
 23, 1858, it was held that the master was justified in discharging a seaman who 
 entered the state-room of a lady passenger, and conducted himself there in a 
 grossly indecent manner. This case was affirmed, 1 Clifford, C. C. 145. See 
 also Orne v. Townsend, 4 Mason, 541, 548 ; Whitton v. The Brig Commerce, 
 1 Pet. Adm. 160, 164; Atkyns v. Burrows, id. 244, 248. The Kimrod, Ware, 9. 
 If the seaman is taken from a vessel in a foreign port and sent home for a 
 crime, his contract with the vessel is at an end, and he cannot recover any wages 
 subsequently accruing. Smith v. Treat, Daveis, 266. So .if the seaman is sent 
 home by the consul. Tingle v. Tucker, Abbott, Adm. 519. 
 ^ Act of 1840, c. 48, § 9, 5 U. S. Stats, at Large, 395. 
 
 * Act of 1840, c. 48, § 14. 
 ^ Act of 1840, c. 48, § 17. 
 
 * Act of 1803, c. 9, § 4, 2 U. S. Stats, at Large, 204. This act provides a 
 penalty of one hundred dollars, in case any master refuses to bring home destitute 
 seamen. In Matthews v. Offley, 3 Sumner, 115, it was held that an action for 
 this penalty must be brought in the name of the government. It was also held 
 in this case, that if the seaman deserted from an American ship, and she was in 
 port at the time he became destitute, the consul might require another American 
 vessel to bring him home. It was also held that foreigners, while employed as 
 seamen on American ships, are entitled to the privileges of the act ; and that the 
 certificate of the consul is prima facie evidence of all the facts stated in the enact- 
 ing clause of the section, which are necessary to bring the case within the 
 penalty.
 
 88 ON THE LAW OF SHIPPING. [BOOK I. 
 
 in a foreign port, he is liable to a fine of five hundred dollars or 
 six months' imprisonment. And the seaman may recover, besides, 
 full indemnity for his time lost or expenses incurred by reason of 
 such discharge.^ 
 
 SECTION viir. 
 
 OF THE DISOBEDIENCE OF SEAMEN. 
 
 Disobedience or misconduct of a sailor is, of necessity, punish- 
 able with great severity, because discipline must be preserved, as 
 without it the ship would always be in great peril, and no voyage 
 could be successfully conducted.^ But incompetency to perform 
 
 ^ See ante^ section on "Wages. 
 
 2 Thome v. White, 1 Pet. Adm. 168; Gardner v. Bibbins, Blatchf. & H. Adm. 
 356 ; The Elizabeth Frith, id. 195, 208 ; The United States v. Wiekham, 1 Wash. 
 C. C. 316; Jordan v. AVilliams, 1 Curtis, C. C. 69; United States v. Smith, 3 
 Wash. C. C. 525 ; Michelson v. Denison, 3 Day, 294 ; United States v. Freeman, 
 4 Mason, 505, 512; Carleton v. Davis, Daveis, 221; Turner's case. Ware, 83; 
 United States v. Peterson, 1 Woodb. & M. 305 ; Fuller v. Colby, 3 id. 1 ; United 
 States V. Borden, 1 Sprague, 374. See also cases infra. In Sheridan v. Furbur, 
 Blatchf. & H. Adm. 423, it was held that general orders from one officer would 
 not excuse disobedience to the specific orders of another. 
 
 A hammer is an improper weapon to strike a seaman with, nor is it any excuse 
 that the weapon was casually in the hands of the captain, and that he used it in a 
 moment of excitement, and under circumstances which would have justified some 
 punishment. Saunders v. Buckup, Blatchf. & H. Adm. 264. So a sword is an 
 improper weapon to strike a seaman with, but a bucket of water thrown over a 
 person to make him move quicker has been held to be no severe punishment, 
 especially in the month of August. Schelter v. York, Crabbe, 449. And it has 
 been held in the same court, that a blow with a dirty frying-pan, or wiping a dirty 
 knife on the face of the person whose duty it was to keep these articles clean, is not 
 a very aggravated or cruel assault. Forbes v. Parsons, Crabbe, 283. See also 
 Benton v. Whitney, id. 417. A belaying-pin is an improper instrument for 
 punishment. Carleton w. Davis, Daveis, 221; Shorey y. Rennell, 1 Sprague, 407; 
 Ringold V. Crocker, Abbott, Adm. 344 ; so is a log of firewood. Brown v. The 
 Independence, Crabbe, 54. But if a person is indicted for committing an assault 
 with a dangerous weapon, it is a question for the jury, and not for the court, 
 whether the instrument used was a dangerous weapon. United States v. Small, 
 2 Curtis, C C. 241. In Jarvis v. Sherwood, Bee, Adm. 248, it is held that a cut- 
 lass should only be used when a mutiny exists or is threatened, but moderate cor- 
 rection with the fist is justifiable. This case also decides that a captain who
 
 CH. XV.] DISOBEDIENCE OF SEAMEN. 89 
 
 the duties of the station for which an officer or seaman has shipped, 
 is no justification for the infliction of punishment.^ Formerly there 
 was no specific limit to the right of punishment. It might be 
 administered by the master in any form, and in any measure, he 
 always being answerable for his excess or cruelty, both criminally^ 
 and in damages to the seaman.^ But if the mate, in obedience to 
 the commands of the master, assists him in punishing a seaman, 
 he will not be answerable as a joint trespasser, unless the punish- 
 
 encourages disorderly conduct in his men, is the less excusable for inflicting un- 
 usual punishment for conduct arising in some measure out of that. It is no jus- 
 tification for an assault that the person assaulted when told by the captain not tb 
 swear, retorted that he had heard him swear, and repeated the language. Morris 
 V. Cornell, 1 Sprague, 62. In Roberts v. Eldridge, 1 Sprague, 54, it was held 
 that the master of a vessel may use a deadly weapon when necessary, in order to 
 suppress a mutiny, and that a mutineer although injured thereby can maintain no 
 action for damages. S. P. United States v. Colby, 1 Sprague, 119; United States 
 V. Lunt, 1 Sprague, 311. 
 
 ^ Payne v. Allen, 1 Sprague, 304. 
 
 = Acts of 1825, ch. 65, § 22, 4 U. S. Stats, at Large, 122 ; Act of 1835, eh. 40, 
 § 3, 4 U. S. Stats, at Large, 776. For decisions under the former of these acts, 
 see United States v. Grush, 5 ]Mason, 290 ; United States v. Hunt, 2 Story, 120. 
 In United States v. Cutler, 1 Curtis, C. C. 501, the master was indicted under the 
 Act of 1835, for beating one of his crew with malice and without justifiable cause. 
 Curlis, J., said : " The government must prove : 1, the beating ; 2, the want of jus- 
 tifiable cause; 3, malice." See also LTnited States v. Alden, 1 Sprague, 95; 
 United States v. Winn, 3 Sumner, 209 ; United States v. Small, 2 Curtis, C. C. 
 241. Although flogging is now abolished, yet it is not a cruel and unusual 
 punishment, within the meaning of the third section of the Act of 1835. United 
 States V. Collins, 2 Curtis, C. C. 194. 
 
 ' In Forbes v. Parsons, Crabbe, 282, it was held that a seaman is, in general, 
 entitled to recover damages for an assault from the master, first, where personal 
 violence is inflicted, not excessively, but wantonly, and without provocation or 
 cause; second, where there was provocation and cause, but the puni-hment was 
 cruel, or excessive ; third, where the punishment is inflicted with a dangerous 
 weapon. See also The Agincourt, 1 Hagg. Adm. 271 ; Watson v. Christie, 2 B. 
 & P. 224 ; Shorey v. Rennell, 1 Sprague, 407 ; Brown v. Howard, 14 Johns. 119; 
 Sampson v. Smith, 15 Mass. 365; Rice i'. The Polly & Kitty, 2 Pet. Adm. 420; 
 Roberts v. Dallas, Bee, Adm. 239 ; Jarvis v. Sherwood, Bee, 248 ; Jenks v. Lewis, 
 Ware, 51, 3 Mason, 503; Elwell v. Martin, AYare, 53 ; Butler v. McLellan, id. 
 219; Hutson v. Jordan, id. 385; Polydore v. Prince, id. 402; Bangs v. Little, id. 
 506 ; Pettingill v. Dinsmore, Daveis, 208 ; Thomas v. Lane, 2 Sumner, 1 ; Morris 
 V. Cornell, 1 Sprague, 62 . Whitney v. Eager, Crabbe, 422 ; Sheridan v. Furbur, 
 Blatchf & H. Adm. 423; Knowlton v. Boss, 1 Sprague, 163; Jones v. Sears, 2 
 Sprague, 43.
 
 90 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ment is obviously and grossly excessive and unjust.^ Seamen 
 have a right to the protection of the master against illegal vio- 
 lence from the other officers of the vessel, and he is bound to hear 
 their complaints and prevent a repetition of their wrongs.^ If, 
 therefore, seamen are illegally treated by the mate, and the cap- 
 tain refuses to hear their complaints, and the ship is in port and 
 safely moored, the seamen are entitled to their discharge.^ It has 
 also been held that no one but the highest officer on board can 
 inflict punishment for a past offence for the purpose of reforma- 
 tion or example.* Now, however, flogging is abolished and pro- 
 hibited by law.^ This has been declared, by very high authority, 
 to include the use of the cat, and every similar form of punish- 
 ment ; but not necessarily to include all corporal punishment, 
 such as a blow with the hand, or a stick, or rope ; ^ and in a 
 
 * Butler V. McLellan, Ware, 219; Sheridan v. Furbur, Blatchf. & H. Adm. 
 423. 
 
 ^ See Hathaway v. Jones, 2 Sprague, 56. 
 ^ Shorey v. Rennell, 1 Sprague, 407. 
 
 * Ibid. 
 
 ^ Act of 1850, c. 80, 9 U. S. Stats, at Large, 515, contains the following 
 clause : " Provided, That flogging in the navy, and on board vessels of commerce, 
 be and the same is hereby abolished, from and after the passage of this act." Mr. 
 Justice Curtis, in a charge to the grand jury, delivered at Providence, R. I., 
 November 15, 1853, instructed them that the words " vessels of commei-ce," in the 
 above statute, included vessels engaged in the whale and other fisheries. 1 Cur- 
 tis, C. C. 509. So held also in United States v. Cutler, 1 Curtis, C. C. 501 ; 
 Payne v. Allen, 1 Sprague, 304. The Act of 1850 is not a penal law, and no in- 
 dictment can be framed upon it. But it has an important bearing upon the Act 
 of 1835, in regard to the question of justifiable cause and malice. United States 
 V. Cutler, supra. In a case decided by Judge Sprague, in the District Court 
 of the United States for the Massachusetts District, February, 1857, Captain 
 Lendholm of the ship Josephine was charged with maltreating his crew of Las- 
 cars. The court held that although the captain was apparently honest in the be- 
 lief that the men had conspired to poison him, yet he had no right to flog them. 
 
 * Charge to the Grand Jury, 1 Curtis, C. C. 509. In the United States v. 
 Cutler, 1 Curtis, C. C. 501, the master of a vessel was indicted under the Act of 
 1835, for beating one of his crew maliciously and withqut justifiable cause. The 
 master had punished the seaman by inflicting six blows ujjon him with a piece of 
 ratlin stuff'. Mr. Justice Curtis said : " If the punishment inflicted was the 
 punishment of flogging, within the meaning of the Act of 1850, there could be no 
 justifiable cause, the authority of the master to punish by flogging being taken 
 away. And it is for the jury to find whether what was done amounted to the 
 punishment of flogging abolished by that act. In order to decide this question, it
 
 CH. XV.] DISOBEDIENCE OF SEAMEN. 91 
 
 case tried in Boston in the Common Pleas, February, 1854, it 
 was held, on what seem to us to be good reasons, that the stat- 
 ute was intended to apply to deliberate flogging by way of 
 punishment, and not to a blow or blows of any kind inflicted 
 upon an emergency to produce immediate obedience. ^ Gener- 
 ally the only punishments which can now be resorted to, to en- 
 force obedience and good conduct, are forfeiture of wages,^ 
 irons,^ confinement on board,* imprisonment on shore,^ hard la- 
 is necessary for the juiy to attend to what is the punishment of flogging referred 
 to in that law; and my instruction is, that it is corporal punishment by stripes in- 
 flicted with a cat, or any punishment which,- in substance and effect, amounts 
 thereto. The particular form of the instrument is not material ; what you must 
 look to is the effect produced. If the man was punished by stripes inflicted with 
 a rope, and this, in substance and effect, is the same kind of punishment as the 
 punishment of flogging with a cat, then it is prohibited by this law. The degree 
 of severity of the punishment is not material. It is the kind, and not the degree, 
 of punishment which is important. It may be that one blow with a cat would 
 inflict stripes more painful to be borne, than one blow with a piece of ratlin stuff". 
 But this is not material, if both are corporal punishment by stripes, and both are 
 in substance the same kind of punishment." 
 
 * And Sprague, J., in the case of Shorey v. Rennell, 1 Sprague, 407, said: 
 " Any ofllcer may use violence when necessary to coerce the performance of a 
 duty, when an exigency requires instant obedience." And in United States r. 
 Alden, 1 Sprague, 95, the same judge ruled "that there might be extreme cases, 
 as of mutiny, where the master might resort to extreme measures, even to the 
 taking of life." 
 
 ' Relf r. Ship Maria, 1 Pet. Adm. 186 ; Atkyns v. Burrows, id. 244 ; Thome v. 
 White, id. 168; Buck v. Lane, 12 S.& R. 266. 
 
 ' Turner's Case, Ware, 83; Macomber v. Thompson, 1 Sumner, 384, 389; 
 Sampson v. Smith, 15 Mass. 365, 369; Shorey v. Rennell, 1 Sprague, 407. 
 
 * In United States v. Alden, 1 Sprague, 95, the defendant was indicted under 
 the U. S. Statute of March 3, 1835, sec. 3, for imprisoning, '' from malice, hatred, 
 and revenge, and without justifiable cause," one of the seamen. It appeared that 
 the seaman deserted, was retaken, and was first put in irons, and in a day or two 
 taken out and informed that if he would not do duty he should be put in the run. 
 The seaman refused to do duty, and objected to the run as an improper place 
 of imprisonment. He was put in the run and remained there for five months, 
 and persisted in refusing to return to duty. Sprague, J., ruled that if the im- 
 prisonment was such from its nature and duration as was likely to be permanently 
 injurious to the health or constitution of the seaman. It was not justifiable. 
 
 - Under some circumstances the master may imprison the seamen on shore. 
 United States v. Ruggles, 5 Mason, 192; Relf v. Ship Maria, 1 Pet. Adm. 186; 
 Wood V. The Nimrod, Gilpin, 83, 89. But, as is said by Judge HopHnson, 
 in Wilson v. The Mary, Gilpin, 31, 32, "The practice of imprisoning disobedient
 
 92 ON THE LAW OF SHIPPING. [BOOK I. 
 
 bor,^ or such other means as may be invented to take the place 
 of flogging. In connection with this subject we will consider 
 
 and refractory seamen in foreign jails is one of doubtful legality. It is certainly 
 to be justified only by a strong case of necessity. It is not among the ordinary 
 means of discipline put into the hands of the master. I am inclined to think 
 there should be danger in keeping the offender on board, or some great crime 
 committed when this extreme measure is resorted to. It should be used as one of 
 safety rather than discipline, and never applied as a punishment for past miscon- 
 duct. The powers given by the law to the master, to preserve the discipline of 
 his ship, and compel obedience to his authority, are so strong and full, that they 
 can seldom fail of their effect ; they should be clearly insufficient, before we should 
 allow the exercise of a power which may so easily be made an instrument of 
 cruelty and oppression, and may be so terrible in its consequences." See also 
 Thome v. White, 1 Pet. Adm. 168, 175, note; Magee v. The Moss, Gilpin, 219 ; 
 The Nimrod, Ware, 9, 18; The William Harris, id. 3G7; The David Pratt, id. 
 496, 503; Jay v. Almy, 1 Woodb. & M. 262; Jones v. Sears, 2 Sprague, 43; 
 Wope V. Hemenway, 1 Sprague, 300, affirmed. Snow r. Wope, 2 Curtis, C. C. 
 301 ; Johnson v. Ship Coriolanus, Crabbe, 239 ; Gardner v. Bibbins, Blatchf. & 
 H. Adm. 356 ; Buddington v. Smith, 13 Conn. 334. " When even a master of a 
 ship thinks it necessary to cause any of his crew to be confined in a foreign jail, 
 he ought to pay some regard to their condition and treatment there, and should 
 from personal examination, or at least through a reliable agent, see that they are 
 such as humanity requires." Per Sprague, J., Shorey v. Rennell, 1 Sprague, 411. 
 If a seaman is imprisoned by the authorities of a foreign country for the violation 
 of its laws, the costs and charges may be deducted from his wages. Magee v. The 
 Moss, Gilpin, 219. But if he is imprisoned by the master, neither the costs and 
 charges, nor the pay for the hire of another, are to be deducted from his wages. 
 Same case. See also Thorne i'. White, 1 Pet. Adm. 168, 176, note; Wilson v. 
 The Mary, Gilpin, 31 ; Wood v. The Nimrod, id. 83, 89 ; The Nimrod, Ware, 9, 
 19 ; The William Harris, id. 367 ; The David Pratt, Ware, 495 ; Johnson v. Ship 
 Coriolanus, Crabbe, 239 ; The Maria, Blatchf & H. Adm. 331 ; Thomas v. 
 Gray, id. 493. But see Jordan v. Williams, 1 Curtis, C. C. 69, 86. In Johnson 
 V. Ship Coriolanus, supra, it was held that the certificate of a consul setting forth 
 the facts that led to the imprisonment was not evidence, and afforded no justifi- 
 cation for the master, and that the court would examine the whole question de 
 novo, and determine whether the imprisonment was justifiable. See also to the 
 same effect, Brown v. Brig Independence, Crabbe, 54 ; Wilson v. The Mary, 
 sujjra; The William Harris, Ware, 367, 372. The eleventh section of the Act 
 of 1840, c. 48, 4 U. S. Stats, at Large, 395, is as follows : " It shall be the duty of 
 
 * In Allen v. Hallet, Abbott, Adm. 573, it was held in an action brought 
 against a master by a cook, who had secreted himself on boai'd, to recover dam- 
 ages for being punished for refusal to obey orders, that it was incumbent on the 
 master to prove, in order to justify the punishment, that the man possessed the 
 experience and capacity which would enable him to fulfil the order with safety.
 
 CH. XV.] DISOBEDIENCE OF SEAMEN. 93 
 
 briefly the offences for which the penalty of forfeiture of wages 
 is imposed. A trivial act of irregularity will not work a for- 
 feiture,^ nor will a single act of intemperance, nor an occa- 
 sional act, but it must be habitual, to have this effect.^ Actual 
 violence upon the person of tlie master, on board his own vessel, 
 by one bound to submit to his authority, is not a trivial of- 
 
 consuls and commercial agents to reclaim deserters and discountenance insubor- 
 dination by every means within their power ; and where the local authorities can 
 be u:<efully employed for that purpose, to lend their aid and use their exertions to 
 that end in the most effectual manner." In Jordan v. Williams, 1 Curtis, C. C. 
 69, 80, this section was considered to change the law above stated, and it was 
 there held that if the master in a foreign port lays a complaint against any of his 
 crew before the consul, and the latter, upon examination, finds it expedient or 
 necessary to make use of the local authorities, the master is not responsible for 
 their imprisonment as for a tort, the consul being answerable to the injured party 
 for any malversation or abuse of power. See also Tingle v. Tucker, Abbott, 
 Adm. 519. But, if the consul is absent, his clerk or assistant has no power to 
 procure the interposition of the local authorities, and if the master imprison a sea- 
 man, he is liable as for a tort. Snow v. Wope, 2 Curtis, C. C. 301. In Shorey 
 V. Rennell, 1 Sprague, 416, Sprague,S., said: " Upon the authority of the case of 
 Jordan v. Williams, the captain must be exonerated from liability for the im- 
 prisonment on shore b}' the order and warrant of the consul. But I cannot 
 extend the same immunity to what was done on board of the ship. There the 
 captain was supreme, and must be responsible in damages for wrongs done to his 
 men by his authority or acquiescence. The instructions of the consul mio-ht avail 
 him much in a criminal prosecution, in which malice is an essential aia-eement, 
 and a mistake without evil intent would be a good defence ; but in a civil suit the 
 question is whether a wrong has been done to the libellants, and if so they are 
 entitled to indemnity." 
 
 1 The Gondolier, 3 Hagg. Adm. 190. In The Blake, 1 W. Rob. 73, 74, Dr. 
 Lusliington said: "Wages may be forfeited, not in cases of discharge for mere 
 misconduct alone, but where the misconduct has been such as to render the dis- 
 charge of the seaman imperatively necessary for the safety of the ship and the due 
 preservation of discipline." " The disobedience must be either an act of a very 
 gross nature, involving serious danger, or mischief, or malignancy ; or it must be 
 habitual, and produce such a general diminution of duty, as goes to the very 
 essence of the contract." Per Slory J., The Ship Mentor, 4 Mason, 84, 92, See 
 also Drysdale v. Sch. Ranger, Bee, Adm. 148 ; The Maria, Blatchf & H. Adm. 
 331. In a suit for wages where misconduct is set up as a defence, there must be a 
 special allegation of the facts, with due certainty of time, place, and other circum- 
 stances. Macomber v. Thompson, 1 Sumner, 384. See The Olive Chamberlain, 
 1 Sprague, 9 ; Benton v. Whitney, Crabbe, 418. 
 
 " The New Phcenix, 1 Hagg. Adm. 198; The Lady Campbell, 2 Hagg: Adm. 
 5; The Ealing Grove, id. 15 ; The Malta, id. 158, 1G8; The Duchess of Kent, 1 
 AV. Rob. 283 ; The Atlantic, Lush. Adm. 566. See Jones v. Sears, 2 Sprague, 43.
 
 94 ON THE LAW OF SHIPPING. [BOOK I. 
 
 fence.^ And misconduct on the part of an officer of a vessel is 
 a much more serious offence than if committed by a seaman, and 
 is punished with more severity by the courts.^ It has been held 
 tliat neither error of seamanship in a master, nor neglect to com- 
 municate to a Lloyd's agent the stranding of the vessel, nor neglect 
 to sign a bottomry bond, works a forfeiture of the master's wages.^ 
 If, during the voyage, either the master or a seaman smuggle 
 goods, he either forfeits all his wages, or the damage actually 
 sustained by the owners of the vessel may be charged upon his 
 wages.* Embezzlement by the master or crew also works a for- 
 feiture.^ In England it seems tliat the court have only power to 
 
 ' The Olive Chamberlain, 1 Sprague, 9. 
 
 " The Olive Chamberlain, 1 Sprague, 9. In the Florence, U. S. D. C. New 
 York, Benedict, J., 13 Law Times, n. s. 613, the mate of a ship, having a dispute 
 about his wages, left the vessel, and took the ship's chronometer with him. The mas- 
 ter was obliged to apply to the police to get it back. Seventy-five dollars was due 
 the mate, and the court allowed twenty-five, holding that he had forfeited the rest 
 by his misconduct. It was also held that the fact that the owners had not sus- 
 tained any loss did not make his offence less the subject of a forfeiture. 
 
 » The Camilla, Swabey, Adm. 312. 
 
 * Willard v. Dorr, 3 Mason, 161 ; Freeman v. Walker, 6 Greenl. 68; Scott v 
 Russell, Abbott, Adm. 258. 
 
 ^ This is a well-settled principle of maritime law; Alexander v. Galloway, 
 Abbott, Adm. 2G1. But the question how far a seaman is liable, where an em- 
 bezzlement is proved to have taken place, but the actors in it are not known, is 
 one of a difficult nature, and the decisions respecting it are conflicting, though we 
 consider the matter as virtually at rest at the present time. In Crammer v. The 
 Ship Fair American, 1 Pet. Adm. 242, Judge Peters held that in case of an 
 embezzlement, all the crew, including the captain and officers, were bound to 
 contribute for the damage sustained, although one of the crew was on shore, and 
 confined in prison at the time of the embezzlement, the learned judge remarking : 
 " The innocence of an individual is not the question ; it turns on the joint obli- 
 gation of all, to make retribution ; it is part of the conditions upon which they 
 eno-a<Te in their occupation." In Mariners v. Ship Kensington, 1 Pet. Adm. 239, 
 where the defence was that certain laborers, who assisted in stowing the vessel, 
 embezzled the goods, the court held that the burden was on the seamen to prove 
 this fact and there being no direct evidence who committed it, the seamen were 
 held liable. The severity of the rule laid down in these decisions was somewhat 
 modified in Sullivan v. Ingraham, Bee, Adm. 182, where proof that some of the 
 crew could not have committed the offence was admitted. And in Knap v. Brig 
 Eliza & Sarah, 1 Pet. Adm. 200, where the mate and two seamen were sent 
 ashore in a boat, and one of the men was sent off on the business of the ship, 
 after which the mate and the other seaman left, and the boat was stolen, it was
 
 CH. XV.] DISOBEDIENCE OF SEAMEN. 95 
 
 decree the whole -wages forfeited or noiie.^ But in this country, 
 a part may be forfeited according to the nature of the offence.^ 
 Only those wages earned before the act of misconduct, are for- 
 feited.^ So if the mate is promoted during the voyage, and, while 
 master, commits an offence, it cannot be set up as working a for- 
 feiture of the wages earned as mate.* If the seaman repents and 
 offers to return to duty, the master should receive him, and, if he 
 does so, this acts as a condonation of the offence.^ But permitting 
 
 held that only the two latter were liable. And in Lewis v. Davis, 3 Johns, 1 7, 
 Kent, C. J., held that where part of the crew were on shore by permission of the 
 mate, the master not being on board, and goods were stolen in their absence, they 
 were not liable. In Spurr v. Pearson, 1 Mason, 104, Mr. Justice Story, after an 
 elaborate review of the authorities, stated, as his opinion : " That where the em- 
 bezzlement h^s arisen from the fault, fraud, connivance, or negligence of any of 
 the crew, they are bound to contribute to it in proportion to their wages ; that 
 where the embezzlement is fixed on an individual, he is solely responsible ; that 
 where the embezzlement is clearly shown to have been made by the crew, but the 
 particular offenders are unknown, and from the circumstances of the case strong 
 presumptions of guilt apply to the whole crew, all must contribute ; but that where 
 no fault, fraud, connivance, or negligence is proved against the crew, and no 
 reasonable presumption is shown against their innocence, the loss must be borne 
 exclusively by the owner or master ; that in no case are the innocent part of the 
 crew to contribute for the misdemeanors of the guilty ; and further, that in a case 
 of uncertainty, the burden of the proof of innocence does not rest on the crew, 
 but the guilt of the parties is to be established beyond all reasonable doubt be- 
 fore the contribution can be demanded." See also Joy r. Allen, 2 Woodb. & M. 
 303. The rule in England is similar. Thompson v. Collins, 4 B. & P. 347 ; The 
 Prince Frederick, 2 Hagg. Adm. 394 ; The Duchess of Kent, 1 W. Kob. 283, 
 285. In Anderson v. Sloop Solon, Crabbe, 1 7, it was held not to be embezzle- 
 ment for a seaman to sell part of the cargo by direction of the mate in order to 
 procure provisions for the vessel, the master being permanently absent. Nor are 
 the crew liable if a slave, who is entered on board as seaman, escapes without 
 their negligence or fault. Carey v. Sch. Kitty, Bee, Adm. 255. 
 ^ The Blake, 1 W. Rob. 73, 87. 
 
 * Sprague v. Kain, Bee, Adm. 184; Humphreys v. Brig America, Bee, Adm. 
 237 ; Macomber v. Thompson, 1 Sumner, 384; The Maria, Blatchf. & H. Adm. 
 331 ; The Moslem, Olcott, Adm. 300; Orne v. Townsend, 4 Mason, 541 ; Mitchell 
 V. The Ship Orozimbo, 1 Pet. Adm. 250 ; Gladding i'. Constant, 1 Sprague, 73. 
 
 * The Ship Mentor, 4 Mason, 84 ; Smith v. Treat, Daveis, 266 ; The Olive 
 Chamberlain, 1 Sprague, 10. 
 
 * Airey v. The Brig Ann C. Pratt, 1 Curtis, C. C. 395, 398. 
 
 * Atkyns v. Burrows, 1 Pet. Adm. 244 ; Thorne v. White, id. 168 ; Black v. 
 The Ship Louisiana, 2 Pet. Adm. 268; Reify. The Ship Maria, 1 Pet. Adm. 186 ; 
 Dixon V. The Ship Cyrus, 2 Pet. Adm. 407 ; Johnson v. The Eliza, U. S. D. C.
 
 96 ON THE LAW OF SHIPPING. [BOOK I. 
 
 an officer to continue in place for a few days, until the master can 
 reach a place more convenient for the exercise of his authority, is 
 not a condonation."^ And if he punishes him severely the forfeit- 
 ure is considered as remitted.^ 
 
 The power of the master to degrade an officer^ or a seaman is 
 limited, and cannot be exercised for trivial offences.* And as the 
 
 Mass., Abbott on Shipping, Am. ed. 652, n. ; The Ship Mentor, 4 Mason, 84 ; 
 Drysdale i'. Schooner Ranger, Bee, Adm. 148. 
 
 ^ The Olive Chamberlain, 1 Sprague, 10. 
 
 - Sprague v. Kain, Bee, Adm. 184 ; Buck v. Lane, 12 S. & R. 266. In The 
 Ship Moslem, Olcott, Adm. 289, 300, Judge Betts said: "The after-submis- 
 sion of the men to the authority of the ship, and return to duty, with the acquies- 
 cence of the master, and their continuing to serve on board until her arrival at 
 Pernambuco, should operate in equity to preserve the wages agreed in the ship- 
 ping articles. I do not hold the transaction an entire condonation of their 
 offence, yet I do not think the master should be allowed to inflict corporeal pun- 
 ishment sufficient to bring the men back to duty, avail himself of their services, 
 and then exact a confiscation of their whole wages for conduct, although highly 
 disorderly and mutinous, yet based upon colorable grounds of wrong towards 
 them, and of right on their part to hold themselves discharged of all obligation to 
 the ship." 
 
 ^ In the case of The Ship Mentor, 4 Mason, 84, 101, Mr. Justice Story said: 
 " I must be permitted to say, that when a man ships in any particular capacity on 
 board a ship, it is not for slight causes that he is to be degraded or compelled to 
 perform other duty. He is not to be subject to the caprice, or distaste, or petu- 
 lance of the master. He stipulates for fair and reasonable knowledge, and due 
 diligence ; but not for extraordinary talents. If he is guilty of fraud or misrepre- 
 sentation he is doubtless subject to all just consequences. But when he acts bond 
 Jide, and is willing to perform his duty, if he should be more tardy in his move- 
 ments than other men, it constitutes no just ground for degradation." See also 
 Atkyns v. Burrows, 1 Pet. Adm. 244, 247. Robinett v. The Exeter, 2 Rob. Adm. 
 261 ; Thompson v. Busch, 4 Wash. C. C. 338. But if an officer or seaman is in- 
 competent he may be disrated. The Elizabeth Frith, Blatchf. & H. Adm. 195, 
 210; The Exchange, id. 366; Morris v. Cornell, 1 Sprague, 62. And a steward 
 may be disrated for embezzling the ship stores. Burton v. Salter, U. S. C. C. 
 Mass., 21 Law Rep. 148. 
 
 * Sherwood v. Mcintosh, Ware, 109. It was held, in this case, that a 
 steward could be degraded for acts of dishonesty or habits of intemperance, 
 but not for a single act of intemperance. In Matern v. Gibbs, 1 Sprague, 158, 
 the shipping articles contained a clause giving the master the absolute right to 
 disrate an officer or seaman, and making his judgment final. The case was decided" 
 on the point that the clause in question, not having been brought to the notice of 
 the seaman, and having been in use only three years, was not binding. The ques- 
 tion whether any length of time or knowledge on the part of the seaman would
 
 CH. XV.] DESERTION OF SEAMEN. ' 97 
 
 power to disrate is remedial only, and not penal, the master can- 
 not degrade a person to the lowest station if there he an inter- 
 mediate one which he is competent to fiU.i But if an officer is 
 promoted during the voyage by the captain, it seems that he may 
 send him back to his former situation for a less offence than he 
 could if he had originally been shipped for the higher station. ^ 
 And as the master lias no right to degrade an officer where no 
 offence has been committed, so he has no right to order him to do 
 the duties of a seaman as a punishment, if no offence has been 
 committed which would justify it.^ 
 
 SECTION IX. 
 OF THE DESERTION OF SE.\MEN. 
 
 Desertion is an offence which it is of great importance to 
 prevent, as otherwise a ship, with all her cargo, might be left 
 unmanageable.* It is distinguished from absence without leave, 
 by the intention not to return.'^ But it is desertion to refuse to 
 
 prevent the court from inquiring into the justness or reasonableness of the clause 
 was not passed on. 
 
 1 Smith r. Jordan, U. S. C. C. Mass., 1857, 21 Law Rep. 204. It was held, 
 in this case, that a cooper could not be disrated and ordered to do the duty of a 
 foremast hand, but he should be first tried as cooper's mate. 
 
 ' Wood V. The Nimrod, Gilpin, 83. 
 
 ' Foye V. Leckie, 1 Sprague, 210. In this ciise the master found fault with the 
 second mate for the manner in which he had sewed a rope upon an old sail, and 
 ordered him as a punishment to slush the mast, and, on refusal, to furl the light 
 sails. He refused to do these things, and was put in irons. Held, that the master 
 had no right to imprison him. 
 
 * The master may inflict reasonable punishment for the offence of desertion. 
 Per Sprague, J., in United States v. Alden, 1 Sprague, 95, 96. 
 
 * Cloutman v. Tunison, 1 Sumner, 373, 375; Coffin v. Jenkins, 3 Story, 108 > 
 Spencer v. Eustis, 21 Maine, 519; The Rovena, Ware, 309; The Brig Cadmus 
 V. Matthews, 2 Paine, C. C. 229 ; Borden v. Hiern, Blatchf & H. Adm. 293 ; The 
 Union, id. 545, 552 ; Ship Union v. Jansen, 2 Paine, C. C. 277; The Westmor- 
 land, 1 W. Rob. 216; The Two Sisters, 2 W. Rob. 125. In The Westmorland, 
 it was held that the going on shore without leave, to seek advice as to the effect 
 of the articles, was not a desertion by the maritime law. So it has been uniformly 
 held that it is not desertion for the seamen to leave the vessel, against orders, 
 to go before the consul at a foreign port, to complain of their treatment. Free- 
 man V. Baker, Blatchf. & H Adm. 372; Hart v. The Brig Otis, Crabbe, 52. 
 
 VOL. II. 7
 
 98 ON THE LAW OF SHIPPING. [BOOK I. 
 
 return when ordered, after an absence without leave,^ or other 
 temporary separation ; as by capture, or wreck.^ If, during a 
 collision between two vessels, a seaman, under the impression that 
 his own vessel is sinking, jumps on board another, he is not 
 guilty of desertion.^ Desertion is justified, or rather it is not 
 desertion, when the vessel is left for good cause, as a change 
 of the voyage without consent,* cruelty,^ insufficient pro- 
 
 The Act of 1840, c. 48, § 16, 5 U. S. Stats, at Large, 396, provides that "the 
 crew of any vessel shall have the fullest liberty to lay their complaints before 
 the consul or commercial agent in any foreign port, and shall in no respect 
 be restrained, or hindered therein by the master or any officer, unless some 
 sufficient and valid objection exist against their landing ; in which case, if 
 any mariner desire to see the consul or commercial agent, it shall be the duty 
 of the master to acquaint him with it forthwith ; stating the reason why the 
 mariner is not permitted to land, and that he is desired to come on board ; where- 
 upon it shall be the duty of such consul or commercial agent to repair on board, 
 and inquire into the causes of the complaint, and to proceed thereon as this act 
 directs." In Morris v. Cornell, 1 Sprague, 62, 65, Judge Sprague said of this act: 
 " It may be called the habeas corpus of the seaman, and the court will carefully 
 and vigorously guard its inviolability." The right of the seaman under this act to 
 lay his complaints before the consul has been held to extend only to those com- 
 plaints over which the consul has jurisdiction, as where the seaman is detained 
 contrary to his agreement, or after he has fulfilled it, or where the vessel is unsea- 
 worthy, but not to a case of complaint by the seamen that they are badly treated. 
 But even if they have a right to see the consul, they cannot refuse to attend to 
 duty at any moment until they have seen him, unless such refusal is absolutely 
 necessary to prevent the loss of that right. The master is to be allowed some 
 discretion as to the time and mode of landing. Jordan v. Williams, 1 Curtis, C. 
 C. 69. But see Knowlton i\ Boss, 1 Sprague, 163. 
 
 1 The Bijlmer, 1 Hagg. Adm. 163 ; Piehl v. Balchen, Olcott, Adm. 24. 
 
 - Boardman v. The Brig Elizabeth, 1 Pet. Adm. 128. 
 
 * Hanson v. Rowell, 1 Sprague, 117. 
 
 * The Cambridge, 2 Hagg. Adm. 243 ; Moran v. Baudin, 2 Pet. Adm. 415 ; In- 
 graham V. Albee, Blatchf & H. Adm. 289 ; United States v. Matthews, 2 Sum- 
 ner, 470. See also cases ante, p. 36, note 3. But the crew are not justified in 
 such a case in seizing the vessel and bringing it home. The Mary Ann, Abbott, 
 Adm. 270. 
 
 » The Minerva, 1 Hagg. Adm. 347, 368; Limland v. Stephens, 3 Esp. 269; 
 Prince Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205 ; Ward v. 
 Ames, 9 Johns. 138; Relf v. The Ship Maria, 1 Pet. Adm. 186, 193; Rice v. 
 The Polly & Kitty, 2 id. 420 ; Sherwood v. Mcintosh, Ware, 1 09 ; The America, 
 Blatchf. & H. Adm. 185. In Steele v. Thatcher, Ware, 91, 94, Judge Ware 
 said : " I am, as at present advised, far from being prepared to hold that a battery, 
 simply because it is excessive, will be a justification, even though it should pass
 
 CH. XV.] DESERTION OF SEAMEN. 99 
 
 visions,! or unseaworthiness of the ship.^ It has been held that 
 if desertion is attempted to be justified on the ground that the 
 deserter was a negro, and that the captain threatened to sell 
 him as a slave, it must be averred that the place where the 
 threat was to be executed was one where slaves could be sold.^ 
 If the seamen returns after desertion, and is received by the 
 master or by the owner, this is a condonation of the offence and 
 a waiver of the forfeiture ; "* and it has this effect even if there 
 be a clause to the contrary in the shipping articles.^ He must be 
 received if he offer to return in a proper way, and within a reason- 
 able time, before any other person is engaged to take his place.^ 
 If he desert before the voyage begins, by not rendering himself on 
 board, he forfeits the advance wages and an equal sum in addi- 
 
 very considerably beyond the limits of a moderate discretion. As a general 
 rule, it seems to me that another ingredient should enter into the case. The 
 seaman who proposes, on this ground, to justify a desertion, should not only ex- 
 hibit proof of the injury, but a just and reasonable ground of apprehension that 
 it would be causelessly repeated, either by showing a general disposition to 
 cruelty on the part of the master, or the existence of some particular pique 
 or malevolence toward him personally." See also Magee v. The Moss, Gilpin, 
 219, 228. 
 
 ' If no provisions at all are provided, then it is clear that a desertion for this 
 cause is justifiable. The Castalia, 1 Hagg. Adm. 59; The Eliza, id. 182, 186; 
 Dixon V. The Ship Cyrus, 2 Pet. Adm. 407. See also Sigard v. Roberts, 3 Esp. 
 71. But to justify a desertion on account of bad provisions, it must be shown that 
 the food is not merely not of the best, but positively bad and unfit for the support 
 of the crew. Ulary v. The Ship Washington, Crabbe, 204. 
 
 ^ In Savary v. Clements, 8 Gray, 155, an action was brought by a seaman for 
 work and labor done, etc. The defence was desertion. On the trial it appeared 
 that the ship was unseaworthy, and the court held that the plaintiff was entitled 
 to recover. See also Bray v. Ship Atalanta, Bee, Adm. 48 ; Bucker v. Klerkgeter, 
 Abbott, Adm. 402 ; and cases ante, p. 78, note 1. 
 
 ' Prince Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205. 
 
 * Miller v. Brant, 2 Camp. 590 ; Beale v. Thompson, 4 East, 546 ; Train v. 
 Bennett, 3 Car. & P. 3 ; Whitton v. The Brig Commerce, 1 Pet. Adm. 160 ; 
 Cloutman v. Tunison, 1 Sumner, 373; Austin v. Dewey, 1 Hall, 238; Ship 
 Elizabeth i-. Bickers, 2 Paine, C. C. 291 ; Ingraham v. Albee, Blatchf. & H. 
 Adm. 289. 
 
 * Lang V. Holbrook, Crabbe, 1 79 ; Freeman i'. Baker, Blatchf. & H. Adm. 
 372. 
 
 * The Rovena, Ware, 309, 320 ; Cloutman v. Tunison, 1 Sumner, 373 ; Coffin 
 V. Jenkins, 3 Story, 108, 119 ; The Quintero, U. S. D. C. Mass., Lowell, J., Jan. 
 1866. See also cases ^Oi<.
 
 100 ON THE LAW OF SHIPPING. [BOOK I. 
 
 tion ;^ or if he deserts at any time after signing a contract to per- 
 form a voyage, lie may be apprehended under the warrant of a 
 justice, and compelled forcibly to go on board ; - but if this be 
 done the forfeiture is waived.^ It has, however, been held, that 
 receiving a seaman on board after the proper time is no waiver of 
 the penalty.* And for such desertion he forfeits all his wages, and 
 all his property on board the ship, unless he is received again on 
 board, and he is liable to pay all damages and costs sustained by 
 the owner in hiring another seaman iji his place.^ 
 
 * The secotid section of the Act of 1700, c. 29, 1 U. S. Stats, at Large, 131, 
 provides that if the mariner shall neglect to render himself on board at the time 
 mentioned in the contract, and if the master, or other officer, shall, on that day, 
 make an entry in the log-book of the name of the mariner, and the time that he neg- 
 lected to render himself (after the time appointed) ; such mariner shall forfeit for 
 every hour which he shall so neglect to render himself, one day's pay according to 
 the rate agreed upon, to be deducted out of his wages. And if he shall not render 
 himself on board at all, or, after he is on board, shall desert, then he forfeits the 
 advance wa^-es, and an equal sum in addition. See Cotel v. Hilliard, 4 iVIass. 664. 
 
 ^ Act of 1790, c. 29, § 7, 1 U. S. Stats, at Large, 134. It is provided by this 
 section that if the seaman, Avho has signed a contract to jierform tlie voyage, shall 
 desert, or absent himself without leave, any justice of the peace within the United 
 States may, upon the complaint of the master, issue his warrant to apprehend the 
 deserter and bring him before hira, and if it shall then appear that he had signed 
 the contract and that the voyage is not finished, altered, or the contract otherwise 
 dissolved, the justice shall commit him to the house of correction or common jail 
 of the town, there to remain until the vessel is ready to sail, or the master requires 
 his discharge, etc. The Act of 1842, c. 188, § 1, 5 U. S. Stats, at Large, 516, ex- 
 tended somewhat the powers above set forth to United States commissioners. It 
 has been held that justices of the peace alone have the power to try and commit 
 desertinof seamen, and that commissioners of the United States can onlj' arrest and 
 commit them for trial. Ex parte Crandall, 2 Calif 144. If the voyage is broken 
 up by a disaster, while a deserter is imprisoned, he must be discharged. Sims v. 
 Sundry Mariners, 2 Pet. Adm. 393 ; Bray v. Ship Atalanta, Bee, Adm. 48. Pro- 
 ceedings under this act must be in the name of the United States of America, and 
 the act does not apply to foreign seamen on board of foreign ships. Ex parte 
 D'Olivera, 1 Gallis. 4 74. 
 
 ^ Bray v. Ship Atalanta, Bee, Adm. 48 ; Brower v. The Maiden, Gilpin, 294; 
 Sherwood i'. Mcintosh, Ware, 109, 118. See also cases ante, p- 91, note 2. 
 
 * Malone v. Brig Mary, 1 Pet. Adm. 139. 
 
 « The fifth section of the Act of 1790, c. 29, § 5, 1 U. S. Stats, at Large, 133, 
 provided that if the seaman absented himself without permission, and the specified 
 entry was made thereof in the log-book, if he should return to duty within forty- 
 eight hours, he should forfeit three days' pay for every day he was absent, but if 
 he should be absent for a longer time he should forfeit all the wages due, all his
 
 CII. XV.] DESERTION OF SEAMEN. 101 
 
 Provision has also been made for the apprehension and delivery 
 of deserters from certain foreign vessels in the ports of the United 
 States. By the Act of 1829/ " On application of a consul or vice 
 consul of any foreign government having a treaty with the United 
 States stipulating for the restoration of seamen deserting, made in 
 writing, stating that the person therein named has deserted from 
 a vessel of any such government while in any port of the United 
 
 property on board or lodged in any store at the time of the desertion, to tiie use 
 of the owners of the ship, and should pay them all damages they might sustain by 
 being obliged to hire other seamen in his place. This has been materially changed 
 by the twenty-fifth section of the Act of 1856, c. 127, 11 U. S. Stats, at Large, 62, 
 which provides tliat in case of desertion in a foreign country, the fact and the 
 date thereof shall be noted by tlie master or commander on the list of the crew, 
 and the same shall be officially authenticated at the first port or place of consulate 
 or commercial agency visited after such desertion, and if there shall be no port 
 visited where there is such an agency, or if the desertion occurred in this country, 
 the fact and time of such desertion shall be officially authenticated before a 
 notary-{)ublic immediately at the first port or place where such vessel shall arrive 
 after such desertion. The wages of the seaman, and his interest in the cargo if 
 any, are forfeited to the use of the United States, and are to be paid over to the 
 collector of the port where the crew are to be accounted for. The owners of the 
 vessel may deduct any expenses they have necessarily incurred in consequence of 
 such desertion, and money actually paid, or goods at a fair price supplied, or 
 expenses incurred to or for such seaman. By the general maritime law desertion 
 is a forfeiture of wages. Ord. Wisbuy, art. 61 ; Hanse Towns, art. 53; 2 Molloy, 
 c. 3, § 10; Cloutman v. Tunison, 1 Sumner, 373; Coffin r. Jenkins, 3 Story, 108; 
 The Rovena, Ware, 309; Spencer y. Eustis, 21 Maine, 519; The Brig Osceola, 
 Olcott, Adm. 450, 461 ; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229 ; The 
 Baltic Merchant, Edw. Adm. 86 ; The Pearl, 5 Rob. Adm. 224. But the court 
 is not obliged to pronounce an entire forfeiture in all cases, but may take into 
 consideration palliating circumstances not amounting to an excuse. GifTord v. 
 Eolloch, U. S. D. C. Mass., 19 Law Rep. 21; Lovrein v. Thompson, 1 
 Sprague, 355 ; Swain v. Ilowland, 1 Sprague, 424. If a minor is shipped on a 
 •whaling voyage by his father, and, after serving several years, deserts after having 
 become of age, the father is entitled to his wages earned during his minority. 
 Coffin V. Shaw, U. S. D. C. Mass., 19 Law Rep. 146, affirmed in Circuit 
 Court, 21 Law Rep. 463. So the minor, if he ships after the death of his 
 father, may avoid the contract by deserting, and recover on a quantum meruit. 
 Vent V. Osgood, 19 Pick. 572. And if he ships during the lifetime of his father, 
 and then deserts, his father may recover for his services prior to the desertion. 
 Bishop V. Shepherd, 23 Pick. 492 ; Lovrein v. Thompson, 1 Sprague, 355. See 
 ante, p. 11, n. 1 ; p. 58, n. 1, and post. Book IL, c. 12. If there be a series of 
 voyages, wages earned in one will not be forfeited by a desertion in a subsequent 
 voyage. Piehl v. Balchen, Olcott, Adm. 24. 
 1 Ch. 41, 4 U. S. Stats, at Large, 359.
 
 102 ON THE LAW OF SHIPPING. [BOOK 1. 
 
 States, and on proof by exhibition of the register of the vessel, 
 ship's roll, or other official document, that the person named be- 
 longed, at the time of desertion, to the crew of said vessel, it shall 
 be the duty of any court, judge, justice, or other magistrate, having 
 competent power, to issue warrants to cause the said person to be 
 arrested for examination ; and if on examination the facts stated 
 are found to be true, the person arrested not being a citizen of the 
 United States, shall be delivered up to the said consul or vice 
 consul, to be sent back to the dominions of any such government, 
 or, at the request, and at the expense, of the said consul or vice 
 consul, shall be detained until the consul or vice consul finds 
 an opportunity to send him back to the dominion of any such 
 government. Provided, nevertheless, that no person shall be 
 detained more than two months after his arrest ; but at the end of 
 that time shall be set at liberty, and shall not be again molested 
 for the same cause. And provided, further, that if any such 
 deserter shall be found to have committed any crime or offence, 
 his surrender may be delayed until the tribunal, before which the 
 case shall be depending, or may be cognizable, shall have pro- 
 nounced its sentence, and such sentence shall have been carried 
 into effect." 
 
 It has been held that this act does not confer any power upon 
 State officers, but only upon courts and officers of the United 
 States.^ The true rule, however, seems to be that although the 
 Federal government has no power to impose on a State officer, as 
 such, any duty whatever, and compel him to perform it, yet it 
 may authorize him to perform a particular duty, which, if not for- 
 bidden to do by the State government, he may then legally 
 perform. 2 
 
 By statute, desertion seems to be defined as an " absence from 
 the ship for more than forty-eight hours without leave." ^ And 
 
 ^ In re Bruni, 1 Barb. 187. It was also said that it must be alleged that the 
 desertion was from the vessel while it was "in a port of the United States." 
 
 - See Kentucky i'. Dennison, 24 How, 107, 108. 
 
 ^ Act of 1790, c. 29, § 5. An important question has arisen in regard to the 
 construction of this act. On the one hand it has been held, that as the statute 
 defines the offence of desertion, and provides the method by which it is to be 
 proved, there can be no forfeiture of wages by the maritime law. This was the 
 view taken by the District Court for the Southern District of New York in 
 numerous cases. See the Cadmus, Blatchf. & H. Adm. 139 ; The Martha, id.
 
 CH. XV.] DESERTION OF SEAMEN. 103 
 
 there must be an exact entry of tlie fact on the log-book setting 
 forth the circumstances, made on the day when the absence be- 
 gins ; 1 and it must be a continued absence for forty-eight suc- 
 
 151; The Elizabeth Frith, id. 195; The Union, id. 545, 555. The same view- 
 seems to have been taken in the Eastern District of Pennsylvania. See Wood v. 
 The Nimrod, Gilpin, 83 ; Snell v. The Independence, id. 140 ; Knagg v. Gold- 
 smith, id. 207. See also The Schooner Phcebe v. Dignum, 1 Wash. C. C. 48 • 
 Brig Betsey v. Duncan, 2 Wash. C C. 272; Herron v. Schooner Pego-y, Bee, 
 Adm. 57. On the other hand Mr. Justice Story, in Cloutman v. Tunison, 1 
 Sumner, 373, 380, speaking of this act, said: " But, inasmuch as such prolonged 
 absence might endanger the safety of the ship, or the due progress of the voyao^e, 
 it deems forty-eight hours' absence without leave, to be ipso facto a desertion, and 
 inflicts upon it a total forfeiture of wages. It thus creates a statute desertion, and 
 makes that conclusive evidence of the fact, which would, upon the common prin- 
 ciples of the maritime law, be merely presumptive evidence of it. It does not 
 supersede the general doctrine of the maritime law, or repeal it; but merelv in a 
 given case applies a particular rule in juetiam, leaving the maritime law in all 
 other cases in full efficiency." Although these remarks are to a great extent 
 obiter, there being neither maritime nor statutable desertion in that case, yet the 
 doctrine therein contained was fully sustained by the same learned judo-e in a 
 subsequent case, Coffin v. Jenkins, 3 Story, 108, and it may now be considered 
 as the settled construction. See The Brig Cadmus v. Matthews, 2 Paine, C. C. 
 229 ; Barton v. Salter, U. S. C. C. Mass., 21 Law Rep. 148 ; Ship Union v. 
 Jansen, 2 Paine, C. C. 277 ; The Rovena, Ware, 309. The Brig Osceola, Olcott, 
 Adm. 450, 461. If a seaman remains on shore more than forty-eight hours with- 
 out leave, seeking redress before a public tribunal for an assault committed on 
 board the vessel, it would seem that he could not be treated as a deserter. Sher- 
 wood V. Mcintosh, Ware, 109. 
 
 » Act of 1790, c. 29, § 5, 1 U. S. Stats, at Large, 100. In Cloutman v. Tunison, 
 1 Sumner, 373, 381, Mr. Justice Story said : "To work the statute forfeiture, it is 
 made an indispensable condition that the mate, or other officer having charge of 
 the log-book, should make an entry therein of the name of such seaman, on the 
 day on which he should so absent himself; and the entry must not merely state 
 his absence, but that he is absent without leave. The entry on the very day is, 
 therefore, a sine qua. non." See also Spencer v. Eustis, 21 Maine, 519 ; The 
 Schooner Phoebe v. Dignum, 1 Wash. C. C. 48 ; Brig Betsey v. Duncan, 2 id- 
 272; The Brig Cadmus v. Matthews, 2 Paine, C. C. 229; The Rovena, Ware, 
 309, 312 ; Lord v. Kimball, Sup. Jud. Ct. Mass., 1804, Abbott on Shipping, Am. 
 ed. 648, n; The Cadmus, Blatchf. & H. Adm. 139; The Martha, id. 151; The 
 Union, id. 545 ; Wood v. The Nimrod, Gilpin, 83 ; Snell v. '^'he Independence, 
 id. 140 ; Knagg v. Goldsmith, id. 207 ; Magee v. The Moss, id. 219 ; Hunt v. The 
 Brig Otis, Crabbe, 52; Bray w. Ship Atalanta, Bee, Adm. 48 ; Herron v. Sch. 
 Peggy, id. 57. In Ulary v. The Ship Washington, Crabbe, 204, the entry in the 
 log-book on the day the men left was " they ran away," and on subsequent days, 
 " absent without leave." Held, that the latter entries were explanatory of the
 
 104 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ccssive hours. 1 But where the absence without leave, and with- 
 out good cause, does not come within the terms of this definition, 
 it is undoubtedly still an offence, punishable as such, and makes 
 the seamen responsible in damages for the consequences.^ It 
 
 first, and sufficient. But see The Rovena, Ware, 309, 313. In The Hercules, 1 
 Sprague, 534, the entry was, "May 16th, Aleck and William absconded, and de- 
 fied us." " May 1 7th, men still away." This was held not sufficient, because the 
 men might have been away on both days without being absent forty-eight hours. 
 The entry is necessary although the absence is permanent. Knagg v. Goldsmith, 
 supra. The entry in the log is not conclusive, and parol evidence is admissible to 
 falsify it. Malone v. The Brig Mary, 1 Pet. Adra. 139, 140 ; Whitton v. The Brig 
 Commerce, id. 160; Jones v. The Brig Phoenix, id. 201 ; Thompson v. The Ship 
 Philadelphia, id. 210; The Rovena, Ware, 309, 312; Orne v. Townsend, 4 
 Mason, 541 ; The Hercules, 1 Sprague, 534. The question has arisen, in the 
 case where a seaman goes on shore without leave, and the ship sails before the 
 expiration of the forty-eight hours, whether this amounts to a statute desertion, 
 lie being unable to return to the ship. Mr. Justice Story, in Coffin v. Jenkins, 3 
 Story, 108, 113, speaking of this said : " In short, the argument went to this, that 
 it was not a desertion at all, either by the maritime law or under the statute, 
 unless at the time of the seaman's leaving, he left it with the intent absolutely to 
 desert, or animo non revertendi. To this doctrine I cannot, in any manner, sub- 
 scribe. I understand the statute to declare, that an absence from on board the 
 ship without leave, is a forfeiture of his wages, and a desertion, unless he actually 
 rejoins the ship within forty-eight hours ; and that it is at his own peril, under 
 such circumstances, to absent himself; and if he is unable to rejoin the ship within 
 the forty-eight hours, the forfeiture is complete and absolute. The ship is not 
 bound to wait for him ; but he is bound to rejoin the ship within that period, suo 
 perlcitlo." This language would clearly seem to embrace the case of a seaman 
 leavintT the ship without leave, but with no intention of deserting. To this extent 
 the remarks are obiter, for, in Coffin v. Jenkins, the seaman left animo non rever- 
 tendi. In The Union, Blatchf & H. Adm. 545, 559, Judge Betls held, that where 
 the seamen left, intending to return, if the ship sailed before the expiration of 
 forty-eight hours, their wages were not forfeited. But this ruling was reversed 
 on appeal. Ship Union v. Jansen, 2 Paine, C. C. 277. If the return is prevented 
 by the act of the captain, they are entitled to their wages. The Westmorland, 1 
 W. Rob. 216. If seamen, who are absent without leave, attempt to return to the 
 ship at night without saying who they are, or what they want, this is not a return 
 which will remit the forfeiture. Ulary v. The Ship Washington, Crabbe, 204. 
 See also Allen v. Hallet, Abbott, Adm. 573. So, if they return, but refuse to do 
 duty. The return must be unconditional. The Brig Cadmus v. Matthews, 2 
 Paine, C C. 229. 'See also The Ship Philadelphia, Olcott, Adm. 216. 
 
 1 The Rovena, Ware, 309, 318 ; The Cadmus, Blatchf. & H. Adm. 139 ; Borden 
 V. Hiern, id. 298. 
 
 ' In Cloutman v. Tunison, 1 Sumner, 373, a desertion was not proved, but the 
 second mate was absent without permission during the unlivery of the ship, and a
 
 CH. XV.] DESERTION OF SEAMEN. 105 
 
 seems, however, that if the desertion takes place before the vessel 
 is moored on her arrival at the end of the voyage, it is a statute 
 desertion, working a forfeiture;^ but if it occurs after she is 
 moored, and before the full unlivery of the cargo or the discharge 
 of the crew, it is not a desertion under the law merchant,^ but 
 gives to the ship-owner his claim for compensation in damages.^ 
 A desertion of a part of the crew does not exonerate the remainder 
 from their obligation to perform their duties, although it may 
 make these duties more onerous.^ And it is no justification for a 
 desertion that the crew were ordered to work on Sunday.^ 
 
 forfeiture of two months' wages was decreed. See also The Rovena, Ware, 309, 
 317; Snell v. The Brig Independence, Gilpin, 140 ; Knagg v. Goldsmith, id. 207, 
 217; Lang v. Ilolbrook, Crabbe, 179 ; The Ship Thiladelphia, Olcott, Adra. 216 ; 
 Herron i'. Schooner Peggy, Bee, Adm. 57; The Martha, Blatchf. & H. Adm. 
 151 ; Jansen v. The Heinrich, Crabbe, 226. In Turner's Case, Ware, 83, it was 
 held that the master might retake the person so leaving and confine him on board, 
 although it was in a home port. 
 
 1 The Pearl, 5 Rob. Adm. 224 ; The Baltic Merchant, Edw. Adm. 86. 
 
 * Hastings v. The Ship Happy Return, 1 Pet. Adra. 253 ; Cloutman v. Tunison, 
 
 1 Sumner, 373 ; Francis v. Bassett, 1 Sprague, 16 ; The Ship Elizabeth v. Rickers, 
 
 2 Paine, C. C. 291 ; The Martha, Blatchf. & H. Adm. 151,157; Granon v. Harts- 
 home, id. 454 ; Knagg v. Goldsmith, Gilpin, 207 ; Jansen v. The Heinrich, 
 Crabbe, 226; Herron v. Schooner Peggy, Bee, Adm. 57. See also Frontine v. 
 Frost, 3 B. & P. 302 ; M'Donald v. Joplin, 4 M. & W. 284 ; The Two Sisters, 2 
 W. Rob. 125. See contra, Webb v. Duckingfield, 13 Johns. 390. 
 
 * See eases supi-a, p. 104, note 2. This was claimed in Francis v. Bassett, 1 
 Sprague, 16, but refused on the ground that the seaman was suflfering from disease 
 to the extent which should excuse him from the performance of a contract for 
 personal service. 
 
 * See aiile, p. 43, note 1. 
 
 ^ Ulary v. Ship Washington, Crabbe, 204.
 
 106 ON THE LAW OF SHIPPING. [BOOK 1. 
 
 CHAPTER XVI 
 
 OF PILOTS. 
 
 SECTION I. 
 
 WHO PILOTS ARE AND WHAT THEIR DUTIES ARE. 
 
 This word had formerly, and now has, perhaps, in some of the 
 countries of Europe, two meanings : one was the pilot for the 
 whole voyage, or the sea pilot,i the other is the pilot who carried 
 the ship out of or into the harbor to which the pilot belonged, or 
 the coast pilot. But it is in the latter sense that the word is gen- 
 erally used with us. A pilot is for many purposes considered as 
 a mariner or seaman ,2 but has duties and rights which are quite 
 peculiar to him. The office is one of so much importance that it 
 •is regulated by law in most civilized countries. In this country, 
 an act of Congress^ expressly authorizes the several States to 
 make their own pilotage laws ; and questions under these laws 
 are cognizable in the State courts.'* The law of 1789 provides 
 
 ' L'Ord. de la Mai-ine, liv. 2, tit. 4. See also Keeler v. Fireman's Ins. Co. 3 
 Hill, 250 ; Steamship Co. v. Joliffe, 2 Wall. 450. 
 
 - Ross V. Walker, 2 G. Wilson, 264 ; The Anue, 1 Mason, 508 ; Hobart v. 
 Drogan, 10 Pet. 108. 
 
 « Act of 1789, c. 9, § 4, 1 U. S. Stats, at Large, 54. By the Act of 1837, 
 c. 22, 5 U. S. Stats, at Large, 153, the master of any vessel coming into or 
 going out of any port situate upon waters which are the boundar}' between two 
 States, may employ a pilot duly licensed by either State. 
 
 * In The Wave, Blatchf. & H. Adm. 235, it was held that the United States 
 courts had concurrent jurisdiction with the State courts to entertain suits for 
 pilotage. On appeal the decision was reversed, on the ground that the act of 
 Congress which adopted the State laws, was passed prior to the passage of the 
 Judiciary Act, and that cases of pilotage was therefore not embraced in the 
 general delegation of admiralty jurisdiction to the district courts. Schooner 
 Wave V. Hyer, 2 Paine, C. C. 131. See also Marshall, C. J., in Gibbons v. 
 Ogden, 9 Wheat. 1, 207; Low v. Commissioners of Pilotage, R. M. Charlt. 302, 
 314. But in Hobart v. Drogan, 10 Pet. 108, Mr. Justice Story held that the 
 United States courts had a concurrent jurisdiction with the State courts, although
 
 CH. XVI.] WHO PILOTS ARE AND WHAT THEIR DUTIES. 107 
 
 that pilots shall be governed by the existing laws of the States, 
 and also by future laws, " until further legislative provision shall 
 be made by Congress." Since this act was passed, the several 
 States have enacted new laws, or modified the old laws to a great 
 extent. If the power to regulate commerce belongs exclusively 
 to Congress l)y the Constitution, Congress has no power to dele- 
 gate that power to the several States, though it may adopt the 
 acts which they have already passed, and they then become of 
 force. But they are then acts of Congress and cannot be changed 
 by the States, unless Congress has the power to adopt prospec- 
 tively subsequent State laws. But 3IarshaU, C. J., in one case,^ 
 declared that Congress cannot enable a State to legislate. We 
 are, therefore, driven to the alternative, that either all the pilot 
 acts passed by the several States since 1789 are void, or that the 
 States have concurrent jurisdiction over the subject. And this 
 latter view has been adopted by the Supreme Court of the United 
 States.2 The act of Congress of 1852, c. 106,^ which we give 
 in the Appendix, has been held by a divided court to apply merely 
 to sea pilots and not to port pilots.* The State statutes differ 
 somewhat ; and we give in the Appendix the principal provisions 
 enacted by pilot commissioners in pursuance of the power given 
 them by the statutes of New York and Massachusetts, to one or 
 
 the pilot's compensation was established by the law of the State in which the 
 action was brought. See also The Anne, 1 Mason, 508 ; Dexter v. The Bark 
 Richmond, U. S. D. C. Mass., 4 Law Rep. 20. The State laws are entitled 
 to a liberal construction, as they are especially designed to promote the interests 
 of commerce, and to protect the lives and property of the citizens engaged in it. 
 Smith V. Swift, 8 Met. 332. 
 
 1 Gibbons v. Ogden, 9 Wheat. 1, 218. 
 
 " Cooley V. The Board of Wardens of the Port of Philadelphia, 12 How. 299. 
 Mr. Justice Curlis, in delivering the opinion of the court, said: "It is the opinion 
 of the majority of the court that the mere grant to Congress of the power to regu- 
 late commerce, did not deprive the States of the power to regulate pilots, find 
 that although Congress has legislated on this subject, its legislation manifests an 
 intention, with a single exception, not to regulate this subject, but to leave its 
 regulation to the several States. To these precise questions, which are all we are 
 called on to decide, this opinion must be understood to be confined." Mr. Justice 
 Wayne delivered a very able dissenting opinion, which is worthy of an attentive 
 perusal. See Steamship Co. v. Joliffe, 2 Wallace, 450. 
 
 » 10 U. S. Stats, at Large, 61. 
 
 * Steamship Co. v. Joliffe, 2 Wallace, 450.
 
 108 ON THE LAW OF SHIPPING. [BOOK I. 
 
 other of which those of the other States generally conform.^ It 
 will ])e seen that no persons can act as pilots, but those who are 
 regularly commissioned. 
 
 It is true that any person may undertake to guide his own or 
 another's vessel anywhere, but he cannot claim the compensation 
 allowed by law for this service unless he be duly appointed ; nor 
 can he claim any compensation for the service if he falsely pre- 
 tended to have a commission, or as it is technically termed, a 
 branch, and obtains the direction of the ship by this pretence ; 
 but he is liable not only civilly in damages, but criminally for any 
 losses or injuries resulting from his falsehood. Every pilot should 
 always have with him the evidence of his authority ; for tliis des- 
 ignates the kind of vessel he may undertake to pilot.^ Of course 
 it is easy to pilot a vessel in proportion as she draws less water, 
 and difficult as she draws more. Therefore those who have been 
 in the service but a certain time, can pilot only the lightest vessels, 
 up to a certain limit ; as they have more experience and skill, they 
 are authorized to take charge of larger vessels ; and their authority 
 increases with their experience according to defined and estab- 
 lished rules, until they may pilot vessels of any size. 
 
 No vessel is bound to take on board a pilot, either going in or 
 coming out of a harbor ; but if a pilot offers and is ready, the ship 
 must pay pilotage fees, whether he is taken on board or not.^ And 
 it has been held that this right is so far in the nature of a con- 
 tract that it is not lost by the repeal of the law granting it, after 
 the right has accrued.* But the pilot cannot proceed in admiralty 
 
 ^ For decisions under the State statutes, see Tilley v. Farrow, 14 Mass. 17; 
 Ayres v. Knox, 7 Mass. 306; Shepherd v. Mitchell, 10 Johns. 112; Heridia w. 
 Ayres, 12 Pick. 334 ; Hunt v. Card, 14 Pick. 135 ; and cases i7ifra. 
 
 ^ Hammond v. Blake, 10 B. & C. 424; Commonwealth v. Ricketson, 5 Met. 
 412, 426. 
 
 ^ Nickerson v. Mason, 13 Wend. 64 ; Commonwealth v. Ricketson, 5 Met. 412 ; 
 Smfth V. Swift, 8 id. 329 ; Martin v. Hilton, 9 id. 371 ; Hunt v. Mickey, 12 id. 
 346 ; Hunt v. Carlisle, 1 Gray, 257 ; Gerrish v. Johnson, 1 Jones, N. C. 335 ; Beck- 
 with V. Baldwin, 12 Ala. 720. But if he offers himself and is refused, he cannot 
 maintain an action for work and labor done. Donaldson v. Fuller, 3 S. & R. 505. 
 See also the remarks of Shaw, C. J., in Winslow v. Prince, 6 Cush. 368, 370. 
 The master is bound to approach the pilot ground carefully, and if in the night, 
 he must hold out a light, and wait a reasonable time for a pilot, and approach one 
 if he can do so with safety. Bolton v. American Ins. Co. 3 Kent's Com. 176 
 n. (a). See Van Syckel v. The Ewing, Crabbe, 405. 
 
 * Steamship Co. v. Joliffe, 2 Wallace, 450.
 
 CH. XVI.] WHO PILOTS ARE AND WHAT THEIR DUTIES. 109 
 
 for the penalty provided by statute in case of the refusal of the 
 vessel to employ him, by a suit in rem,'^ unless the State law gives 
 a lien.'*^ If the pilot refuses to direct the course of the vessel for 
 good reasons, or because the state of the tide or of the wind or 
 weather would endanger the sliip if she attempted egress or in- 
 gress, but offers to wait until she can move in safety, and then 
 pilot her, we should liold this not as a refusal, but as an offer on 
 the part of the pilot, and therefore as entitling him to claim the 
 fees. 
 
 It is not necessary, to constitute " a valid offer of his services," 
 that the pilot should go on board, and tender them to the master. 
 If he hail the vessel when the pilot-boat is so near, and in such 
 a position, that the hail was heard on board the ship, or might 
 have been if the officers and crew had been on duty, this is suf- 
 ficient.^ 
 
 ^ The Robert J. Mercer, 1 Sprague, 284. In The George Law, U. S. D. C. 
 New York, 6 Am. Law Reg. 368, the libel set forth an ofTer to perlbrni pilotage 
 services to the steamer George Law, a refusal by the master to accept the ser- 
 vices, an allegation that the libellant became entitled by law to demand and 
 receive from the master and owner the sum of S 39.65, and that the sum though 
 demanded had not been paid. Attachment was prayed against the ship. The 
 owner of the ship intervened and excepted to the libel on these grounds : 1. That 
 the libel and the matters therein set forth are not sufficient in law to constitute a 
 lien upon the ship ; 2. That the lien docs not state any service rendered to the 
 ship, which constitutes a lien ; and 3. That the libel claims a penalty, and that 
 the claim is not within the jurisdiction of the court. It appears from the decision 
 of Judge Bells, that the State law did not give a lien on the vessel to enforce the 
 penalty, and he held that a suit in rem could not be maintained. The opinion closes 
 with this sentence : " Besides, this libel is in personam only. It does not charfre a 
 liability of the ship to the claim, and although it prays process and a decree 
 against her therefor, there is no averment of a lieu which would entitle the libel- 
 lant to take a decree in condemnation of the ship. The exceptive allegations to 
 the sufficiency of the libel, and the right of action against the ship upon the aver- 
 ments of the libel, are therefore allowed, and the libel is dismissed with costs." It 
 is difficult, however, to see how the libel could be deemed to be in personam. 
 
 * Alter the decision in The Robert J. Mercer, supra, the legislature of Massachu- 
 setts, by an act passed in 1862, provided as follows : " The hull and appurtenances 
 of every vessel shall be liable for all legal claims on account of pilotage, either ren- 
 dered or offered, for the space of sixty days." Ch. 176, schedule, clause 10. In 
 The Brig America, U. S. D. C. Mass., 2 Am. Law Review, 458, Lowell, J., held 
 that the lien given by this act could be enforced in admiralty. 
 
 ^ Commonwealth v. Ricketson, supra. But see Peake v. Carrington, 2 Brod. 
 & B. 309.
 
 110 ON THE LAW OF SHIPPING. [BOOK I. 
 
 In some of our ports the pilots form a kind of association, and 
 take the duty of going out with a ship or lying out in the offing 
 for one, by turns. In others, each pilot gets what he can ; and in 
 such ports the pilots, as might be expected, are, if not more alert, 
 more adventurous, and go further out to sea to board the incoming 
 vessels. It is said to be common for New York pilots to meet 
 ships approaching our coast, at one or two hundred miles distant ; 
 and the question has arisen whether they have at once the same 
 authority and rights and responsibility, as when they are near or 
 entering their harbors. We know of no adjudication on this 
 subject ; but do not believe that the courts will recognize as a 
 coast jjilot, one who is so far from the land, that he can discharge 
 no duties but as sea pilot, ov able seaman. Some of our coasting 
 steamers carry a pilot with them. Thus, for example, some of the 
 steam-packets between Boston and Philadelphia have on board a 
 pilot, who has no duties to perform until the vessel is near the 
 Delaware river. 
 
 While a pilot is on board (unless, with the exception arising 
 from extreme distance), he has the absolute and exclusive control 
 in the absence of the master, nor is the master liable for any acci- 
 dent which may then happen.^ How it is when the master is 
 present may not be so certain. So far, however, as we can gather 
 the law from books or from practice, we should say that the pilot 
 has the control of the ship as soon as he stands on the deck.^ 
 
 » Snell V. Rich, 1 Johns. 305. 
 
 * In Aldrich v. Simmons, 1 Stark. 214, an action of case was brought against 
 the owner of a vessel for the negligence of the pilot, who was employed both by the 
 owner and by the master. The pilot was called as a witness for the defendant, 
 who had released him. It was objected that the master should also have given a 
 release. But Gibbs, C. J., held that he was competent without a release, since the 
 captain could not be responsible to the owner for the misconduct of the pilot. 
 Bowcher v. Noidstrom, 1 Taunt. 568, was a case where an action was brought 
 against the master, not for the negligent act of the pilot, but for a wilful injury on 
 his part, and it was held that the master was not liable. There is also a dictum to 
 the effect that a master is not liable, in Yates v. Brown, 8 Pick. 24, per Parker, 
 C. J. But in Denison v. Seymour, 9 Wend. 9, where an action was brought 
 against the master of a steamboat for damage caused by a collision, and it was 
 proved that at the time the master was on board, but not on deck, and that the 
 pilot was chosen by the owners, and at the time was at the wheel, and had the 
 exclusive command of the vessel, the master was held liable. See also United 
 States V. Forbes, Crabbe, 558 ; United States v. Lynch, 2 N. Y. Legal Observer,
 
 CH. XVI.] WHO PILOTS ARE AND WHAT THEIR DUTIES. Ill 
 
 But he has no such ahsolute control as wholly to supersede the 
 master ; for it remains in the master's power, and it is his duty, to 
 ohserve the pilot, and in a case of obvious and certain disability, 
 or dangerous ignorance or mistake, to disobey him and dispossess 
 him of his authority. And although a master, if present, is not 
 answerable for any ordinary accident or injury arising from the 
 pilot's default, he would be answerable if it arose from siich act or 
 default on the pilot's part, as, within the rule just stated, made it 
 the master's duty to repossess himself of the control and direction 
 of the ship. 
 
 The question of the respective rights and duties of the pilot 
 and master has come up in several cases in England, in regard 
 to the liability of owners of vessels for torts or acts of negligence 
 of the pilot ; it being held, under their pilot acts, as we shall 
 presently see, that if the injury is occasioned by the negligence 
 of the pilot alone, the owners are not responsible, but otherwise 
 if there is negligence in the master, either in acts of commission 
 or omission. The master is not bound to interfere to prevent a 
 steamer from being taken to the wrong side of the channel, in 
 disobedience of a statute. The trim of the ship is within the 
 province of the master.^ In a case where the collision arose from 
 the vessel's going on in a fog, and it was argued that the master 
 was in pari delicto from not having interposed and brought the 
 vessel up, Sir John Nicholl expressed a strong opinion in favor of 
 this view, but left the point undetermined.^ In a later case it was 
 held that it was solely the duty of the pilot to determine when the 
 vessel should be brought up ; ^ and on appeal this decision was 
 affirmed.* It is the duty of the pilot to select the time and place 
 
 51. In Huggett v. Montgomery, 5 B. & P. 446, it was held that trespass would 
 not lie against the owner of a ship who was on board at the time his vessel came 
 into collision with another through the negligence of a pilot on board his vessel, 
 but that case was the proper remedy. 
 ^ The Argo, Swabey, Adm. 462. 
 
 • The Girolamo, 3 Hagg. Adm. 169, 176. 
 
 » The Lochlibo, 3 W. Rob. 310, 1 Eng. L. & Eq. 651. 
 
 * Pollok V. McAlpin, 7 Moore, P. C. 427. The court said : " It was contended 
 at the bar that, in this case, the impropriety of sailing through the Downs' was so 
 manifest, that the captain ought to have refused in spite of the pilot's opinion. 
 But we cannot assent to this. It would be very dangerous to hold that there 
 can be any divided authority in the ship with reference to the same subject, and,
 
 112 ON THE LAW OF SHirPING. [BOOK I. 
 
 of coming to anchor.^ So when a vessel is taking her berth, the 
 time and manner of dropping the anchor are exclnsively within 
 the province of the pilot.^ And the manner of catting it, pre- 
 paratory to bringing up for the purpose of taking a berth, is within 
 the province of the pilot.^ In Cahfornia, it has been held that it 
 is the duty of the captain or of the harbor-master to select a proper 
 berth, and not the pilot's.* But it is there provided by statute 
 that the pilot shall moor the ship safely where the master of the 
 vessel, or the harbor-master, directs.^ 
 
 The pilot is solely responsible for tlie measures adopted in get- 
 ting the ship under way.^ Where a collision was caused by a 
 vessel dragging her anchor, it was held to be the fault of the pilot 
 alone that another anchor was not let goJ 
 
 It is the duty of the master to see that a good lookout is kept, 
 although there is a pilot on board.^ If the master and crew have 
 contributed to the accident by not keeping a sufficient lookout, so 
 as to give the pilot the earliest possible information of an approach- 
 ing vessel, although the pilot is also to blame, the owners of the 
 vessel are not exempt from liability.^ If two vessels are entangled 
 together, and they can be separated by cutting away part of the 
 rigging, it is the duty of the master to give orders about it.^^ So 
 it has been held to be the duty of the master to have the top-gal- 
 lant and main royal yards sent down, when this is necessary. ^^ 
 
 ■whether the ship was to anchor or to proceed, was a matter which we think 
 belonged exclusively to the pilot to decide." See also The Maria, 1 W. Rob. 95. 
 
 * The George, 2 W. Rob. 38C, 4 Notes of Cases, 161, 9 Jurist, 670 ; The Mas- 
 sachusetts, 1 W. Rob. 371. 
 
 2 The Agricola, 2 W. Rob. 10. 
 
 « The Gipsey King, 2 W. Rob. 537. 
 
 * Griswoldy. Sharpe, 2 Calif. 17. 
 
 * Compiled Laws of Cal., c. 8, § 34. 
 « The Peeriess, Lush. Adm. 30. 
 
 ' The Northampton, 1 Spinks, Adm. 152. 
 
 ^ The Diana, 1 W. Rob. 131, affirmed, Stuart v. Isemonger, 4 Moore, P. C. 11. 
 The court said : " Although the directions of the pilot may be imperative upon 
 them" (the master and crew), " as to the course the vessel is to pursue,[the man- 
 agement of the ship is still under the control of the master." s. p. Netherlands 
 S. B. Co. V. Styles, Privy Council, 40 Eng. L. & Eq. 19. 
 
 * The "Velasquez, 4 Moore, P. C. 426 ; The lona, id. 336. 
 '" The Mass;ichusetts, 1 W. Rob. 371. 
 
 " The Christiana, 7 Notes of Cases, 2, affirmed, Hammond v. Rogers, 7 Moore, 
 P. C. 160.
 
 CH. XVI.] WHO PILOTS ARE AND WHAT THEIR DUTIES. 113 
 
 When the pilot is remiss in his duty, it is difficult to determine 
 with precision to what extent the master is bound to interfere. 
 In one case, Dr. Lushington said : " It would be a most dangerous 
 doctrine to hold, except under most extraordinary circumstances, 
 that the master could be justified in interfering with the pilot in 
 his proper vocation. If the two authorities could so clash, the 
 danger would be materially augmented, and the interests of the 
 owners, which are now protected both by the general principles of 
 law, and specific enactments, from liability for the acts of the pilot, 
 would be most severely prejudiced." ^ But, " it is the duty of the 
 master to observe the conduct of the pilot, and in the case of pal- 
 pable incompetency, whether arising from intoxication, or igno- 
 rance, or any other cause, to interpose his authority for the 
 preservation of the property of his employers." ^ If the pilot 
 goes below for a few minutes, leaving the second mate in com- 
 mand, with general directions how to steer, and a collision occurs 
 partly through the fault of this officer, the ship is responsible.^ 
 In one case it was held that if there was a hail from the lookout 
 to alter the helm, and the pilot altered it without exercising his 
 own judgment, the owners of the vessel would be liable. Speak- 
 ing of interference on the part of the master or crew. Dr. Lush- 
 ington said : " I should never go the length of saying that the 
 mere suggesting to the pilot on the part of the master to take in 
 this sail, or otherwise to keep as near the South Sand light, and 
 vice versa, or to bring the ship up, was interfering, in the legal 
 acceptation of the term, with the duties of the pilot ; illegal in- 
 terference is of a different description. If, for example, in this 
 case the boatswain had called out to the men below to starboard 
 
 1 The Maria, 1 W. Rob. 95, 110. See also The Peerless, Lush. Adm. 32 ; The 
 Admiral Boxer, Swabey, Adin. 196. In Netherlands Steamboat Co. v. Styles, 40 
 Eng. L. & Eq. 1 9, a case where, in consequence of a defective lookout, a barge 
 was sunk by a swell caused by the steamer, the court said that if the lookout had 
 informed the pilot of the barge, and he had insisted on going on, the owners 
 would have been discharged. See also PoUok v. McAlpin, supra, p. Ill, n. 4 ; 
 The Christina, 3 W. Rob. 27, affirmed, Petley v. Catto, 6 Moore, P. C. 371. 
 
 ' The Duke of Manchester, 2 W. Rob. 470, 480, affirmed on appeal, 
 Shersby v. Hibbert, 6 Moore, P. C. 90. See also The Christiana, 7 Notes of 
 Cases, 2; Hammond v. Rogers, 7 Moore, P. C. 160; The Joseph Harvey, 1 Rob. 
 Adm. 306, 311. 
 
 ^ The Mobile, Swabey, Adm. 69, 127. 
 
 VOL. II. 8
 
 114 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the helm, or if the master called out to port the helm, it would be 
 interference, but it would not be interference to consult the pilot, 
 or to suggest to him that the measures pursued were not proper, 
 or that other measures would in all probability be attended with 
 greater success." ^ 
 
 SECTION II. 
 
 HOW TAR OWNERS ARE RESPONSIBLE FOR THE TORTS OF PILOTS. 
 
 The pilot is the servant of the owner. And if the owner is not 
 obliged to take a pilot, the law only securing to him and appoint- 
 ing a sufficient pilot if he wishes one, it follows that the owner is 
 responsible for injuries resulting from the default of the pilot.^ 
 In England, it is provided by statute that no owner or master of 
 any ship or vessel shall be answerable for any loss or damage 
 which shall happen to any person or persons, by reason of any 
 neglect, default, incompetency, or incapacity of a licensed pilot 
 in charge of the vessel in pursuance of the provisions of the act.^ 
 
 1 The Lochlibo, 3 W. Rob. 329, 1 Eng. L. & Eq. 651, 656. 
 
 ^ The Attorney-General v. Case, 3 Price, 302 ; The Neptune, 1 Dods. 467; 
 The Transit, cited 1 W. Rob. 50 ; The Eden, 2 AV. Rob. 442 ; Yates v. Brown, 
 8 Pick. 23 ; Bussy v. Donaldson, 4 Dall. 206 ; Williamson v. Price, 16 Mart. La. 
 399 ; Pilot Boat Washington v. The Saluda, U. S. D. C. So. Car., April, 1831 ; 
 The Bark Lotty, Olcott, Adm. 329 ; Smith v. The Creole, 2 Wallace, C. C. 485 ; 
 The Carolus, 2 Curtis, C. C. 69. In this case the vessel was going out of the har- 
 bor with a pilot on board who was employed by the owner of the vessel, and the 
 vessel was held liable. Mr. Justice Curtis said : " If the pilot in charge of this 
 ship had not been selected and employed by the owner, but had been received by 
 the master in obedience to a requisition of law, enforced by a penalty, then, under 
 the authority of Carruthers v. Sydebotham, 4 M. & S. 77 ; The Maria, 1 W. Rob. 
 95 ; and The Agricola, 2 id. 10, the owners would seem not to be liable for the 
 misconduct or mismanagement of the .pilot. But in this instance the pilot has 
 testified that he was employed by the owner of the ship ; and no such case is 
 made by the answer as would compel an owner to receive a pilot on board under 
 the statute laws of Massachusetts." 
 
 * 6 Geo. IV. c. 125, § 55. In England, it is well settled that if the pilot is alone 
 in fault the owners are not liable. Bennet v. Moita, 7 Taunt. 258 ; Ritchie v, 
 Bowsfield, id. 309; M'Intosh v. Slade, 6 B. & C. 657; The Christiana, 2 Hagg. 
 Adm. 183; The Protector, 1 W. Rob. 45; The Maria, id. 95; The Duke of 
 Sussex, id. 270 ; The Vernon, id. 316 ; The Agricola, 2 W. Rob. 10 ; The Fama, 
 id. 184; The George, id. 386, 9 Jurist, 670, 4 Notes of Cases, 161 ; The Batavier, id. 
 407 ; The Atlas, id. 502 ; The Gipsey King, id. 357 ; The Temora, Lush. Adm. 17.
 
 CH. XVI.] OWNERS RESPONSIBLE FOR TORTS OF PILOTS. 115 
 
 It was formerly held, under this statute, that if there was a pilot 
 on board, and there was a neglect in the navigation of the vessel, 
 it was primd facie attributable to him.^ But the rule is now well 
 established, that as the owners claim an exemption from a general 
 liability by reason of. a special legislative enactment, the burden 
 is on them to show, in order to bring themselves within the pro- 
 visions of the enactment, that the pilot was alone in fault.^ The 
 eighty-ninth section of this statute provides that the act shall not 
 extend to ports in relation to which special provisions have been 
 made in any particular act or acts of parliament. It would clearly 
 seem that by this section the general act does not apply to the 
 ports of Liverpool and Newcastle, and it has been so held.^ The 
 
 ' Bennet v. Moita, 7 Taunt. 2.58 ; The Christiana, 2 Hagg. Adm. 183 ; The 
 Vernon, 1 W. Rob. 31G. 
 
 " The Protector, I W. Rob. 45 ; The Diana, 1 W. Rob. 131, affirmed Stuart v. 
 Isemonger, 4 Moore, V. C. 11; The Ripon, 6 Notes of Cases, 245; The Chris- 
 tiana, 7 Notes of Cases, 2, affirmed Hammond v. Rogers, 7 Moore, P. C. 160 ; The 
 Carrier Dove, Brow. & L. Adm. 113. See also The Massachusetts, 1 W. Rob. 
 371 ; Rodrigues r. Melhuish, 10 Exch. 110, 28 Eng. L. & Eq. 474 ; The Mobile, 
 Swabey, Adm. 69, 127; Netherlands S. B. Co. v. Styles, Privy Council, 40 
 Eng. L. & Eq. 19. In The Batavier, 2 W. Rob. 467, the pilot had been in the 
 constant employ of the owners for fifteen years, but as he was alone in fault the 
 owners were held not liable. In The Christiana, supra, the pilot had done his 
 duty by bringing the vessel to the Downs, where she anchored, but as he could 
 not leave on account of bad weather the owners were held entitled to the legal 
 protection which his presence gave them. See also Lacy v, Ingram, 6 M. & W. 
 302. The 87th section of the 6 Geo. IV. c. 125, provided that nothing in the act 
 contained should extend to, affect, or impair the jurisdiction of the High Court of 
 Admiralty. Sir John Niclioll construed this to mean that the act only applied to 
 the common-law courts, and that the vessel was still liable in rem although there 
 was a pilot on board. The Girolamo, 3 Hagg. Adm. 169. See also The Baron 
 Holberg, 3 Hagg. Adm. 244; The Gladiator, id. 340; The Eolides, id. 367; 
 Smith V. The Creole, 2 Wallace, C. C. 485, 518. But it is now well settled in 
 England that the clause above cited means that the Court of Admiralty shall re- 
 tain its jurisdiction to administer the law as altered by the act, and, therefore, the 
 vessel is not liable if the pilot is alone in fault. The Protector, 1 W. Rob. 45, 52, 
 and cases supra. 
 
 ^ Attorney-General v. Case, 3 Price, 302. The King's Bench, in Carruthers v. 
 Sydebotham, 4 M. & S. 77, were of a different opinion. The Supreme Court of 
 the United States, in a case of collision happening in the port of Liverpool be- 
 tween two American vessels, seemed to consider it settled by the EngUsh admi- 
 ralty cases that the owners were not liable if there was a pilot on board. Smith 
 r. Condry, 17 Pet. 20, 1 How. 28. It is to be observed, however, that the cases
 
 116 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Liverpool and Newcastle acts contain no clause similar to that 
 in the general statute of 6 Geo. IV., but provide, merely, that 
 a master shall take a pilot on board or shall pay pilotage. This 
 is similar to our own statutes, and tlie question arises whether 
 the pilot can be said to be taken on board by such compul- 
 sion that the owner is not liable for his acts. In England, the 
 weight of authority is clearly in favor of exonerating the owner.^ 
 
 cited are The Maria, 1 W. Rob. 95 ; The Protector, id. 45 ; The Diana, id. 131. 
 The last two cases were decided under the general act, and are, therefore, not 
 authorities to the point that the 55th section applies to the Liverpool act. In The 
 Maria, Rupra, which was a case under the Newcastle act, which is similar to the 
 Liverpool, Dr. Lushington said he doubted very much whether he could apply 
 the 55th section of the general act to the case of a Newcastle pilot. He expresses 
 the same doubt also in the subsequent case of The Agricola, 2 W. Rob. 10. 
 
 ^ The Court of King's Bench, in Carruthers v. Sydebothara, 4 M. & S. 77, and 
 the Court of Exchequer, in Attorney-General v. Case, 3 Price, 302, have arrived 
 at opposite conclusions in regard to the construction of the Liverpool act. In the 
 former case it was held that the taking a pilot on board was compulsory, and the 
 owners, therefore, were not liable. In the latter case a different opinion was ex- 
 pressed, but the facts of the case did not call for it. The vessel was lying at 
 anchor in the river Mersey. By the 31st and 34th sections of the Liverpool act, 
 it is provided, that any vessel, whilst lying at anchor, may require a pilot to re- 
 main on board, upon payment of five shillings a day for his services. The pilot 
 was retained on board, and the owners were held liable. This case therefore, is 
 not an authority against the construction of the act, as laid down in Carruthers v. 
 Sydebotham. See also Rodrigues v. Melhuish, 10 Exch. 110, 28 Eng. L, & Eq. 
 474; The Maria, Law Rep. 1 Adm. 258. It was held, in The Montreal, 24 Eng. 
 L. & Eq. 580, where a pilot had been taken on board under the Liverpool act to 
 pilot the vessel to the Queen's Docks at Liverpool, and had subsequently anchored 
 in the river Mersey, and came into collision the next day while proceeding up the 
 river, that the vessel was not liable, the pilot being alone to blame. And in The 
 Maria, 1 W. Rob. 95, and The Agricola, 2 W. Rob. 10, cases under the Newcastle 
 act, it was held, that if the master was obliged to take a pilot on board or to pay 
 full pilotage, such a taking was by compulsion and the owners were not liable. 
 In both these cases the vessels were homeward bound. In The Annapolis, Lush. 
 Adm. 312, Dr. Lushington said : " But whether the Merchants' Shipping Act applies 
 to this case or not, I am of opinion that the owners of the Annapolis are exempt 
 from responsibility by reason that the employment of the pilot was compulsory : 
 the pilot was not their servant or agent ; they could not avoid intrusting him with 
 the management of the vessel. In the case of The Maria, I have stated at some 
 length my reasons for coming to this conclusion. I believe that the doctrine I 
 then maintained, and now adhere to, is consonant with justice, supported by 
 authority, and is in strict accordance with the principle adopted by the Legislature 
 in the Merchants' Shipping Act." In this case a vessel bound for Liverpool took
 
 CH. XVI.] OWNERS RESPONSIBLE FOR TORTS OF PILOTS. 117 
 
 But in this country the question does not seem to be fully deter- 
 mined.^ 
 
 The Merchants' Shipping Act^ provides that, "No owner or 
 master of any ship shall be answerable to any person whatever 
 for any loss or damage occasioned by the fault or incapacity of any 
 qualified pilot acting in charge of such ship, within any district 
 where the employment of such pilot is compulsory by law." It 
 has been held that this act should be construed strictly as it de- 
 prives parties injured of a remedy they would otherwise have 
 
 a pilot off Point Lynas, was brought to anchor in the Mersey, and lay there two 
 or three days waiting, for want of water to dock. She was then conducted by the 
 same pilot into dock, and on the way came into collision with another vessel 
 through the pilot's fault. By law a vessel is obliged to take a pilot or to pay full 
 fees. The pilot is required to cause the vessel to be properly moored in the Mer- 
 sey, and to pilot her into a wet dock without any additional charge, unless his at- 
 tendance is required while the vessel is at anchor, in which case he is entitled to 
 five shillings a day. Held, that the taking of a pilot was compulsory, and that 
 the compulsion continued until the vessel was in the dock. 
 
 * It would seem to have been the opinion of Mr. Justice Curtis, in the case of 
 The Carolus, 2 Curtis, C. C. 69, cited ante, p. 114, note 2, that had the vessel 
 been homeward bound, so that the master would have been obliged to have taken 
 the first pilot that offered, or have paid full pilotage, the owners of the vessel 
 would not have been liable for the collision. Let us see, then, whether this opinion 
 is repugnant to the American authorities. In Yates v. Brown, 8 Pick. 23, and in 
 The Julia M. Hallock, 1 Sprague, 539, the vessels were outward bound. In 
 Bussy V. Donaldson, 4 Dall. 206, and in Williamson v. Price, 16 Mart. 399, it does 
 not appear which way the vessels were going. In the case of The Bark Lotty, 
 Olcott, Adm. 329, it was contended that the exemption from liability continued 
 after the vessel was moored to the wharf by the pilot. But the court very prop- 
 erly decided otherwise. Smith v. The Creole, 2 Wallace, C. C. 485, was also a 
 case of an outward-bound vessel. This case was argued at great length, and a 
 very learned opinion pronounced by Mr. Justice Grier, to the effect that the 
 Pennsylvania act, which provides that every vessel shall be obliged to receive a 
 pilot, or in default thereof, shall pay a sum equal to half pilotage, is not com- 
 pulsory. Such, also, is the opinion of Mr. Justice Story ; Story on Agency, § 456, 
 a, note 1. In Griswold v. Sharpe, 2 Calif 17, it was said that when a vessel is 
 properly in charge of a licensed pilot, the owner is not responsible for damages 
 which may ensue for his negligence or misconduct. But in that case, the master 
 being in fault, the owners were held liable. It will be seen that there is no decis- 
 ion in opposition to the suggestion thrown out by Mr. Justice Curtis, though it 
 cannot be denied that the principles and reasonings, upon which the authorities 
 are based, are against it. 
 
 2 17 & 18 Vict. c. 104, § 388.
 
 118 ON THE LAW OF SHIPPING. [BOOK I. 
 
 had.^ To exonerate the owners, the loss must be occasioned 
 solely by the fault of the pilot ; ^ and the burden is on the own- 
 ers of the vessel to prove this.^ 
 
 The legislature of a country has no authority over foreign ves- 
 sels on the high seas out of its jurisdiction, but may impose any 
 conditions on a foreign vessel entering its ports, and may oblige 
 foreign ships inward bound to take a pilot at a convenient station 
 beyond three miles from the shore.'' 
 
 If a ship neglects to take a pilot that offers, the owners will be 
 answerable in damages to shippers or others, for any loss which 
 may happen by reason of their neglect or refusal.^ And pilots 
 
 ^ The General de Caen, Swabey, Adm. 9. In this case a French vessel 
 coming up the Thames took on board a pilot, and, as none of her crew under- 
 stood English, a waterman to take the wheel. The vessel came into collision 
 with a barge, owing to the waterman disobeying an order of the pilot. Held, on 
 the facts, that the waterman was not a servant of the pilot, and that the vessel was 
 liable. 
 
 2 The Mobile, Swabey, Adm. 127; The Admiral Boxer, id. 193 ; The Borus- 
 sia, id. 94. 
 
 ^ In The Schwalbe, Lush. Adm. 239, the defendants' vessel was charged with 
 improperly starboarding her helm. The defendants claimed that the helm was 
 not starboarded, but was put to port. The master admitted that the pilot gave 
 the order to starboard, but testified that the pilot immediately corrected it, and 
 gave the order to port, which was obeyed. Lord Chelmsford, in the Privy Coun- 
 cil, said: "The owners, to relieve themselves from liability, are bound to prove 
 that an order to starboard the helm at this time was given by the pilot. But no 
 such proof is anywhere to be found, except in the hasty expression (corrected, as 
 the witness says, almost before the words were out of his mouth, and not acted 
 upon), just at the moment of the collision. The owners, therefore, fail entirely in 
 the evidence necessary to transfer the responsibility from themselves ; and with- 
 out considering whether there was any negligent act or omission on the part of 
 the crew of the Schwalbe, their lordships think it sufficient to say, that the owners 
 have not succeeded in establishing that the collkion is to be attributed solely (if 
 at all) to the fault of the pilot." In The Carrier Dove, Brow. & L. Adm. 113, it 
 was held that it was not enough to show that the pilot was on deck giving general 
 orders, but the owners must show that the particular order which caused the 
 damage was given by the pilot. 
 
 * The Annapolis, Lush. Adm. 295. 
 
 * See M'Millan v. Union Ins. Co. 1 Rice, 248 ; Keeler v. Fireman's Ins. Co. 3 
 Hill, 250. And in an English case, where a vessel, seized on justifiable grounds, 
 as appeared by the condemnation of a part of her cargo, was lost by the neglect 
 of the captors to take a pilot on board, the Court of Admiralty decreed restitution 
 in value against them. The William, 6 Rob. Adm. 316. But if no pilot can be
 
 CH. XVI.] OWNERS RESPONSIBLE FOR TORTS OF PILOTS. 119 
 
 themselves are answerable like other persons for any harm which 
 they may do, by negligence or default.^ 
 
 If a pilot refuses to board a vessel, he is liable for damages 
 civilly and criminally.^ By some of the ancient marine ordi- 
 nances the pilot was obliged to make full satisfaction, or to lose 
 his head, in case of any injury happening through his fault.^ 
 
 obtained, and the most judicious course is for the master to attempt to go into port 
 without one, the owners will not be responsible for a loss happening in consequence 
 of his so doing. Van Syckel v. The Sch. Thomas Ewing, Crabbe, 405. 
 
 ' Yates V. Brown, 8 Pick. 24; Heridia v. Ayrcs, 12 id. 334; Campbell v. Wil- 
 liamson, 2 Whart. Dig. 680. See also Slade v. The State, 2 Carter, 33. In 
 Lawson v. Dumlin, 9 C. B. 54, an action was brought against a pilot for neg- 
 ligently running into the ship of the plaintiff. The pilot, at the time, was in com- 
 mand of another vessel. He was held liable. In Stort v. Clements, Peake, 107, 
 the general rule was admitted, but as the collision took place in consequence 
 of the pilot steering the vessel according to the direction of the officer in charge, 
 he was not held responsible. If a steamboat is hired for the purpose of towing a 
 vessel, to which she is fastened, and both are under the direction of a licensed 
 pilot, if the steamboat is injured in the course of the navigation, the owner of her 
 is not entitled to damages, unless it was caused by the undue negligence of the 
 pilot. Reeves v. The Ship Constitution, Gilpin, 579. 
 
 * Commissioners of Pilotage v. Low, R. M. Charlt. 298. 
 
 ' Laws of Oleron, art. xxiii. ; Consolato del Mare, c. 250.
 
 120 ON THE LAW OF SHIPPING. [BOOK L 
 
 CHAPTER XYII. 
 
 OF THE LIMITATION OF THE LIABILITY OF SHIP-OWNERS BY 
 
 STATUTE. 
 
 In 1851 ^ an act of Congress was passed entitled " An act to 
 limit the liability of shipowners, and for other purposes." The 
 provisions of this act are of paramount importance to the mer- 
 cantile community, though the main object of the act has been 
 frustrated by the neglect on the part of its framers to embody this 
 intent in intelligible language. 
 
 We have already considered the liability of the owners of a 
 vessel, and of the master, by the common law, and shall now treat 
 of the limitation of this liability by the maritime law and by the 
 various statutes that have been passed in England and in this 
 country. 
 
 By the general maritime law the responsibility of the owners of 
 a vessel for the acts of the master and mariners, was limited to 
 the value of the ship and freight ; and, by abandoning them, or by 
 their loss before the termination of the voyage, all liability ceased.^ 
 The Marine Ordinance of France of 1681,^ provided that the own- 
 ers of ships should be responsible for the acts of the master, but 
 that they should be discharged upon abandonment of their ship 
 and freight. There has been quite a discussion whether this pro- 
 vision applied to contracts made by the master within the legiti- 
 mate scope of his authority as master, as where he borrowed 
 money for the necessary repairs and supplies of the ship.^ 
 
 » Acts of 1851, c. 43, 9 U. S. Stats, at Large, 635. 
 
 * Emerigon, Contrats k la Grosse, c. 4, § 11 ; The Rebecca, Ware, 188, 198 ; 
 The Phebe, Ware, 263, 271. By the civil law each of the owners was bound in 
 solido for the full amount of the obligations of the master, arising ex contractu. 
 Dig. 14, 1, 1, 25 ; Dig. 14, 1, 2. But for obligations ex delicto, each was bound 
 only for his part, that is, in proportion to the interest he had in the ship. Dig. 4, 
 9, 7, 5; The Rebecca, Ware, 188, 194; The Phebe, Ware, 263, 268. The con- 
 trary is stated in Stinson v. Wyman, Daveis, 172, 175, but apparently without 
 reflection. 
 
 * Ord. de la Mar. liv. 2, tit. 8, art. 2. 
 
 * Valin, book 2, tit. 8, art. 2, and Pothier, " Des Proprietaires," liv. 2, tit. 8,
 
 CH. XVII.] LIMITATION OF LIABILITY OF SfflP-OWNERS. 121 
 
 In England, the liability of the owners of vessels has been 
 limited by various statutes to the value of the ship and freight.^ 
 Several questions of great interest have been decided under these 
 statutes, which may be referred to as aids in the true construction 
 of the act of 1851. 
 
 In 1818,^ the legislature of Massachusetts passed an act on this 
 subject mainly based on the English statute of 7 Geo, II. This 
 was followed by an act in Maine in 1821,^ which is nearly an exact 
 copy of the Massachusetts statute. In 183G,'* the Massachusetts 
 statutes were revised, and the statute of 1818 was entirely re- 
 written. In 1840, the Maine statutes were revised, and the pro- 
 visions of the Revised Statutes of Massachusetts substantially 
 adopted. ^ 
 
 The Act of Congress of 1851 is principally taken from the Eng- 
 lish Act of 26 Geo. III., and from the forty-seventh chapter of the 
 Revised Statutes of Maine of 1840. 
 
 Section 1 relates to a loss by fire, and is taken nearly word for 
 word from the second section of 26 Geo. III. c. 86. It provides 
 generally that a shipowner shall not be liable for loss by fire, " un- 
 less such fire is caused by the design or neglect of such owner." 
 Then follows this proviso, which is not in any previous act, " Pro- 
 vided that nothing in this act contained shall prevent the parties 
 from making such contract as they please, extending or limiting 
 the liability of ship-owners." 
 
 art. 2, hold, on the one hand, that the provisions of the article above referred to, 
 do not apply to the contracts of the master, while Emerigon, Traite k la Grosse, 
 c. 4, § 11, is of the opposite opinion. The New Code de Commerce of 1807 
 adopts substantially the language of the Ordonnance, and this has occasioned 
 another controversy. Fardessus, Cours de Droit Comm. tom. 3, tit. 3, c. 3, art. 
 663, supports the views of Valin, while Boulay Paty, Droit Comm. tom. 1, tit. 3, 
 adopts those of Emerigon. The Court of Cassation has, however, decided that 
 the owner of a vessel is indefinitely responsible for all the acts of the captain 
 •within the sphere of his authority, and especially for bottomry loans contracted in 
 the course of the voyage. Tourrel v. Fabry, 19 Am. Jurist, 233. 
 
 1 Stats. 7 Geo. II. c. 15 ; 26 Geo. III. c. 86 ; 53 Geo. IIL c. 159 ; 17 & 18 Vict, 
 c. 104, § 503, el seq. ; 25 & 26 Vict. c. 63, § 54, et seq. 
 
 ' Acts of 1818, c. 122. 
 
 " Maine Stats. 1821, c. 14, §§8-10. 
 
 * Rev. Stats. Mass., c. 32, §§ 1-4. This chapter was re-enacted with slight 
 verbal changes in 1860. Gen. Stats. Mass., c. 52, §§ 18-21. 
 
 « Rev. Stats. Maine, 1840, c. 47, §§ 8- 11. See also Rev. Stats. 1857, c. 35, 
 §§ 5, 6.
 
 122 ON THE LAW OF SHIPPING. [BOOK I. 
 
 The corresponding section of the statute 26 Geo. III. has been 
 held to apply merely to goods on board a vessel. Ship-owners, 
 therefore, were held liable for a loss by fire while the goods were 
 being conveyed in lighters to the ship for the purposes of transpor- 
 tation.^ And the same rule has been applied under the act of 
 1851, where cargo was destroyed by fire after it was taken from 
 the vessel, and before it was delivered to the consignees.^ 
 
 The words " design or neglect of such owner," have been held 
 not to include a loss occasioned by the negligence of the master or 
 mariners ; and the owner is, therefore, not liable for a loss by fire 
 so occasioned.^ 
 
 The proviso which ends this section presents an interesting 
 question. It clearly gives the right to the parties to a contract of 
 affreightment to make such contract as they please, extending or 
 limiting the liability of ship-owners. It is well-settled law that 
 fire is not a peril of the seas within the meaning of this exception 
 in a bill of lading. If, then, an ordinary bill of lading is given 
 containing only the exception " peril of the seas," is this a " con- 
 tract" within this proviso, which extends the liability of the ship- 
 owner to a loss by fire ? In a recent case before the Supreme 
 Court of the United States, it seems to have been assumed that a 
 ship-owner would not be liable in such case.* 
 
 1 Morewood v. Pollok, 1 Ellis & B. 743, 18 Eng. L. & Eq. 341. In New York, 
 it has been held that the ship is not liable in such a case under our statute of 
 1851. Dill V. The Bertram, U. S. D. C, N. Y., Belts, J., The goods had been de- 
 livered to the vessel, and were on the wharf at the time. 
 
 2 By Curtis, J., in Goddard v. Bark Tangier, U. S. C. C. Mass., 21 Law Rep. 12 ; 
 Salmon Falls Co. v. Bark Tangier, id. 6 ; The Ship Middlesex, id. 14. One of 
 these cases was taken to the United States Supreme Court, but no opinion was 
 expressed upon this point. Richardson v. Goddard, 23 How. 28. And this 
 point seems to have been assumed in Gatliffe v. Bourne, 4 Bing. N. C. 314, 3 
 Man. & G. 643, 7 Man. & G. 850. 
 
 ^ Walker v. Transportation Co. 3 Wallace, 150. 
 
 * Walker v. Transportation Co. 3 Wallace, 150. In this case no bill of lading 
 was given ; but the defendants pleaded, first, that the property was received on 
 board with reference to the terms of the bills of lading usually given by them, 
 which contained an exception of the dangers of navigation, fire, and collision ; and 
 second, that the property was received on board with the understanding that the 
 usual bill of lading common in that trade should be given, and that such bill of 
 lading exempted the ship-owner from loss by "perils of navigation, perils of the 
 seas, and other equivalent words ; " and that by usage and custom these words
 
 CH. XVII.] LIMITATION OF LIABILITY OF SfflP-OWNERS. 123 
 
 Section 2 provides that if the " shipper or shippers of platina, 
 gold, gold dust," <fcc., shall lade the same on board of any ship 
 or vessel, without, at the time of such lading, giving to the master, 
 agent, owner or owners of the ship or vessel receiving the same, 
 a note in writing of the true character and value thereof, and 
 have the same entered on the " bill of lading therefor," the mas- 
 ter and owners shall not be liable in any form or manner. " Nor 
 shall any such master or owners be liable for any such valuable 
 goods beyond the value and according to the character thereof so 
 notified and entered." 
 
 This section is based on the third section of 26 Geo, III., c. 86. 
 By the English act the shipper must at the time of shipping " in- 
 sert in his bill of lading, or otherwise declare in writing . . . the 
 true nature, quality, and value" of the goods. A literal construc- 
 tion of the act of 1851 would deprive the shipper of remedy, if he 
 did not, at the time of lading, give a note in writing, stating the 
 true character and value, although the bill of lading might con- 
 tain these particulars. In one case, however, a more liberal 
 construction was given, and it was held that if the shipper acted 
 honestly, and the necessary statement was contained in the bill 
 of lading this was sufficient.^ 
 
 Under 26 Geo. III., c. 86, it has been held that a description in 
 the bill of lading of the property shipped as " 1,338 hard dollars" 
 is a sufficient statement of the value, the dollar being a coin cur- 
 rent at the port of shipment at the time, and that it is not neces- 
 
 included loss by fire, unless the fire had been caused by the negligence or miscon- 
 duct of the owner or his servants. The libellants then amended their libel and 
 admitted the contract, and claimed that the loss was occasioned by the negligence 
 of the owner's servants or agents. The court rested its decision on the construc- 
 tion to be given to the second ground of defence, and held that there was nothing 
 in a bill of lading concerning " perils of navigation and perils of the seas " which 
 would make the owner liable for the negligence of his servants ; and that the 
 usage set up by the respondents, and admitted by the libellants, was not founded 
 on a custom which the law could support, and that the case must be governed by 
 the act of 1851. The libel was accordingly dismissed. 
 
 1 Wattson V. Marks, U. S. D. C. Penn., Kane, J., 2 Am. Law Reg. 161. The 
 case of Greyor v. The Black Warrior, U. S. D. C. La., Boston Courier, March 
 18, 1858, seems to be opposed to so liberal a construction, but the report of the 
 case does not state whether or not the bill of lading contained a statement of the 
 facts required, by the statute to be in the note.
 
 124 ON THE LAW OF SHIPPING. [BOOK I, 
 
 sary to state the value at the port of delivery.^ Under the act of 
 17 & 18 Victoria, which requires "the true nature and vahie" 
 of the article to be stated, the following description is not suffi- 
 cient, " one box containing about two hundred and forty-eight 
 ounces of gold dust," for gold dust varies in value.^ 
 
 Sections 3 and 4 are so closely connected that we will consider 
 them together. 
 
 Section 3 is as follows : " That the liability of the owner or 
 owners of any ship or vessel, for any embezzlement, loss, or de- 
 struction, by the master, officers, mariners, passengers, or any 
 other person or persons, of any property, goods, or merchandise, 
 shipped or put on board of such ship or vessel, or for any loss, 
 damage, or injury by collision, or for any act, matter, or thing, 
 loss, damage, or forfeiture, done, occasioned, or incurred, without 
 the privity or knowledge of such owner or owners, shall in no case 
 exceed the amount or value of the interest of such owner or 
 owners respectively, in such ship or vessel, and her freight then 
 pending." 
 
 Section 4, provides " that if any such embezzlement, loss, or 
 destruction, shall be suffered by several freighters or owners of 
 goods, wares, or merchandise, or any property whatever, on the 
 same voyage, and the whole value* of the ship or vessel, and her 
 freight for the voyage, shall not be sufficient to make compensation 
 to each of them, they shall receive compensation from the owner 
 or owners of the ship or vessel, in proportion to their respective 
 losses; and for that purpose the said freighters and owners of the 
 property, and the owner or owners of the ship or vessel, or any of 
 them, may take the appropriate proceedings in any court, for the 
 purpose of apportioning the sum for which the owner or owners of 
 the ship or vessel may be liable amongst the parties entitled 
 thereto. And it shall be deemed a sufficient compliance with the 
 requirements of this act, on the part of such owner or owners, if 
 he or they shall transfer his or their interest in such vessel and 
 freight, for the benefit of such claimants, to a trustee, to be ap- 
 pointed by any court of competent jurisdiction, to act as such 
 trustee for the person or persons who may prove to be legally 
 
 * GIbbs V. Potter, 10 M. & W. 70. 
 
 » Williams v. African Steamship Co. 1 H. & N. 300, 37 Eng. L. & Eq. 
 4G2.
 
 CH. XVII.] LIMITATION OF LIABILITY- OF SHIP-OWNERS. 125 
 
 entitled thereto, from and after which transfer, all claims and 
 proceedings against the owner or owners shall cease." 
 
 Section 3 is nearly the same as section eight of the Maine Re- 
 vised Statutes of 1840, c. 7. The word "loss," which is not in 
 the Maine statutes was added in the Senate.^ The clause " or for 
 any loss, damage, or injury by collision," is not in the statutes of 
 Maine or Massachusetts, or in these words in any of the English 
 statutes. 
 
 Section 4 is nearly word for word the same as section nine of 
 the Maine statute, as far as the last clause. The Maijie statute 
 provides for the bringing of a bill in equity for the discovery of 
 the loss or damage, the value of the ship and freight, and for the 
 equal distribution of the sum for which the owners may be liable. 
 The last clause of the fourth section is entirely different from that 
 contained in any previous statute, and has given rise to questions 
 of great difficulty and embarrassment. 
 
 Under the English statutes it has been held that the value of the 
 vessel is the sum for which she could have been sold, and this is to 
 be ascertained, not by making deductions from her cost price pro- 
 portioned to her age, but by a valuation and appraisement.^ In 
 respect to the freight, that paid in advance has been included.^ 
 And it has been held that the wfiole freight is liable, and that no 
 deductions are to be made for, or on account of, bottomry, mort- 
 gage, pilotage, or towage, or for seamen's wages.* The amount 
 of freight for which the owners are liable, is that which would 
 have been earned had the voyage been completed, and not that 
 
 > Congressional Globe (1850, 1851), vol. 23, p. 715. 
 
 = Wilson V. Dickson, 2 B. & Aid. 2 ; Dobree v. Schroder, 6 Sim. 291, 2 Mylne & 
 C. 489. In The African Steamship Co. v. Swanzy, 2 Kay & J. 660, it was held 
 that the value of a ship, within the meaning of the Merchant Shipping Act of 
 1854, 17 & 18 Vict. c. 104, § 504, was not the value which the owner would have 
 set upon his vessel, nor was the sum for which he might have recently insured 
 her the only criterion, although it might be one of many. But under ordinary 
 circumstances, and with the exception of the case where there is no market for a 
 ship of the kind, such value would be taken to be what the ship would have 
 brought, if sold immediately before the loss. In the excepted case, one criterion 
 would be to ascertain what the ship cost, and then to deduct the subsequent dete- 
 rioration. See also, generally. The Dundee, 1 Hagg. Adm. 109, s. c. Gale v. 
 Laurie, 5 B. & C. 156 ; The Carl Johan, cited 1 Hagg. Adm. 113. 
 
 * Wilson V. Dickson, 2 B. & Aid. 2. 
 
 * The Benares, 1 Eng. L. & Eq. 637.
 
 126 ON THE LAW OF SHIPPING. [BOOK T. 
 
 calculated on at the commencement of the voyage.^ If the suit is 
 in rem for damage done by a collision, although the proceeds of 
 the vessel are insufficient to make good the loss, the court cannot 
 engraft upon the proceeding in rem a personal action against the 
 master who is a part-owner, to make good the excess of damage 
 beyond the proceeds of the ship.^ And the negligent part-owner 
 cannot be made answerable beyond the value of the ship and 
 freight, if the action is in rem^ and he is a party to the suit merely 
 by reason of his entering his appearance as owner.'^ The owners 
 of a vessel are, however, personally liable for costs, if the ship and 
 freight are not sufficient to compensate for the damage done.* 
 
 ^ Canaan v. Meaburn, 1 Bing. 465. In this case the vessel sailed with a full 
 cargo, the freight of which would have amounted to £2,000 if the goods had 
 arrived at their port of destination. On the voyage the vessel put into port in 
 distress, and the captain sold a part of the cargo which belonged to the owners of 
 the vessel for the purpose of raising funds for repairs. Part was applied to this 
 object, and the remainder of the proceeds was remitted to the owners of the 
 vessel. The vessel then proceeded on her voyage, but became leaky, and a 
 jettison of another portion of the cargo was made. She then put into an inter- 
 mediate port, and the cargo was unloaded and stored in two warehouses. Soon 
 after one warehouse with its contents was consumed by fire, leaving one hundred 
 and forty chests of indigo, and thirty casks of tallow, which were in another ware- 
 house, remaining. The ship and the remaining cargo Avere afterwards sold with- 
 out the knowledge or privity of the defendants. The jury found that the ship 
 mi"-ht have been repaired and the goods forwarded. The court held that only the 
 freight of the goods which remained, and which might have been sent on, was 
 liable. See The Leo, Lush. Adm. 444. 
 
 « The Hope, 1 W. Rob. 154. 
 
 * The Volant, 1 W. Rob. 385. 
 
 * The Volant, 1 W. Rob. 390; The John Dunn, 1 W. Rob. 159. A prohibi- 
 tion was afterwards moved for in this case in the Court of Queen's Bench, but the 
 rule was discharged, the court being of the opinion that the true principle had 
 been adopted in the admiralty court, s. c. 1 AV. Rob. 162, nom., Ex parte 
 Rayne, 1 Q. B. 982, 1 Gale & D. 374. In Dobree v. Schroder, 6 Sim. 291, it was 
 held that where a judgment has been obtained against a ship-owner at law, and 
 he thereupon files a bill in equity under the statute, he is liable for the costs in- 
 curred by the plaintiff in the suit at law. Section 514 of the Merchants' Shipping 
 Act of 17 & 18 Vict, provides "as to payment of costs, as the court thinks 
 just." In African Steamship Co. v. Swanzy, 2 Kay & J. 660, several suits had 
 been brought at law ; a bill was then filed in the Court of Chancery by the ship- 
 owners, and the claims against the vessel proved. Held, that the owners of the 
 vessel were liable for the costs of the suits at law and in the Court of Chancery. 
 The court intimated that if there had been adverse litigants or other special cir- 
 cumstances over which the complainants in equity had no control, the result
 
 CH. XVn.] LIMITATION OF LIABILITY OF SHIP-OWNERS. 127 
 
 Under 7 Geo. II. c. 15, the owner of a ship is not liable beyond 
 the value of the ship and freight for a robbery by persons from 
 without, one of tlie mariners having given intelligence which led 
 to the robbery, and having shared in the spoil.^ A sale by the 
 master of goods at a foreign port to pay for repairs to the vessel 
 is not a " loss or a damage," within the 53 Geo. III.^ The owners 
 of a damaged vessel and part of the cargo, who had obtained a 
 decree of the court in a collision case, are entitled to have the 
 proceeds of the vessel which did the damage, paid out to satisfy 
 the amount of their loss, in preference to the owners of the 
 remaining portion of the cargo, who had not brought their action 
 until the decree in the first suit had been pronounced. And the 
 court has no power under 53 Geo. III., on petition of the other 
 owners of the cargo, to apportion the proceeds.^ 
 
 In England, by the Act of 17 & 18 Vict.,* the owner may insti- 
 tute proceedings in the High Court of Chancery in England or 
 Ireland, and in Scotland in the Court of Sessions, and in any 
 British possession in any competent court, to determine the amount 
 of his liability, and to distribute such amount ratably among the 
 several claimants, with power to the court to stop all actions and 
 suits pending in any other court in relation to the same subject- 
 matter. But as a general rule the court in which the case is 
 pending will not restrain the plaintiff from proceeding because the 
 defendant has filed his bill in equity for relief.^ And in order to 
 stay proceedings the owner must admit and aver that he had 
 incurred liability in respect of some damage.^ If a party obtains 
 judgment in another court before the owner institutes proceedings 
 
 would be different, and that the decision ought to depend on the question, who 
 was eased by the proceedings. 
 
 1 Sutton V. Mitchell, 1 T. R. 18. 
 
 ^ Atkinson v. Stephens, 7 Exch. 567. 
 
 « The Saracen, 2 W. Rob. 451, affirmed 6 Moore, P. C. 56 ; The Clara, 
 Swabey, 1. 
 
 * Ch. 104, § 514. In 1861, it was provided by 24 Vict. c. 10, § 13, that when- 
 ever any sliip or vessel or the proceeds thereof are under arrest of the High 
 Court of Admiralty, the said court shall have the same powers as are conferred 
 upon the High Court of Chancery in England, by the 9th part of the Merchants' 
 Shipping Act of 1854. 
 
 ^ Thiseldon v. Gibbons, 8 Dowl. P. C, 419, nom., Thistleton v. Gibbons, 4 Jur. 
 629. 
 
 » Hill V. Audus, 1 Kay & J. 263.
 
 128 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ill chancery, he is allowed his costs, but is entitled to no other 
 preference over the other claimants, and must share ratably with 
 them in the value of the ship and freight. ^ 
 
 Since the liability of the owners of a vessel is limited by stat- 
 ute, the fact that, if the vessel is arrested, they give bail to a 
 larger amount, does not increase their liability .^ 
 
 If a collision takes place on the high seas between two American 
 vessels, the one in fault cannot in England claim the benefit of the 
 English statutes.^ So if the collision is between an American and 
 an English vessel, the owners of the former cannot set up either 
 the English or American statutes as limiting their liability.'* But 
 if the collision takes place between a British and a foreign vessel 
 within three miles of the British coast, the British vessel is enti- 
 tled to the benefit of the statute.^ 
 
 The questions of difficulty which arise under the third and 
 fourth sections may be stated as follows : — 
 
 First, At what time is the value of the ship and freight to be 
 estimated. 
 
 Second, Does the same rule apply to cases of a breach of a con- 
 tract of affreightment and those of collision, under the third section ? 
 
 Third, How far does the right of abandonment given by the 
 fourth section correspond with the provisions of the maritime law, 
 and what effect does it have upon the third section as determining 
 the time when the value of the ship and freight is to be taken ? 
 
 Fourth, Is an abandonment allowed in a case of collision under 
 the fourth section ? 
 
 Fifth, In what court may " appropriate proceedings " be taken ? 
 
 Sixth, Is a part owner of a vessel liable for the value of the en- 
 tire vessel, or only for the value of his interest in the same. 
 
 It is a primary rule in the interpretation of a statute, that all 
 the sections thereof are to be construed together, because one sec- 
 tion may often be explanatory of another.^ 
 
 ^ Leycester v. Logan, 3 Kay & J. 446. 
 
 » The Richmond, 3 Hagg. Adm. 431 ; The Mary Caroline, 3 W. Eob. 101, 
 105 ; The Duchesse de Brabant, Swabey, Adm. 264. 
 
 ' Cope V. Doherty, 4 Kay & J. 367, affirmed, 2 De G. & J. 614. 
 
 * The AVild Ranger, Lush. Adm. 553. 
 
 ^ General Iron S. C. Co. v. Schurmanns, 1 Johns. & H. 180. 
 
 * See The Dundee, 1 Hagg. Adm. 109, 121; Wattson v. Marks, U. S. D. C. 
 Penn., 2 Am. Law Reg. 157.
 
 CH. XVII.] LIMITATION OF LIABILITY OF SHIP-OWNERS. 129 
 
 First. At what time is the value of the ship and freight to be 
 estimated ? 
 
 This question was not raised in England until after the statute 
 of 52 Geo. III. c. 59, was passed. The language of this statute 
 differs somewhat from the language of the preceding statutes, and 
 is as follows : " Further than the value of his or their ship or ves- 
 sel, and the freight due or to grow due for and during the voyage 
 which may be in prosecution, or contracted for at the time of the 
 happening of such loss or damage." 
 
 The question first discussed was in respect to the time at which 
 the value of the ship and freight were to be taken, in a case where 
 the master improperly sold the cargo and terminated the voyage, 
 and the court held that the value at the time of the loss, and not 
 that at the commencement of the voyage, was to be taken. ^ All 
 the subsequent cases in England, where the time at which the 
 value should be taken has been discussed, have been cases of col- 
 lision, and it has been held that the value exfsting immediately 
 prior to the occurrence of the accident is that on which the lia- 
 bility of the owners is to be based, even though the vessel in fault 
 sunk immediately after the collision. ^ 
 
 The question we are now considering has been much discussed 
 in this country, and it has been held that in a case of collision, the 
 value of the vessel and freight is to be taken just before the col- 
 lision took place ; ^ and in the case of a wrongful sale of the cargo 
 by the master in a foreign port, the value which the vessel and 
 freight had at the time is to be taken.* 
 
 Second. Does the same rule apply to cases of a breach of the 
 contract of affreightment and those of collision under the third 
 section ? 
 
 In cases of contracts of affreightment the right of action may 
 accrue at different times, according to circumstances. Thus, if on 
 a voyage the goods are embezzled, it may well be that the right 
 does not accrue till the end of the voyage, because the master may 
 
 ' Wilson V. Dickson, 2 B. & Aid. 2. This decision was affirmed in a subse- 
 quent case, under similar circumstances. Cannan v. Meaburn, 1 Bing. 465. 
 
 2 Brown v. Wilkinson, 15 M. & W. 391 ; The Mary Caroline, 3 W. Rob. 101 ; 
 Leycester v. Logan, 3 Kay & J. 446. 
 
 ' Walker v. Boston Ins. Co. 14 Gray, 288. 
 
 * Spring V. Haskell, 14 Gray, 309. ' 
 
 VOL. II. 9
 
 130 ON THE LAW OF SHIPPING. [BOOK I. 
 
 obtain possession of the goods and deliver them, in accordance 
 with the terms of the bill of lading.^ But where the goods are 
 wrongfully sold by the master and the voyage broken up, we think 
 it equally clear that the right of action accrues at once, and that 
 the value of the ship and freight should be estimated at that 
 time.2 
 
 Third, How far does the right of abandonment, given by the 
 fourth section, correspond with the provisions of the maritime law, 
 and what effect does it have upon the third section, as determining 
 the time when the value of the ship and freight is to be taken ? 
 
 In a case under the Maine statute of 1840, it was held, that if 
 the decree exhausted the whole value of the ship and freight, the 
 owner by abandoning would be discharged from all personal re- 
 sponsibility.^ The language, however, of Mr. Justice Story, in a 
 subsequent case under the Massachusetts statute, tends to show 
 that the value of the ship and freight in cases of tort, as well as in 
 cases of contract,* is to be taken at the time when the right of 
 action accrues to the injured party.* 
 
 ^ See Wattson v. Marks, U. S. D. C. Penn., Kane, J., 2 Am. Law Reg. 165. 
 - Spring V. Haskell, 14 Gray, 309. See also Pope v. Nickerson, 3 Story, 465 ; 
 Wilson V. Dickson, 2 B. & Aid. 2 ; Cannan v. Meaburn, 1 Bing. 465. 
 
 * Stinson v. Wyman, Daveis, 172. The action in this case was on a bill of 
 lading to recover for damage done to goods by their being improperly carried on 
 deck. It was also held that the statute was intended to limit the responsibility of 
 the owner for losses occasioned by the fault or negligence of the master, as well 
 as for those which arise from direct and wilful fraud. 
 
 * Pope V. Nickerson, 3 Storj', 465. The action in this case was in personam 
 against the owners of the vessel to recover a cargo of fruit and wine consigned to 
 the plaintiffs. The vessel sailed in a seaworthy condition, but was obliged, on 
 the voyage, to put into an intermediate port in distress. Part of the cargo, which 
 was in a damaged condition, was sold, and the proceeds applied to defraying the 
 expenses of repairing the vessel. This amount not being sufficient, the master 
 obtained the rest on a bottomry bond intended to cover the vessel, cargo, and 
 freight. The vessel then sailed, but was obliged to put back, and the rest of the 
 cargo, part of which was in a perishing condition and part not, was sold together 
 with the ship. The proceeds of vessel and cargo were applied to the payment of 
 the bond, and the surplus paid over to the master. There were three questions 
 presented under the statute of Massachusetts. First, whether the statute applied 
 to cases of contracts made by the master within the scope of his authority. 
 Second, admitting the statute applied, at what time the value of the ship and 
 freight was to be taken; and, third, as to the time of the valuation in case of tort. 
 On the first point Mr. Justice Story was of the opinion, in accordance with the
 
 CH. XVn.] LIMTATION OF LIABILITY OF SHIP-OWNERS. 131 
 
 The first question is, whether the last part of the fourth section, 
 which commences, " And it shall be deemed a sufficient compli- 
 ance with the requirements of this act," applies solely to the for- 
 mer part of the same section, or to the third section. If the for- 
 mer construction be the true one, the right of abandonment is but 
 an extension of the right given by the English and American stat- 
 utes alike of applying to the court where there are several claims 
 pending or apprehended. So that the ship-owner has the right of 
 ceasing to be a party to the suit by transferring his interest to a 
 trustee. The term " for such claimants " would seem clearly to 
 refer to the claimants mentioned in the former part of the section, 
 and not to extend to the third section, in which the word does not 
 occur. It may be said that since the trustee is authorized to hold' 
 for the benefit of " the person or persons who may prove to be en- 
 titled thereto," it follows that the act had reference to a case 
 where there was but one claimant, and this could only .be under 
 the third section. But the answer is, that although there be sev- 
 eral claimants, yet only one may be entitled to recover, and the 
 word " person" is meant to apply to him. 
 
 If, however, we admit that the right of abandonment to a trus- 
 
 authorities cited ante, p. 120, note 4, that the statute was not applicable. He 
 then was of the opinion that if the statute did apply to the case where the master 
 appropriated the proceeds arising from the sale of a perishable cargo to the 
 repairing of the ship, the value of the ship and freight was to be taken as it 
 existed at the time of such appropriation, and not subsequently, when it was bur- 
 dened with a bottomry bond. He said, p. 498 : " But at what time is this value 
 to be ascertained and fixed ? It must be the value at the time when the right of 
 action against the owners fii-st accrues, and not at any subsequent period. Sup- 
 pose, after the right of action has attached, the ship perishes, that will not affect 
 the right of recovery of the shipper in a case of tort : and a fortiori it will not in 
 a case of contract made by the master, by and under the authority of the 
 owners." In regard to the third question, as to the liability of the ownei-a for the 
 goods finally sold, Mr. Justice Story said, p. 504 : '•' They are liable therefor to the 
 extent of their interest in the schooner and freight, and no further, at the time of 
 the misconduct and tortious sale. But at that very time the ship was under a 
 bottomry bond greater than her value, and by the breaking up of the voyage, and 
 the sale of the schooner, the bond became absolutely due to the bondholders. 
 These were acts of the master contemporary with the voluntary sale of the cargo, 
 and indeed they may all be treated as one and the same transaction, constituting 
 parts of the res gesta, and done, as it were, una flatu et uno intuitu. So that, at 
 the time, the owners had, in effect, no interest whatsoever in the schooner or 
 freiafht. but the value of both had been exhausted."
 
 132 ON THE LAW OF SHIPPING. [BOOK I. 
 
 tee does not exist where there is only one demand against the ves- 
 sel, yet the fact that there may be an abandonment where there 
 are several demands must have a material bearing upon the ques- 
 tion of value under the third section, unless we construe the right 
 of abandonment in any case to mean merely the transfer of the 
 amount of liability of the owner. Otherwise a ship-owner may be 
 liable for a large amount if there is one freighter, and liable for a 
 small amount if there are two freighters ; and this could hardly 
 have been the intention of Congress. So, too, in regard to the 
 exercise of this right. If we hold that a ship-owner can abandon 
 a damaged ship, and be released from all further liability, it would 
 seem to follow that he should not be held for any greater amount 
 if his vessel is entirely lost, and he has nothing to give up.^ 
 
 Fourth. Is an abandonment allowed in a case of collision un- 
 der the fourth section ? 
 
 The first part of this section provides for the case of " any such 
 embezzlement, loss, or destruction," being suffered " by several 
 freighters or owners of goods, wares, or merchandise, or any prop- 
 erty whatever, on the same voyage." The third section embraces 
 three classes of cases : — First. " Embezzlement, loss, or destruction, 
 by the master, officers, mariners, passengers, or any other person 
 or persons, of any property, goods, or merchandise, shipped or put 
 on board of such ship or vessel." Second. " Any loss, damage, 
 
 ' This is so held in Wattson v. Marks, U. S. D. C. Penn., 2 Am. Law Reg. 
 157. The libel was in personam upon a contract of affreightment. The vessel 
 was wrecked on the coast of California, and at some time, either shortly before or 
 after she struck, the goods of the libellant were stolen by some person unknown. 
 Kane, J., said, p. 163: "But whether the robbery preceded or followed the 
 moment of wreck, or was contemporaneous with it, is in my judgment of no im- 
 portance." This opinion proceeds on two grounds ; first, that aside from the fourth 
 section of the statute the value of the ship and freight is to be taken at the time 
 the right of action accrued to the shipper, and that " the right of action, in a con- 
 tract of affreightment against the carrier, unlike that which grows out of a collis- 
 ion, does not accrue till the end of the voyage, or the lapse of a reasonable time 
 for the delivery of the cargo." And second, because under the fourth section the 
 measure of the ship-owner's liability must be, " in cases of affreightment at least, 
 the value of the vessel and freight at the time of suit brought." The reason given 
 for this is, that the transfer of bis interest could not pass more than he had at the 
 time. In Spring v. Haskell, 14 Gray, 288, it is, however, held, that the clause 
 relative to abandonment only applies where an abandonment is actually made, and 
 is of no effect if the vessel is totally lost before reaching her port of final destination.
 
 CH. XVII.] LIMITATION OF LIABILITY OF SHIP-OWNERS. 133 
 
 or injury by collision." Third. " Any act, matter, or thing, loss, 
 damage, or forfeiture, done, occasioned, or incurred, without the 
 privity or knowledge of such owner or owners." Suppose, then, 
 that a vessel with a cargo on board, through the negligence of her 
 officers,' runs into another vessel. The owners of the first vessel 
 are liable to the owners of the second, and are also liable to the 
 freighters on board their vessel, and to the freighters on the other 
 vessel. Can the owners of the first vessel, by abandonment, free 
 themselves from all further liability ? 
 
 Under all the preceding statutes an apportionment was allowed 
 where several persons were concerned, in all cases where the lia- 
 bility was limited, if there was only one person who had sustained 
 an injury. Thus the language of 7 Geo. II. c. 15, is, " If several 
 freighters .... shall suffer any loss by any of the means afore- 
 said." And in the 53 Geo. III. c. 157, which applies to a loss by 
 collision, the language is, " By any means for which the responsi- 
 bility of any owner or owners is limited by this act as aforesaid." 
 It may, therefore, be questioned whether the word "loss" in the 
 fourth section was not intended to cover every kind of loss men- 
 tioned in the previous section, occasioned or incurred without the 
 privity or knowledge of the ship-owners.^ 
 
 1 In Walker v. Boston Ins. Co. 14 Gray, 307, Merrick, J., held that the right of 
 abandonment was limited to the case of losses sustained by freighters or shippers 
 of property put on board the vesst-l, in consequence of its embezzlement or de- 
 struction by the mister, mariners, or passengers on board the ship. So in Barnes 
 V. Steamship Co. U. S. C. C. Penn., 1868, Grler,J., Legal Intelligencer, June 19, 
 1868, where a vessel belonging to the defendants ran into another vessel, and 
 both were sunk, and suits were brought against the defendants by the owners of 
 the other vesst-l and by owners of cargo on their own vessel, it was held that the 
 fourth section of the act of 1851 had no application to either of these claims. In 
 Wright V. Norwich Transp. Co. 1 Bened. Adm. 156, SMpman, J., a suit in 
 personam to recover damages for the loss of a schooner and her cargo, caused by 
 a collision with a steamboat owned by the respondents, it was contended that the 
 liability limited.by the act, so far as it relates to collision, was confined to damages 
 done to property on board the faulty ves-el ; that the sole object of Congress was 
 to relieve the owners, whose vessel may be in fault, from the unlimited liability to 
 which they would otherwise be held as common carriers. But it was held that 
 the ai;t applied to all cases of collision, and Shipman, J., said : " The reasons for 
 limiting the liability for injuries resulting to other vessels and their cargoes are 
 just as weighty as those for limiting it for injuries done to the cargoes of the ves- 
 sels in fault. Collisions are frequent, their hazards great, and the injuries inflicted 
 upon other vessels and cargoes often far exceed the value of the faulty ship and
 
 134 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Fifth. Ill what court may appropriate proceedings be taken ? 
 Tlie language of the statute upon this subject is very broad ; — 
 
 her pending freight. The disaster out of which this controversy has sprung pre- 
 sents an instructive lesson on this point. Had the Hbellants' vessel been con- 
 demned as in the wrong, her owners, according to their present argument, would 
 have been liable for the whole amount of damages done to the City of Norwich 
 and her cargo, exceeding by many times over the amount or value of their inter- 
 est In the Van Vliet. The owners of the latter would not only have lost their 
 vessel and her pending freight, amounting to over S 20,000, but would have been 
 responsible to other parties for probably S 100,000 more. It was against just 
 such calamities, out of all proportion to the magnitude of the capital invested, that 
 I understand this act to provide." The fourth section of the act was considered to 
 apply to cases of collision. Shipman, J., said: "It was undoubtedly foreseen by 
 Congress that In cases of embezzlement and kindred torts, and in cases of collis- 
 ion, there would arise instances where several different parties would have 
 claims for damages against the owners of a vessel, exceeding her value In the 
 aggregate, and would very likely endeavor to enforce them in separate suits and 
 in different tribunals, and in order to protect the Interest of all parties it was 
 necessary that there should be some way provided by which the amount to which 
 the liability of the owner Is limited should be distributed among those entitled to 
 recover in proportion to their respective claims. This state of things would exist, 
 or at least might exist, whenever property on board either one or both colliding 
 vessels, belonging to parties other than such owners, was destroyed or Injured, and 
 the whole amount of damage should exceed the value of the faulty vessel and her 
 pending freight. Indeed, It might occur where one vessel strikes two others In 
 the same collision, as has more than once happened, and the owners of each In- 
 jured vessel should bring a separate suit. The language of this fourth section is 
 therefore very broad, and extends the power of taking proceedings for an appoi*- 
 tionment to the owner of the faulty vessel, and to the several owners or freighters 
 of any property whatever lost or destroyed by the tortious act of those on board. 
 Whenever, therefore, there are several claimants for damages arising out of the 
 same tortious act, who have brought, or may be entitled to bring, separate suits, 
 the necessity for apportioning the amount for which the owners of the vessel in 
 fault are liable, arises. The respondents In the present suit find themselves In 
 that condition. la addition to the claims of these Hbellants, upon which large 
 damages have been awarded against them, they are liable, assuming the judgment 
 of this court as to the cause of the collision to be correct, to freighters or owners 
 of goods on the City of Norwich for a much larger amount ; and they aver that 
 the whole sum for which they are thus liable exceeds the value of their interest 
 in their boat and pending freight at the moment preceding the collision. They 
 are entitled, therefore, to take proceedings to have the amount for which they are 
 liable apportioned among the parties entitled thereto. This Is one species of relief 
 which the act intended to provide. The other, the transfer of the ship and freight 
 to a trustee, they have not resorted to, and, therefore, nothing need be said on the 
 subject." Relief was, however, denied upon another ground. See jjOi>'i,p. 135, n. 1.
 
 CH. XVIl] LIMITATION OF LIABILITY OF SHIP-OWNERS. 135 
 
 " And for that purpose the said freighters and owners of the prop- 
 erty, and the owner or owners of the ship and vessel, or any of 
 them, may take the appropriate proceedings in any court.'' The 
 term " any court " must, however, we think, mean any court 
 which, by its form of process, and the general nature of its juris- 
 diction, is adapted to giving the relief intended by the act ; and 
 this is a court having equity powers.^ 
 
 ^ In Wright y. Norwich Transp. Co. 1 Bened. Adm. 156, Shipman^ 3., the 
 schooner S. Van Vliet, owned by the libellants, and the steamboat City of 
 Norwich, owned by the respondents, came into collision in Long Island Sound. 
 The collision sunk the schooner, and both she and her cargo were lost. The 
 steamboat was greatly damaged by the blow, and soon after took fire and sunk. 
 She had on board a valuable cargo which was lost. The steamer was subse- 
 quently raised and repaired at great expense. 
 
 A libel in personam against the owners of the steamboat was filed, and after 
 answer and full hearing, the steamboat was held in fault, and a decree entered 
 against her owners, with an order of reference to a commissioner to compute the 
 damages to the owners, both of the schooner and her cargo, and report the same 
 to the court. The commissioner heard the parties and made a special report. 
 Upon motion that the court confirm the report, counsel were heard upon the 
 questions of law raised pertaining to that branch of the case. 
 
 The report was confirmed, and the damages of the owners of the schooner 
 fixed at $ 19,975, and those of the owners of the cargo at $ 1,921.63. 
 
 At this point, however, the respondents moved the court to reserve the final 
 decree, that they might " take appropriate proceedings " and offer evidence to 
 this court " for the purpose of apportioning the sum for which the owners of the 
 steamboat may be liable, among the parties entitled thereto." The respondents 
 claimed that they had laid the foundation for this proceeding in their answer by 
 averring that the damages resulting from this collision to third parties greatly 
 exceed the value of their boat and her freight then pending. No formal steps 
 were taken by way of presenting evidence to the court of the amount of the 
 claims of those whose property was on board the boat which was in fault, and 
 injured or destroyed by her taking fire and sinking, but, upon suggestion of the 
 court and by consent of counsel, such evidence was considered as offered under 
 this motion and objected to, and the general question of the right of the re- 
 spondents to relief and the power of the court to grant it, was argued at length. 
 
 It was held that a court of admiralty was not the proper court for such a pro- 
 ceeding. Shipman, J., said : " The power given to parties, to protect their rights 
 by an apportionment of the sum for which the owners of the vessel are liable, is 
 expressed in vague and uncertain terms, both as to the nature of the proceedings to 
 be taken and the court which is to administer them. We are, therefore, brought to 
 the consideration of our last question, how far this court can grant the relief 
 which this act intended to provide. The language of the act is, that the parties 
 authorized, or any one of them, ' may take the appropriate proceedings in any court
 
 136 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Sixth. Is the part-owner of a vessel liable for the value of the 
 entire vessel, or only for the value of his interest in the same ? 
 
 for the purpose of apportioning the sura,' &c. What is here meant by ' appro- 
 priate proceedings ' V It is reasonable to suppose that Congress, by this language, 
 referred to some course of legal procedure already known to the law, and admin- 
 istered by some distinct tribunal, according to a settled practice. As this act was 
 framed with full knowledge of the various English acts relating to the same 
 subject, and was intended to accomplish substantially the same result, we may 
 infer that the appropriate proceedings contemplated were substantially such as 
 have been employed in tlie enforcement of the English act. These were equity 
 proceedings, administered by the High Court of Chancery. That tribunal was 
 empowered to entertain suits of this character, and to draw the whole con- 
 troversy within its jurisdiction, by stopping actions in all other courts relating to 
 the same subject-matter. The most ample powers were conferred on that court 
 to enable it to make a complete, effectual, and final disposition of the litigation, 
 so as to bind all parties in interest. These powers were transferred to the High 
 
 Court of Admiralty in 1861 Some such powers as those exercised by 
 
 the English courts must be possessed and employed by whatever tribunal effectu- 
 ally administers this act of Congress. It must be able, by a binding decree, to 
 settle the whole controversy, and conclude the parties in interest. Now our 
 present inquiry is, whether this court possesses powers commensurate with such a 
 task ? Waiving now the question whether, if it had the power at all, it could 
 proceed to exercise it in connection with, and as a part of the present suit, I 
 pass to the inquiry, whether it can do so under any form of proceeding, unless 
 its jurisdiction is first enlarged. It is true that this section says that the parties, 
 or any of them, ' may take the appropriate proceedings in any court for the pur- 
 pose of apportioning,' &c. Of course these words ' any court,' are not to be 
 taken in their literal sense. From necessity we must restrict and qualify them 
 at the start. A court whose jurisdiction is exclusively criminal, cannot be 
 deemed within their meaning. No one will doubt that civil, as distinguished 
 from criminal tribunals, alone were indicated. Nor can we suppose for a moment 
 that it was intended by this act to authorize a resort to all civil courts. Tribu- 
 nals of limited and inferior jurisdiction, like probate, surrogate, or local city 
 courts, are not within the meaning of these words, although within their literal 
 expression. They undoubtedly refer, as the latter clause of this section, when 
 providing for the transfer of the vessel to a trustee, designates to courts of 
 competent jurisdiction, tribunals having a range of authority and a mode of 
 procedure adequate, or at least adapted, to accomplish the purposes the act had 
 in view. Now the only courts of a character at all resembling this description, 
 are courts possessing a general equity jurisdiction. W^hether even such courts, 
 as constituted in this country, are, without the aid of special legislation, adequate 
 to this task, I do not now stop to inquire. Nor do I pause to ask the question, 
 whether the equitable jurisdiction of any other court of the United States, as the 
 law now stands, is equal to the work. It is sufficient for me here, to determine 
 whether this court has any such power. I answer unhesitatingly, that it has not.
 
 CH. XVII.] LIMITATION OF LIABILITY OF SHIP-OWNERS. 137 
 
 The words of the statute are : " That the liability of the owner 
 or owners .... shall in no case exceed the amount or value of the 
 
 It does not pertain to its jurisdiotion in admiralty, certainly not in a suit in per- 
 sonam, where neither the faulty ship and freight, nor their amount or value, are 
 within the control of the court. In a suit in personam, it can render no judg- 
 ment that would bind parties not before it. None of these freighters are parties 
 to this suit, and it is doubtful if this court has power to make thein parties. Cer- 
 tainly it has no power to make parties of such as reside and remain beyond the 
 limits of this district. 
 
 "It is hardly necessary to add that this court has no equity powers adequate to 
 the exercise of the duty supposed to be conferred upon some court by this section 
 of the act. Its jurisdiction depends upon the acts of Congress, and with the 
 exception of a single subject-matter, no equity jurisdiction has ever been con- 
 ferred upon it. I presume it will hardly be contended that, because Congress 
 has authorized, in terms, appropriate proceedings to be taken in any court, it has, 
 by implication, conferred upon every court powers adequate to the work of 
 effectually administering this act. And if it has not, this court is without juris- 
 diction, without rules of practice, and without the power to make such rules 
 adapted to accomplish the object of the statute and give effectual relief to the 
 parties interested in the sum for which these respondents are liable, as damages 
 for this collision. 
 
 " The conclusion is that the court has no power to grant the relief asked tor on 
 this motion, or under any form of proceeding that could be instituted. The evi- 
 dence otTered is therefore rejected, and the motion denied. And as it is con- 
 ceded that the value of the City of Norwich and her pending freight, at the time 
 of the collision, was much greater than the damages assessed in this case, a 
 decree must be entered for the libellants for the sum fixed by the court on con- 
 firming the commissioner's report." 
 
 In Tlie City of Norwich, 1 Bened. Adm. 89, which was a suit growing out of 
 the collision mentioned in the preceding case, an action in rem was brought 
 against the steamboat by an owner of goods shipped on the steamboat. While 
 the vessel was in the custody of the court, the claimants filed a petition setting 
 forth that the losses by the collision and fire exceeded the value of the vessel and 
 freight then pending, and that there was reason to anticipate actions against her 
 to recover amounts exceeding her value, and prayed for leave to file a stipulation 
 in the appraised value of the vessel and freight, such stipulation to be taken for 
 the benefit of all persons who should show themselves entitled to liens upon the 
 vessel for losses occasioned by the collision and fire aforesaid, and that upon the 
 filing of such stipulation the vessel be declared discharged of such liens. They 
 further prayed that the owners of said vessel might be declared to be entitled to 
 the benefit of the act of 1851, and be also declared, upon the filing of the stipu- 
 lation aforesaid, to be discharged from all liability for any losses arising out of the 
 accident in question. It was held that the discharge of the vessel from the liens 
 created by law, on giving a stipulation, could not be obtained by virtue of the act 
 of 1851 ; that the provisions in the fourth section, authorizing the owners to take
 
 138 ON THE LAW OF SHIPPING. [BOOK I. 
 
 interest of such owner or owners respectively." The fourth sec- 
 tion provides that " the sard freighters and owners of the property 
 and tlie owner or owners of the ship or vessel, or any of them, may 
 take the appropriate proceedings," &c., and that " he or they may 
 transfer his or their interest to a trustee." A question may arise 
 under the fourth section whether one part-owner of a vessel can 
 institute proceedings. The words " or any of them " may mean 
 any of the classes mentioned. By the act of 7 Geo. II. c. 15, the 
 limitation of liability is " the value of the ship or vessel " ; and if 
 any of the owners bring a bill in equity for an apportionment, they 
 are obliged to bring it on behalf of themselves and the other own- 
 ers, and to pay into court the value of the vessel. The language 
 of the other English acts is similar. The Massachusetts act of 
 1818 and the Maine act of 1821, are taken from the act of 7 Geo. 
 II. and their corresponding sections are almost word for word the 
 same with that of 7 Geo. 11. except this notable difference : — 
 In 7 Geo. .II. the limitation is, " the value of the ship or vessel." 
 In the Massachusetts and Maine acts the language is, " The value 
 of the interest which such owner or owners have or had at the time 
 of such shipment in the ship or vessel." This language fixes clearly 
 the time of ascertaining the value, and we think the intention is 
 also clearly manifest to fix the amount for which each owner shall 
 be liable to the value of his interest. 
 
 These statutes, however, provided that the whole value should 
 be brought into court in case a bill of equity was brought, follow- 
 ing the language of the 7 Geo. II. and making the sections incon- 
 sistent with each other. The inconsistency exists in the Revised 
 
 " appropriate proceedings," does not warrant this application ; that a court of 
 admiralty could not in an action in rem against a vessel by a single freighter, 
 make, upon a petition, a summary order declaring the owners of the vessel free 
 from personal liability to any freighter on filing a stipulation as proposed ; that 
 the " appropriate proceedings " must be in personam, bringing the parties to be 
 affected by it before the court ; that such a proceeding would not be within the 
 jurisdiction of an admiralty court, and that the relief sought could not be 
 afforded under any of the provisions of the act of 1851, but that the application 
 might be treated as one for a release of the vessel on bail ; that under the cir- 
 cumstances, a stipulation in the form tendered would protect all the rights of the 
 lien creditors, and as effectually relieve the vessel from all the liens provided for 
 in it, as the ordinary stipulation does from the claims made in the particular libel ; 
 that thei-efore the application to bond the vessel in this way might be granted.
 
 CH. XVir.] LIMITATION OF LIABILITY OF SHIP-OWNERS. 139 
 
 Statutes of Massachusetts, but does not in the Revised Statutes of 
 Maine, from which the Act of 1851 was taken. 
 
 If there should be any limitation of the liability of ship-owners, 
 it seems to be just that the liability of a part-owner should be 
 limited to the value of his interest. 
 
 A diiferent view has, however, been taken in Massachusetts, and 
 it is held by the supreme court of that State that a part-owner is 
 liable for the full value of the vessel. ^ 
 
 And it is held by the same tribunal that the value of the own- 
 er's interest, under the third section, is its value unincumbered, 
 and that no allowance is to be made for a mortgage.^ 
 
 In respect to the " freight then pending," it has been held that 
 the earnings of the vessel in transporting the goods of the owners 
 are to be included.^ And if the cargo is damaged by the unsea- 
 worthiness of the vessel, it has been held that the owner of the 
 vessel cannot abandon his interest in the vessel, because he is pre- 
 sumed by law to be cognizant of such unseaworthiness, and the 
 loss is therefore not " without his privity or knowledge." * If 
 the owner of the vessel is not owner of the freight, the freight does 
 not contribute to the loss. ^ 
 
 Section 5 provides that the charterer of a vessel, if he mans, 
 victuals, and navigates such vessel at his own expense, or by his 
 own procurement, shall be deemed the owner of such vessel, 
 within tlic meaning of the act ; and such vessel, when so char- 
 tered, shall be liable in the same manner as if navigated by the 
 owner. 
 
 There is no similar section in the English statutes. The early 
 Maine and Massachusetts statutes contained like provisions, and 
 the Maine act of 1821 also contained a provision giving the owner 
 of the vessel a right of action against the charterer to recover the 
 
 * Spring V.Haskell, 14 Gray. 309. 
 
 ^ Spring V. Haskell, 14 Gray, 309. So in Barnes ?;. Steamship Co. cited ante, 
 p. 133, n. 1, Grier, J., held that the owners of the vessel injured had a right to 
 priority of payment out of the fund, without any deduction for or on account of 
 bottomry, mortgage, pilotage, towage, seamen's wages, or other contracts of the 
 masters or owners of the vessel doing the damage. See, however, Pope v. Nick- 
 erson, 3 Story, 465. 
 
 ' Allen V. Mackay, 1 Sprague, 219. 
 
 * In re Sinclair, U. S. D. C. South Carolina, 8 Am. Law Reg. 206. 
 
 * Walker v. Boston Ins. Co. 14 Gray, 288,
 
 140 ON THE LAW OF SHIPPING, [BOOK I. 
 
 value of tlie vessel, in case a loss was compensated for from the 
 freight or the proceeds of the sale of the vessel. By the Maine 
 statutes of 1840, the right was further extended, so as to give the 
 owner of the freight a claim against the charterer, if the freight 
 made compensation. It has been held that if the freight is owned 
 by a person other than the owner of the ship, the owner of the 
 freight is not liable if he does not man, victual, and navigate the 
 ship.i 
 
 Section 6 provides, that the act shall not affect the remedy 
 against the master and mariners, and is taken partly from the Re- 
 vised Statutes of Maine,^ and partly from the 53 Geo. III.^ Under 
 this last-mentioned statute it has been held that if a part-o\<^ner is 
 in command of the vessel, his negligence does not deprive the other 
 part-owners of the benefit of the statute.^ 
 
 Section 7 provides, that any person or persons shipping oil of 
 vitriol, unslacked lime, inflammable matches, or gunpowder, in a 
 ship or vessel taking cargo for divers persons on freight, without 
 delivering at the time of shipment a note in writing, expressing 
 the nature and character of such merchandise, to the master, mate, 
 officer, or person in charge of the lading of the sliip or vessel, shall 
 forfeit to the United States one thousand dollars. 
 
 It is then provided that, " This act shall not apply to the owner 
 or owners of any canal boat, barge, or lighter, or to any vessel of 
 any description whatsoever, used in rivers or inland navigation." 
 
 The last part of this section follows the language of 53 Geo. III.^ 
 It has been held that a vessel on Lake Erie, bound from Buifalo 
 to Detroit, enrolled and licensed for the coasting trade, and en- 
 gaged in navigation and commerce as a common carrier between 
 ports and places in different States upon the lakes and navigable 
 waters connecting the same, is not a vessel used in inland navi- 
 gation.^ 
 
 * Walker v. Boston Ins. Co. 14 Gray, 288. 
 2 1840, c. 47, § 11. 
 
 ' Ch. 159, § 4. 
 
 * Wilson V. Dickson, 2 B. & Aid. 2. 
 
 ^ Ch. 159, § 5. This also excepted "any ship or vessel not duly registered ac- 
 cording to law." 
 
 « Moore v. American Transp. Co. 24 How. 1, 5 Mich. 368. See also Walker 
 V. Transp. Co. 3 Wallace, 150. See, under 26 Geo. III. c. 86, Hunter v. M-Gown, 1 
 Bligh, 573.
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 141 
 
 CHAPTER XVIII. 
 
 OF MATERIAL MEN AND THEIR LIENS. 
 
 The persons employed to repair a ship, or, in general, to do 
 any work abont her, and those who furnish for her use supplies 
 of tilings necessary to her equipment and safe navigation, are 
 known in the law of shipping as material men ; they are defined 
 in Jacobsen's Sea Laws ^ as " the persons who furnish and con- 
 struct the different materials of a ship " ; but a somewliat broader 
 sense is usually given to this plirase, and Lord Stowell, in one 
 ■case, cited a report of Sir Leoline Jenkins, made to the king, in 
 which that learned judge said : " Tliose are commonly called 
 material men, whose trade it is to build, repair, or equip ships, or 
 to furnish them with tackle and provision necessary in any kind."^ 
 
 We propose in this chapter to consider the liens of material men 
 so far as they exist at common law, or are given by State statutes, 
 reserving the consideration of the lien given by the maritime law, 
 and the enforcement of the lien given by the State laws, by a court 
 of admiralty, for our chapters on Admiralty Jurisdiction. 
 
 In England, from the time of Charle II. until 1840, the lien of a 
 material man was limited to the case of a shipwright or other per- 
 son to whom possession of the ship liad been given for the purpose 
 of repair ; he might retain his possession for his wages or charges 
 as any other workman may any chattel (a tailor, clothing ; a 
 watchmaker, a watch), by the common law of bailment.^ In 
 England it has been held that if material men, who repair a vessel, 
 retain possession of her and claim a common-law lien for the re- 
 pairs made, they cannot add to this charge the expense of keeping 
 the vessel, since they keep her for their own benefit.^ But we 
 
 ' Page 357, note. 
 
 " The NepUine, -3 Ha<rg. Adm. 129, 142. 
 
 =" Ex parte :§Ian(l, 2 Rose, 91 ; Franklin v. Hosier, 4 B. & Aid. 341 ; The Vi- 
 bilia, 1 W. Rob. 1, G. But he cannot detain the vessel against the anthorityof 
 the court of admiralty, when tlie ship is in the possession of its officer, though 
 that court will then protect his rights. The Harmonie, 1 W. Rob. 1 78. 
 
 * Somes V. British Empire Shipping Co. 8 H. L. Cas. 338.
 
 142 ON THE LAW OF SHIPPING. [BOOK I. 
 
 know of no reason why the material men could not maintain an 
 action against the ship-owners for any damages they might suffer 
 in this way from their neglecting to take away the vessel when re- 
 paired, and pay for the repairs. 
 
 This common-law lien is undoubtedly in force in this country. ^ 
 Many of our States have, by statute, given a lien to material 
 men against ships in their home ports.^ We must refer to these 
 statutes for their especial provisions, which do not, however, gener- 
 ally differ very much from the rules of admiralty in relation to the 
 same lien. We will here state some of the results of adjudication 
 upon them. 
 
 In New York the lien of the builder attaches as soon as the 
 structure assumes the form of a ship.-^ The statute does not apply 
 to canal boats.* But it has been held to apply to an old steamboat 
 which was fitted up as a theatre, and used as such at different 
 river ports, and the vessel was held liable though some of the sup- 
 plies were furnished for the theatre.^ A debt for goods furnished 
 is not contracted till the goods are actually delivered, and an 
 
 ^ Nicholson v. May, Wright, 660 ; The General Smith, 4 Wheat. 438, per Story, 
 J. ; The Sch. Marion, 1 Story, 68. 
 
 ^ Maine, Rev. Stats, c. 91, §§ 6 - 14 ; New Hampshire, Compiled Statutes of 
 
 1853, tit. XV. c. 139; Massachusetts, Acts of 1848, c. 290, Acts of 1855, c. 231, 
 Gen. Stats. 1860, c. 151 ; New York, 2 Rev. Stats. Denio & Tracy's ed. 733, 
 Act of 1855, c. 110, amending the preceding statute, and Act of 1858, c. 247, 
 providing for the registry of liens and incumbrances upon boats navigating the 
 canals of the State ; Laws of Pennsylvania, Dunlop's ed. 681, Act of 1858, No. 
 404 ; Georgia, Cobb's Dig. 426, Act of 1852, No. 137 ; Alabama, Code of 1852, 
 p. 491 ; Florida, Stat, of 1847, Thompson's Dig. 413, Act of 1848, c. 268, Act of 
 
 1850, c. 400 ; Arkansas, Rev. Stats, c. 14 ; Tennessee, Act of 1833, c. 35; Ken- 
 tucky, Act of 1839, c. 1088, Act of 1841, c. 267 ; Statutes of Ohio, Swan's ed., 
 
 1854, c. 26, p. 185; Compiled Laws of Michigan, 1857, c. 149, vol. 2, p. 1313; 
 Indiana, Rev. Stats. 1852, vol. 2, p. 183 ; Illinois, Rev. Stats. 1845, p. 71, ed. of 
 1858, vol. 2, p. 785; Missouri, Rev. Stats. 1855, vol. 1, p. 302; Iowa, Code of 
 
 1851, p. 293, Act of 1854, c 125 ; Wisconsin, Rev. Stats. 1849, c. 116; Laws of 
 California, First Session, p. 189, c. 75, § 2, Compiled Laws of 1853, p. 576, c. 6, 
 § 318. In Louisiana, a similar privilege exists under the general Spanish law. 
 See Bourcier i\ Schooner Ann, 1 Mart. La. 165. See also The Civil Code, art. 
 2748, and the case of Peyroux v. Howard, 7 Pet. 324, 341. 
 
 « Phillips V. Wright, 5 Sandf. 342. « 
 
 * Many v. Noyes, 5 Hill, 34. But special provision is made for canal boats by 
 
 the act of 1858, c. 24 7. 
 
 ^ Pendleton v. Franklin, 3 Seld. 508, affirming the same case, Franklin v. 
 
 Pendleton, 3 Sandf. 572.
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 143 
 
 agreement to deliver is not enongh.^ If the creditor permits the 
 vessel to sail without enforcing his lien, he loses it, but if she sails 
 on a trial trip merely, for the purpose of testing her machinery, 
 this is not a departure within the statute .^ So, if she leaves the 
 State in a fraudulent manner, at a time when she was not legally 
 liable to arrest.^ Where repairs were put on a boat running from 
 New York to Albany, at different times, under one general order to 
 repair the boat when necessary, it was held that the contract was 
 not an entire or indivisible one, but that each job constituted a 
 separate debt, and that every trip of the boat was a departure 
 within the statute.^ It is sufficient to give a lien under the statute 
 for money advanced for supplies furnished to a vessel in her home 
 port, that the items of account amount in the aggregate to fifty 
 dollars ; and it is not necessary that each item should amount to 
 this sum.^ Wood for fuel has been held in New York not to be 
 included within the term " supplies," ^ But in Illinois the point 
 has been determined the other way." And in New York it has 
 been held to come within the term " stores." ^ 
 
 In Maine, the lien is on the vessel while building, and continues 
 for four days after she is launched. If the materials are sold on 
 time, and this time has not elapsed at the expiration of the four 
 
 * Veltman i'. Thompson, 3 Comst. 438; The Alida, Abbott, Adm. 173. 
 ^ Hancox v. Dunning, 6 Hill, 494. 
 
 * The Steamboat Joseph E. Coffee, Olcott, Adm. 401. See also Nicholson v. 
 May, Wright, 660. By the statute under which these decisions were made, the 
 debt ceased to be a lien at the expiration of twelve days after the day of de- 
 parture to a port within the State. And in all cases the lien was to cease 
 immediately after the vessel's leaving the State. This is amended by the act of 
 1855, so that the lien remains in force till the expiration of sixty days after the 
 return of the vessel to the port at which she was when the debt was contracted, 
 but in all cases the lien ceases immediately after the vessel leaves such port, unless, 
 within ten days after such departure, a specification of the lien is sworn to and 
 filed in the county clerk's ofiice of the county where such lien is created. 
 
 * Rockafeller v. Thompson, 2 Sandf 395 ; The Alida, Abbott, Adm. 165. The 
 same rule was laid down in a suit against the same boat, for coal furnished at dif- 
 ferent times under one agreement. Abbott, Adm. 173. See also The Jenny 
 Lind, 3 Blatchf. C. C. 513. 
 
 * The St. Mary, 2 Blatchf. C. C. 329. 
 
 * Johnson v. Steamboat Sandusky, 5 Wend. 510; The Fanny, cited Abbott 
 Adm. 185. 
 
 ^ Clark V. Smith, 14 111. 361. 
 
 » Crooke v. Slack, 20 Wend. 177; The Alida, Abbott, Adm. 173, 185.
 
 144 ON THE LAW OF SHIPPING. [BOOK I. 
 
 days, the lien is gone.^ The materials must be actually used in 
 the construction of the vessel, and it is not sufficient that they 
 were furnished under a representation that they were to be used.^ 
 The statute does not embrace tools or other articles used by the 
 workmen in doing their work, but only materials which go into 
 the ship and make part of it when finished.^ Nor has a person a 
 lien who procures insurance on a cargo of timber purchased for 
 and used in the construction of a ship, he being no otherwise in- 
 terested in the timber. But it would seem that he would have the 
 lien, were he the furnisher of the materials.'* 
 
 ' Scudiler v. Balkam, 40 Maine, 291. See also The Kearsarge, Ware, 2cl ed. 
 546, 550. 
 
 * Taggart v. Buckmore, 42 Maine, 77. It was also held in this case that if 
 the materials were furnished for one vessel and used in another, the lien would 
 attach to the latter ; and that if some of the materials were used and others not, 
 and judgment should be obtained for the amount of the whole, the lien would be 
 waived, as the value of the articles not used would be merged in the judgment, and 
 could not be separated from the other part. In The Young Sam, U. S. C. C, 20 
 Law Rep. 608, Mr. Justice Curtis held, that, under the Maine statute, the party 
 furnishing the materials must have reference to some particular vessel, in the 
 construction or repairs of which the lien was intended to be created. And a 
 doubt was expressed whether any case could come within the statute, if the par- 
 ticular vessel had not begun to be built before the sale of the materials. See also 
 p. 146, n. 3. In Sewall v. The Hull of a 2^ew Ship, Ware, 2d ed. 565, the 
 libellant fui-nished timber to ship-builders, who at the time were building the 
 vessel against which the lien was sought to be enforced. Nothing was said at the 
 time that the timber was to be used tor any particular vessel, and it did not appear 
 that it was charged in the books to this vessel. The court held that no lien 
 existed. So it is not sufficient to prove that the materials were sold for the 
 declared purpose of being used in the building of the vessel, but their positive use 
 must be shown. And if only part was used, the material man must show what 
 that was. Phillips v. Wright, 5 Sandf 342. See also Clark v. Smith, 14 111. 361. 
 In The Kiersage, 2 Curtis, C. C. 421, it was held, overruling the decision of the 
 district court, in the same case. Ware, 2d ed., 546, that if materials are furnished 
 for two vessels being built for the same person, the party furnishing them has not 
 a Hen on one vessel for all materials, but only for what was used in the vessel 
 proceede 1 agiinst, though both the vessels were of the same size and model. 
 
 * The Kearsirge, Ware, 2d ed. 546. In Ames v. Dyer, 41 Maine, 397, it was 
 held that no lien existed for materials furnished for the moulds of the ship, or for 
 labor eu.[)lo)ed in making the same. 
 
 ' Ttie Kearsarge, Ware, 2d ed. 546, 549. Judge Ware, in this case said: 
 " Another item in the account objected to, is a charge of insurance paid by the 
 libeliants on a cargo of timber procured for the ship and used in her construction. 
 Had such a charge been made by the vendor and furnisher of the materials, it
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 145 
 
 The Massachusetts statute of 1848 ^ provided that whenever a 
 debt is contracted for labor performed, or materials used, in the 
 construction or repair of, or for provisions and stores, or other ar- 
 ticles furnished for or on account of, any ship or vessel within the 
 State, such debt shall be a lien upon such ship or vessel, and shall 
 be preferred to all other liens thereon, except mariner's wages. It 
 also provides that when the vessel departs from the port at which 
 she was when such debt was contracted, to some other port within 
 the State, such debt shall cease to be a lien at the expiration of 
 twenty days after the day of such departure, and in all such cases 
 such lien shall cease immediately after the vessel shall have arrived 
 in any port out of this Commonwealth. 
 
 The term " construction " in this statute has been held to ex- 
 tend to the alterations of a vessel.- And where a vessel was sold 
 on a condition, upon the non-performance of which she was to 
 revert to the original owners, and the purchaser took possession 
 and made alterations, and subsequently, by the non-performance of 
 the condition, the vessel reverted to the original owners, it was 
 held that the carpenter who made the alterations, and who was 
 ignorant of the conditions of the sale, had a lien on the vessel.^ 
 
 In a case under this statute, the vessel sailed from Newburyport 
 for Boston, but in consequence of head winds and a dense fog, put 
 into Portsmouth in New Hampshire, and it was held that the lien 
 was lost.* This statute only gives a lien upon the vessel to the 
 amount of the materials used in the construction or repair of the 
 particular vessel.^ 
 
 might perhaps, like the freight, be allowed as part of the cost of materials at the 
 place of delivery, unless by the bargain they were to be delivered at the ship-yard 
 of the builders, and then the insurance, as well as freight, would be involved in 
 the price. But the insurance here was procured by a stranger, and if he can 
 claim in this libel, it must be in the character of a material man. But the mere 
 payment of insurance on a cargo of lumber, though actually furnished for the ship 
 and used in the construction, cannot give him the character of a furnisher of 
 materials in the sense of the law." 
 
 1 C. 290. 
 
 ' The Ferax, 1 Sprague, 180. 
 
 ' The Ferax, 1 Sprague, 180. 
 
 * The Sam Slick, 2 Curtis, C. C. 480, reversing the decree of the District 
 Court, 1 Sprague, 289. 
 
 '^ The Antarctic, I Sprague, 206. See The Abby Whitman, Same Court, 17 
 Law Rep. 322. 
 
 VOL. II. 10
 
 146 ON THE LAW OF SHIPPING. [BOOK I. 
 
 In 1855 the act of 1848 was repealed, and one much more com- 
 prehensive in its terms was passed.^ This statute gives a lien to 
 certain persons when money is due to them by reason of any con- 
 tracts, express or implied, with the owners of any ship or vessel, 
 etc. It has been held that the word " owners " means special as 
 well as general owners, so that a person repairing a vessel under 
 a contract made with a special owner, has a lien.^ It has been 
 held, under this statute, that the materials must be specifically 
 furnished, to be used in a particular vessel, in order to give a lien 
 on that vessel, and it is not enough that they were so used, if not 
 furnished for that purpose.^ But if furnished for a particular 
 ship, it is not necessary that they should be attached to her.* 
 
 No lien can be claimed under this statute for timber sold and 
 delivered to the owner in another State, and by him brought into 
 Massachusetts, and there used in building a ship, if there was no 
 express agreement that there should be a lien, or that the timber 
 should be so applied.^ 
 
 A trench excavated in front of the launching ways of a ship for 
 the purpose of deepening the water, does not make part of the 
 launching ways within the statute.^ 
 
 Under the third section of the statute providing for the mode of 
 enforcing the lien in the State court, it has been held that the 
 petition cannot be filed until the sum has remained unpaid sixty 
 
 ^ C. 231. 
 
 ' Hawes v. Bark James Smith, U. S. D. C. Mass., 1858. The owner of the 
 vessel in this case made a contract of sale by which the vendees were to have 
 possession of the vessel, and if not paid for within a certain time, possession was 
 to revert to the owner. While in the possession of the vendees, repairs were put 
 upon the vessel, and it was held that these constituted a lien upon her, which was 
 enforced after the original owner had resumed possession in consequence of a 
 breach of the condition. 
 
 ' Rogers v. Currier, 13 Gray, 129. The lien is given by the statute " for labor 
 performed, materials used, or labor and materials furnished, in the construction,'' 
 &c. The decision was based on the cases under the Maine statute referred to on 
 p. 144, supra. See also Miller v. Robinson, 2 Allen, 610. It is doubtful if this 
 case would have been so decided if the court had been aware of the decision of 
 Judge Sprague in The Antarctic, 1 Sprague, 206, decided under the act of 
 1848. 
 
 • Barstow v. Robinson, 2 Allen, 605. 
 
 • Tyler v. Currier, 13 Gray, 134. 
 
 • Woolly V. Ship Peruvian, U. S. D. C Mass., 21 Law Rep. 153.
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 147 
 
 days after it was payable.^ But in admiralty it has been held that 
 a suit may be brought before the expiration of the sixty days.^ 
 Interest is allowed on the sum due from the time of filing tlie pe- 
 tition.^ A vessel attached under the act of 1855, cannot be ap- 
 praised and sold during the pendency of the proceedings.* 
 
 It seems that actual notice of a claim does not dispense with the 
 recording of the claim required by the act, and certainly no ac- 
 tual notice could have this effect which did not give the creditor 
 all the notice he could obtain by the record.^ The petitioner's 
 statement should give the name of the owner of the vessel if 
 known,^ and all just credits,'^ and the name of the person with 
 whom the contract is made.^ 
 
 * Tyler v. Currier, 10 Gray, 54. See also, as to the proper mode of serving 
 the petition, Patrick v. Tafts, Superior Court, Suffolk Co., Mass., 21 Law Rep. 
 163. 
 
 ' The Richard Busteed, 1 Sprague, 441. 
 ' Barstovv i'. Robinson, 2 Allen, 605. 
 
 * Coburni'. Clark,3 Allen, 207. See abo, generally, Gove i". Prince, 3 Allen, 211. 
 
 * Hawes v. Mitchell, Superior Court, Suffolk Co., Mass., 22 Law Rep. 104. 
 
 ' In Story v. Buffum, 8 Allen, 35, the question was whether the owner's name 
 was known to the petitioner. He testified that he had heard and believed, when 
 the work on the vessel was begun by him, that A and B owned the vessel ; that 
 they both had told him so ; that before he filed his statement he had heard that 
 A had become the sole owner, and believed that it was so when he filed his state- 
 ment ; that he knew that in some way the vessel had been transferred to A, 
 though he had no actual knowledge of the execution of any papers. It was 
 admitted that when the statement was filed A was in fact the sole owner of the 
 vessel. Held, that the statement should have stated the owner's name. Metcalf, 
 J., said : " The statute word ' known,' cannot be held to require further knowl- 
 edge of the owner's name than that which the petitioner had. Absolute knowl- 
 edge can be had of very few things." 
 
 ' Under the Mechanics' Lien Act of 1851, c. 344, it was held that a certificate 
 was defective if it omitted to credit four dollars actually received. Lynch v. Cro- 
 nan, 6 Gray, 531. By c. 431, act of 1855, it was provided that no inaccuracy in the 
 statement should invalidate the proceedings, unless it should appear that the per- 
 son filing the certificate had wilfully and knowingly claimed more than his due. 
 The provision was incorporated in General Stats. Mass., 1860, into the chapter 
 relating to ships and vessels. C. 151, § 14. If a person knows that large credits 
 exist, which exceed a certain sum, and knows very nearly, though not exactly, 
 their amount, but gives no further account of them in his statement than that 
 such credits exist, to an amount which is not known and cannot be computed by 
 him, he cannot enforce his Hen. Story v. Buffum, 8 Allen, 35. 
 
 * The certificate must state the Christian name, as well as the surname. Gove 
 V. Sch. Bold Runner, U. S. D. C Mass., Sprague, J. 1859.
 
 148 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Chapter 251 of the General Statutes of Massachusetts follows 
 the act of 1855 generally. Under section fifteen of this chapter, 
 there would appear to be no necessity of waiting until the sum had 
 remained unpaid sixty days. It is also provided by act of 1862, 
 c. 185, that if a contractor or sub-contractor unreasonably ne- 
 glects or refuses to pay for labor by him procured to be performed, 
 in constructing, repairing, or launching any ship, upon which a 
 lien shall exist therefor, the owner or other person who made the 
 agreement with such contractor or sub-contractor may pay the 
 debt secured by such lien, and have the same claim against such 
 contractor or sub-contractor as if the said lien had been enforced 
 by judgment of court. 
 
 In Pennsylvania the lien continues until the vessel goes to sea, 
 although the owner becomes bankrupt before her departure.^ 
 Among others mentioned in this statute are ship-chandlers, to 
 whom a lien is given for articles used in the fitting, furnishing, 
 and equipping of a vessel ; and it has been held that every debt 
 contracted with a ship-chandler for articles or materials used for 
 any of these purposes is within the law.^ 
 
 If a barge is necessary to a steamboat, its hire to it will be re- 
 garded as a material furnished for its equipment.^ And, in some 
 States money loaned to a person to enable him to build a vessel, 
 gives the lender a lien ; in others it does not.^ 
 
 ' Shoemaker v. Norris, 3 Yeates, 392. 
 
 * Weaver v. The S. G. Owens, 1 Wallace, C. C. 358. The articles, for which 
 the lien was enforced, were " ropes, ship-tools, sea-stores, provisions, glass and 
 Britannia ware, china, crockery, pencils, varieties of hardware including cooking- 
 stoves, cooking utensils, muskets and other firearms," which last were taken for 
 defence upon a California voyage around Cape Horn. 
 
 ' Amis V. Steamboat Louisa, 9 Misso. 621. Gleim v. Steamboat Belmont, 11 
 Misso. 112 ; Steamboat Kentucky v. Brooks, 1 Greene, Iowa, 398. 
 
 * Lawson v. Higgins, 1 Mann. Mich. 225, See also Th^ Kearsarge, Ware, 2d 
 ed. 546, where it was held that if a creditor advances money to the builder on a 
 mortgage of the vessel, he succeeds to the place of the owner, and takes an inter- 
 est in the vessel subject to the liens of the material men. Nor is there any lien 
 if the money is loaned to pay wages, and it is actually applied to that purpose. 
 Steamboat P. H. White v. Levy, 5 Eng. 411 ; or for the use of the boat generally. 
 McGuire v. Canal Boat Kentucky, 20 Ohio, 62 ; Dewitt v. Schooner St. Lawrence, 
 3 Ohio State, 325. If the statute of Illinois does apply to such a case, the party 
 lending the money must show that a necessity existed. Leddo v. Hughes, 15 111. 
 41. And in Pearsons u. Tincker, 36 Maine, 384, it was held that if a person pays
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 14*9 
 
 In Ohio, if a person has engaged to build and deliver a boat at 
 a future day at a specific price, and has delivered it accordingly, 
 he cannot afterwards proceed against it in the hands of a third 
 person, to recover for materials, supplies, and labor, expended in 
 building it.^ 
 
 In Michigan, there is no lien for supplies furnished while a 
 vessel is being built.^ In Missouri, if the supplies are furnished 
 on the order of the steward, engineer, or mate, with the knowl- 
 edge or consent of the master, they are considered as ordered by 
 him.2 
 
 These statute liens take precedence of the claims of all other 
 creditors.^ But a laborer employed in general work by a ship- 
 off the claim of one who has a lien on the vessel, at the request of the debtor, he 
 does not acquire a right to enforce the lien in his own name, or in that of his 
 assignee. And if a person indorse a note given by the master of a vessel for 
 supplies furnished, and pay the same at its maturity, he does not thereby become 
 subrogated to the rights of the person furnishing the supplies, so as to have a lien 
 on the boat. Hays v. Steamboat Columbus, 23 Misso. 232. So goods furnished a 
 master of a vessel to supply the place of goods lost in the course of transportation 
 are not "supplies." Bailey v. Steamboat Concordia, 17 Misso. 357. But in the 
 same State it is held that a note given for money loaned to a person to enable 
 him to purchase a vessel is a lien upon it. Steamboat Lebanon v. Grevison, 10 
 Misso. 536. So if the money is lent with the understanding that it is to be appro- 
 priated to the debts of the vessel, but otherwise not. Bryan v. Steamboat Pride of 
 the West, 12 Misso. 371 ; Phelps i-. Steamboat Eureka, 14 Misso. 532. So if goods 
 are furnished the master of a boat, to enable him therewith to purchase wood and 
 other necessaries, a lien is created. Steamboat General Brady v. Buckley, 6 Misso. 
 558. These cases depend somewhat upon the peculiar provisions of the State 
 statutes under which they were decided. 
 
 1 Canal Boat Etna v. Treat, 15 Ohio, 585, 16 Ohio, 276. 
 
 ' Lawson v. Higglns, 1 Mann. Mich. 225. 
 
 ' Voorhees v. Steamboat Eureka, 14 Misso. 56. See also, generally, George v. 
 Skeates, 19 Ala. 738; Leddo v. Hughes, 15 111. 41; Steamboat P. H. White v. 
 Levy, 5 Eng. 411 ; Flint River Steamboat Co. v. Roberts, 2 Florida, 102. 
 
 * The Hull of a New Ship, Daveis, 199; Sewall v. The Hull of a New Ship, 
 Ware, 2d ed. 565 ; The Kiersage, 2 Curtis, C. C. 421, 423 ; Dudley v. The 
 Steamboat Superior, U. S. D. C Ohio, 3 Am. Law Reg. 622. See The St. 
 Mary, 2 Blatchf C. C. 329. In The Young Mechanic, Ware, 2d ed. 535, 2 
 Curtis, C. C. 404, the lien of the material man was preferred to the claim of one 
 who had lent money to the owner for the purpose of building the vessel, and had 
 taken a mortgage from the owner. And this, though the person who employed 
 the libellant was dead, insolvent, and by the laws of the State such a claim was 
 not a preferred debt. See also The Revenue Cutter No. 1, U. S. D. C. Ohio, 21
 
 150 ON THE LAW OF SHIPPING. [BOOK I 
 
 Wright or mechanic engaged upon the vessel, and who is employed 
 sometimes on the vessel and sometimes elsewhere, has no lien on 
 the vessel for that part of his labor which is performed upon it.^ 
 
 The question has been considerably discussed whether sub-con- 
 tractors and day laborers, not employed by the owner, master, or 
 consignee, have a lien for work done, or materials furnished at the 
 request of a person employed by the owner, master, or consignee. 
 In Maine, it is held that such a lien exists in favor of a person per- 
 forming labor on a vessel.^ But a doubt has been intimated 
 whether a sub-contractor furnishing supplies would have the same 
 right.^ In the State courts it has been held that a sub- contractor 
 cannot sue the owner and attach the vessel, but he should sue the 
 person who employed him, and attach the vessel.* The lien exists 
 
 Law Rep. 281. In Reeder v. Steamship George's Creek, U. S. D. C. Maryland, 
 3 Am. Law Reg. 232, the vessel ran between New York and Baltimore. In the 
 summer of 1854 repairs were put upon her in Baltimore. In December, 1853, 
 she was mortgaged by her owners to parties in New York to secure the payment 
 of $ 30,000. This mortgage was duly recorded in the office of the collector of 
 customs at the port of New York, where the vessel was enrolled, and also in the 
 office of the register of conveyances for the cit}' of New York. On the 1 7th of 
 October, 1854, a decree was passed by the superior court for the city of New 
 York for the sale of the vessel to pay the mortgage debt. This libel was filed on 
 the 18th of the same month. The court held that the lien of the material man 
 might still be enforced. 
 
 1 The Calisto, Daveis, 29, s. c. Read v. The Hull of a New Brig, 1 Story, 244. 
 
 " Purinton r. The Hull of a New Ship, Ware, 2d ed. 556, 2 Curtis, C. C. 416. 
 
 » The Young Sam, 20 Law Rep. 608, 610, per Curtis, J. 
 
 * Ames V. Swett, 33 Maine, 479 ; Atwood v. Williams, 40 Maine, 409. In Doe 
 V. Monson, 33 Maine. 430, an action against the contractor, and the owner as 
 trustee, was sustained. In Smith v. Steamer Eastern Railroad, 1 Curtis, C. C. 
 253, it was held that no lien existed in such a case under the Massachusetts 
 statute of 1848. But in a subsequent case before Judge Sprague, it was held 
 that that decision did not apply to the case of a person furnishing materials 
 to the builder of a ship, he not knowing that the vessel was owned by another 
 party. The Sam Slick, 1 Sprague, 289. 
 
 In Smith v. Steamer Eastern Railroad, the repairs were made on an old vessel 
 known to be owned by parties other than the contractors. The Act of 1855, 
 c. 231, has put the matter at rest by providing that a lien shall exist in all such 
 cases. In the case of The Brig Whitaker, 1 Sprague, 229, which seems to follow 
 Smith V. Steamer Eastern Railroad, the services were rendered before the passing 
 of the statute, and the vessel was proceeded against as a foreign vessel. But 
 there can be no doubt that in a case under the statute of 1855, under similar cir- 
 cumstances, a lien would exist.
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 151 
 
 in Ohio.^ So in Kentucky, unless the owner of the vessel has paid 
 the person who employed the sub-contractors.^ But there is no 
 such lien in New York, Pennsylvania, or Indiana.^ 
 
 The lien given by a State statute cannot be enforced against the 
 vessel if she is owned by government.* That a vessel may be pro- 
 ceeded against, though in the hands of a bond fide purchaser, is 
 well settled.^ But in such a case the person claiming the lien must 
 
 * Webster v. Brig Andes, 18 Ohio, 187. 
 
 * Stephens v. Ward, 11 B. Mon. 337. 
 
 * Hubbell V. Denison, 20 Wend. 181 ; Harper v. The New Brig, Gilpin, 53^ ; 
 South wick V. Packet Boat Clyde, 6 Blackf. 148. And in Childs v. Steamboat 
 Brunette, 19 Misso. 518, it was held that a ship-carpenter who contracts to repair 
 a boat and furnish materials is not an agent within the meaning of the act con- 
 cerning boats and vessels, and cannot create a lien on the boat in favor of a party 
 from whom he purchased materials. 
 
 * Briggs V. Light-Boats, 11 Allen, 157. See, contra, The Revenue Cutter No. 
 1, U. S. D. C. Ohio, 21 Law Rep. 281. 
 
 * The Schooner Marion, 1 Story, 68, 72 ; The Barque Chusan, 2 id. 455 ; Cole 
 V. The Atlantic, Crabbe, 440 ; Reeder v. Steamship George's Creek, U. S. D. C. 
 Maryland, 3 Am. Law Reg. 232. In The Barque Chusan, Mr. Justice Story 
 said : " The lien, however, which is given by the maritime law on the ship, 
 although it is, or may be treated as, a permanent or abiding lien upon the ship, 
 until the debt is paid, as between the original owners, and the material men 
 and their personal representatives, is liable to a very different consideration, 
 when the ship has passed into the hands of a bond fide purchaser, for a val- 
 uable consideration, without notice of the lien. In respect to such a purchaser, 
 the lien must be enforced within a reasonable time after the debt is due, 
 and the credit, if any, has expired ; otherwise a court of admiralty will pro- 
 tect him, as a court of equity would do, against the claim as stale and in- 
 equitable. What will constitute a reasonable time, must depend upon the 
 circumstances of each particular case, and is not a point susceptible of any 
 definite or universal formulary of interpretation." In The Sea Lark, 1 Sprague, 
 571, a chain and anchor were furnished by one vessel to another at the Chincha 
 Islands. Both vessels belonged to Boston. Two years afterwards suit was 
 brought, and as it did not appear that during this time the vessel had been in the 
 United States, It was held that It could be maintained. It was, moreover, said 
 that a mortgagee whose mortgage was made prior to the furnishing of the articles, 
 and who had bought the right of redemption after notice of the furnishing, did 
 not stand in the same situation as a hond fide purchaser. In The Prospect, 3 
 Blatchf. C. C. 526, Nelson, J., said : " In order to make out a case that will have 
 the effect to avoid a Hen from delay in enforcing it against a vessel, there must 
 be something more than mere lapse of time, — unless Indeed the delay be such 
 that the court, in analogy to the statute of limitations would hold the debt to be 
 barred, — there must be unreasonable neglect and delay, operating to the preju- 
 dice of third persons, after opportunities have existed to enforce the lien."
 
 152 ON THE LAW OF SHIPPING. [BOOK I. 
 
 use due diligence to enforce liis lien.^ It has been held that the 
 burden of proof to make out such laches as would in law operate 
 to forfeit the lien, is on the claimant.^ 
 
 It has been said that if a person furnishing a ship, gives credit, 
 the lien is discharged, or does not attach, so that a suit in rem will 
 not lie to enforce it.^ But this is stated too broadly. The lien is 
 not waived unless the contract contains stipulations inconsistent 
 with-it.^ Thus if the duration of the lien is fixed by law, and 
 credit is given which extends beyond that time, the lien is consid- 
 ef-ed as waived.^ But if the credit may expire before the lien, 
 then, whether it is waived or not, is a question of intention.*^ If 
 credit is given for a definite time, the lien is suspended till that 
 time expires, but may be enforced afterwards." So, if it is known 
 to the parties that the time of the credit will expire before the 
 time when the lien must be enforced, the lien is not thereby extin- 
 guished.^ If the material man agrees to take a note on such time 
 that if it were taken it would amount to a waiver of the lien, the 
 agreement does not have this effect if no note is given.^ If a party 
 furnishing materials before the vessel is completed or named, 
 charges them to the owner on his books, this is no waiver of the 
 lien, it appearing that he had no intention of relinquishing it.^*^ 
 
 ' Leland v. The Medora, 2 Woodb. & M. 92, 99 ; The Utility, Blatchf. & H. 
 Adm. 218 ; The Lillie *Mills, 1 Sprague, 307. la The General Jackson, 1 
 Sprague, 554, Sprague, J., said : " Generally a lien of this character should be 
 enforced soon after the expiration of the first voyage, after supplies or materials 
 furnished, and it is only under peculiar circumstances that it will be extended 
 beyond such time. In this case the supplies were furnished in Boston in 1852, 
 and the libel was not filed until May, 1854, during which time the vessel was 
 plying between Boston and ports in Maine as often as once a month. The rights 
 of a bond fide purchaser intervening, the libel was dismissed on account of the 
 delay. 
 
 " The Prospect, 3 Blatchf C. C. 526. 
 
 ^ Zane v. The Brig President, 4 Wash. C. C. 453. 
 
 * Peyroux v. Howard, 7 Pet. 324, 344 ; The Brig Nestor, 1 Sumner, 73, 80 ; 
 Phillips V. Wright, 5 Sandf 342. 
 
 ^ Peyroux. u. Howard, 7 Pet. 324, 344 ; Remnants in Court, Olcott, Adm. 382; 
 Veltman v. Thompson, 3 Comst. 438 ; The Abby Whitman, U. S. D. C. Mass., 
 17 Law Rep. 322. 
 
 • The Kearsarge, Ware, 2d ed. 546. 
 
 ' The Brig Nestor, 1 Sumner, 73, 85; The John Walls, Jr., 1 Sprague, 178. 
 « The Antarctic, 1 Sprague, 206. 
 » The Highlander, 4 Blatchf C. C. 55. 
 '" The Sam Slick, 1 Sprague, 289. ' '
 
 CH. XVIII.] MATERIAL MEN AND THEIR LIENS. 153 
 
 The giving of a note does not, as a general thing, amount to a 
 waiver of the lien, and the claim will be enforced against the ship 
 if the note is surrendered at the trial.^ An assignment of a claim 
 by a material man as collateral security, is not a waiver of the 
 lien.^ And a suit in a State court, with attachment of the vessel 
 on mesne process, does not prevent the plaintiff from afterwards 
 discontinuing the suit, and bringing an action in rem in admi- 
 ralty.^ 
 
 If there are two debts, one secured by a lien, and another not, 
 and a general payment is made by the debtor, without any appro- 
 priation tlicreof at the time it is made, either by the debtor, or by 
 the creditor with the assent of the debtor, the law will appropriate 
 it to the extinguishment of the debt secured by the lien."* If credit 
 is given only to the builder or owner of a vessel, there is no lien 
 on the vessel.^ 
 
 ^ The St. Lawrence, 1 Black, 522 ; Carter v. Sch. Byzantium, 1 ClifFord, C. C. 1 ; 
 The James Guy, 1 Bened. Adm. 117. The Brig Nestor, 1 Sumner, 73, 86; The 
 Chusan, 1 Sprague, 39, 2 Story, 4o5, 467 ; Leland v. The Ship Medora, 2 Woodb. 
 & M. 92, 100; Page v. Hubbard, 1 Sprague, 335; Raymond v. The Schooner 
 Ellen Stewart, 5 McLean, C. C. 269 ; Sutton v. The Albatross, 2 Wallace, C. C. 
 327 ; The Schooner Active, Olcott, Adm. 286 ; The Steamer Fashion, U. S. D. C. 
 Mich., 18 Law Rep. 50; Merrick v. Avery, 14 Arkan. 370; Steamboat 
 Charlotte v. Kingsland, 9 Misso. 66. 
 
 The note must be tendered to be given up or actually sun-endered at the 
 hearing. Ramsay v. Allegre, 12 Wheat. 611. 
 
 In Palmer v. Priest, 1 Sprague, 512, it was held that where a material man, 
 who had trusted two owners of a vessel, afterwards received the negotiable note 
 of one of them, and subscribed at the foot of the account the words " Rec'd pay- 
 ment," this vf as prima facie payment of the account. 
 
 * The General Jackson, 1 Sprague, 554. 
 » The Paul Boggs, 1 Sprague, 369. 
 
 * The Antarctic, 1 Sprague, 206. 
 
 * In The Abby Whitman, U. S. D. C. Mass., 17 Law Rep. 322, which was 
 a suit to enforce a lien, under the Massachusetts act of 1848, for materials 
 furnished in building a vessel. Judge Sprague held that no lien existed, because 
 the evidence and circumstances showed an intention on the part of the libellants 
 to rely upon the personal credit of the builder. The charges in the books of the 
 libellants were made to the builder personally, without any reference to, or 
 mention of, any of the vessels which he was then building. The materials were 
 taken from the libellants' yard by a teamster employed by the builder, and trans- 
 ferred to his ship-yard, and no exertions were made by the libellants to ascertain 
 for what purpose these materials were to be used. When payments were made 
 by the builder from time to time, there was no appropriation by the libellants on
 
 154 ON THE LAW OF SHIPPING. [BOOK I. 
 
 We shall hereafter see that a person seeking to maintain a 
 lien against a foreign vessel, by virtue of the maritime law, 
 must show not only that the supplies were necessary, but that 
 it was also necessary that the master should have a credit to ob- 
 tain them. The liens given by the local law do not depend on the 
 same requirements.^ 
 
 The question has arisen how far the remedy in rem, given by 
 statutes in many States, can be enforced by common-law courts. 
 Under the act of 1789,^ the district courts have " exclusive orig- 
 inal cognizance of all civil causes of admiralty and maritime juris- 
 diction .... saving to suitors, in all cases, the right of a com- 
 mon-law remedy, where the common law is competent to give it." 
 Assuming this act to be constitutional, it seems very clear that a 
 suit in rem is not a common-law remedy, and that a State court 
 has no power to proceed in rem in a case where an admiralty court 
 has jurisdiction. This question has been before the Supreme 
 Court of tlie United States in two recent cases, and it has been 
 held, that the act of 1789 is constitutional, and that a State court 
 has no jurisdiction in rem in a case over which the admiralty has 
 jurisdiction in rem? 
 
 These decisions have given rise to another question of some 
 difficulty. For many years the admiralty courts exercised juris- 
 diction in cases of supplies furnished domestic vessels, where the 
 laws of the States in which the supplies were furnished gave a 
 lien. In 1859 the Supreme Court of the United States passed a 
 rule limiting the remedy in admiralty in such cases to suits in 'per- 
 sonam. If the lien, in the case of a domestic vessel, could be en- 
 
 their books or receipts, to any items to distinguish their claim upon the different 
 vessels. 
 
 ' The Young Sam, U. S. C. C. Maine, Curtis, J., 20 Law Rep. 608, 610. 
 
 « C. 20, § 9, 1 U. S. Stats, at Large, 76. 
 
 ' The Moses Taylor, 4 Wallace, 411 ; The Hine v. Trevor, id. 555. The first 
 of these cases was for a breach of a contract of passenger carriage between New 
 York and San Francisco. Suit in rem was brought in a State court in California, 
 and carried by a writ of error to the Supreme Court of the United States. It was 
 held that the case was within the admiralty jurisdiction, and that the State court 
 had no authority to proceed in rem, the jurisdiction of the admiralty being ex- 
 clusive, and the proceeding in rem not being a common-law remedy. The Hine 
 V. Trevor was a case of collision between two steamboats at or near St. Louis, on 
 the Mississippi River. Suit in rem was brought in a State court, and on a writ of 
 error being brought, it was held that the State court had no jurisdiction.
 
 CH. XVm.] MATERIAL MEN AND THEIR LIENS. 155 
 
 forced by virtue of the act of 1789 alone, it would be clear that 
 the State courts could not proceed in rem, even though the Su- 
 preme Court should decline to enforce such a remedy. The liens 
 given by State laws have, however, been enforced, not as rights 
 which tiie courts were bound to enforce, but as discretionary pow- 
 ers which the courts might lawfully exercise, where it did not 
 involve controversies beyond the limits of admiralty jurisdiction.^ 
 In other words, these liens have been enforced in the same way 
 that liens given by the statutes of other nations have been en- 
 forced. It would seem, therefore, that the State courts might ex- 
 ercise jurisdiction in rem in the case of domestic vessels, where 
 tliis jurisdiction is given by State statutes.^ 
 
 ' See The St. Lawrence, 1 Black, 522, 530. 
 
 ' The power of the State courts to enforce the lien in rem in the case of domes- 
 tic vessels has been maintained in Boylan v. Steamboat Victory, 40 Misso. 244 ; 
 Morrison v. Steamboat Burns, 41 Misso. 491 ; The Steamship Circassian, 50 Barb. 
 490 ; Bird v. Steamboat Josephine, 50 Barb. 501. The decision of the Supreme 
 Court of New York has, however, been reversed by the court of appeals, as we 
 are informed in 1 Bened. Adm. 156, note. The case of Boylan v. Steamboat 
 Victory was carried to the Supreme Court of the United States on writ of error, 
 but as the court held that it did not appear from the record that one of the ques- 
 tions mentioned in the twenty-fifth section of the Judiciary Act was raised in the 
 State court, and actually decided by it, the writ of error was dismissed, and the 
 point here presented was not decided. The Victory, 6 Wallace, 382.
 
 BOOK II. 
 
 ON THE lAW AND JURISDICTION OP ADMIRALTY.
 
 A TREATISE 
 
 LAW OF SHIPPING AND ADMIRALTY. 
 
 CHAPTER I. 
 
 THE EXTENT OF THE JURISDICTION OF ADMIRALTY. 
 
 SECTION I. 
 
 ADMIRALTY JURISDICTION AS DETERMINED BY PLACE. 
 
 The jurisdiction of the court of admiralty in England is, un- 
 doubtedly, aside from the jurisdiction conferred by recent statutes, 
 confined to places outside the body of a county, and within the 
 ebb and flow of the tide ; being permanent where the tide always 
 flows, and existing in any place between high and low water mark 
 when the tide covers that place, and ceasing to exist there when 
 the tide leaves that place. ^ The admiralty powers of the courts of 
 
 1 1 Bl. Com. 110; 4 id. 268; Constable's Case, 5 Coke, 106, 107; Barber v. 
 Wharton, 2 Ld. Raym. 1452 ; 2 East, P. C. 803. See also 1 Kent, Com. 366. 
 But even if the locus be on the water and on a place where the tide never leaves 
 the shore bare, admiralty is excluded of jurisdiction, if it be within the body of 
 any county. This is by virtue of the statutes of 13 Rich. II. c. 5, and 15 Rich. 
 II. c. 3, which were passed with a view of restraining the jurisdiction of the 
 courts of admiraltj'. One of the reasons why these courts were obnoxious was, 
 that they did not have a trial by jury, but followed the forms and were governed 
 by the rules of the civil law, which was dreaded and detested by the English 
 people ; perhaps, because it was introduced by the clergy and used by them for 
 their own aggrandizement. The civil law was especially fitted for the municipal 
 form of government, but was antagonistic to the feudal system. See Pritchard's 
 Digest, Preface ; Wynne's Life of Sir L. Jenkins, p. 78 ; Thierry, Conquete de 
 I'Angleterre, Vol. IV. pp. 334 - 339 ; Browne, Civ. & Adm. Law, Vol. II. p. 91.
 
 160 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 this country are given by statutes in conformity with the Constitu- 
 tion ; and must be defined and measured by those statutes which, 
 
 There has been great contention in regard to the construction of the statutes 
 of Rich. II. Anciently the judges depended upon the fees of their courts for 
 their emoluments, and the common-law courts, having the highest power, put 
 such a construction on the statutes as very much abridged the rightful power of 
 the admiralty ; but the admiralty lawyers never acquiesced in this usurpation, 
 and have recorded their protests against the deprivation of their authority. As 
 the King's Bench have the controlling power, their decisions must be taken as the 
 law of England, and they have held that the " bodies of counties " from which 
 admiralty jurisdiction is excluded, comprehend all " navigable rivers, creeks, ports, 
 harbors, and arms of the sea which are so narrow as to permit a person to discern, 
 and attest upon oath, anything done on the other shore, and so as to enable an 
 inquisition of the facts to be taken." Rex v. Soleguard, Andr. 231 ; 2 Browne, 
 Civ. & Adm. Law, 92 ; Stanton, J., Fitz. Herb. Abr. Corone, 399, 8 Edw. II.; 4 
 Inst. 140; Hawkins, P. C. p. 2, c. 9, § 14 ; 2 East, P. C. 804; United States v. 
 Wiltberger, 5 Wheat. 106, note; Com. Dig. Tit. Adm. E. 7, 14; Bacon, Abr. 
 Tit. Adm. A. See also United States v. Grush, 5 Mason, 290 ; and United 
 States V. Robinson, 4 Mason, 307. Yet admiralty has always claimed jurisdiction 
 on tide waters up to the first bridges, and rightfully too, according to the opinions 
 of ten of the judges in 1713, cited in Andr. 232 ; 1 Kent, 366 ; De Lovio v. Boit, 
 2 Gallis. 398, 420 ; 15 Rich. IL c. 3. But prohibition lies if it be within a port, 
 4 Inst. 188, 141 ; Violet v. Blague, Cro. Jac. 514 ; 1 Com. Dig. 506. For a gen- 
 eral discussion of this question in relation to prize, see Ex parte Lynch, 1 Madd. 
 15; and note to The Amiable Nancy, 3 Wheat. 546, 558. In 1812, all the 
 judges agreed that common law and admiralty had concurrent jurisdiction in 
 bays, havens, creeks, etc. where ships of war floated. 2 Leach's Crown Cases. 
 1093. 
 
 Much of this struggle arose in the time of Lord Coke. The insufficiency of 
 his authorities and the reasons for his prohibitions have been amply shown by 
 Godolphin, Exton, Jenkins, and others, and the whole learning now of any value 
 is collected in the case of De Lovio v. Boit, 2 Gallis. 398. The practical value of 
 this question is destroyed in England, by acts of parliament declaring the juris-, 
 diction of the high courts of admiralty. The following books and cases generally 
 accessible to American students contain elaborate discussions of the subject. 
 De Lovio V. Boit, 2 Gallis. 398 ; 1 Kent Com. Lect. XVII. ; The Schooner Til- 
 ton, 5 Mason, 465; Bains y. Schooner James, Bald. C. C. 544 ; Ramsay u. Allegre, 
 12 Wheat. 611 ; The Huntress, Davies, 93, note. 
 
 In The Eleanor, 6 Rob. Adm. 39, The Public Opinion, 2 Hagg. Adm. 398, 
 and The Eliza Jane, 3 Hagg. Adm. 335, the court of admiralty refused jurisdic- 
 tion, because the cause of action had arisen within the body of a county. But 
 by 3 & 4 Vict. c. 65, § 6, it is enacted that the high court of admiralty shall have 
 jurisdiction to decide all claims of salvage, damage, or towage, relating to any ship 
 or sea-going vessel, and for necessaries supplied, etc., whether such ship was within 
 the body of a county or on the high seas at the time when the cause of action
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 161 
 
 in their turn, are in force if within the requirement and purview 
 of the Constitution, and void if they exceed or violate the Constitu- 
 tion.^ The first question, therefore, is, does the word admiralty 
 mean, or necessarily imply in our constitution or in this country, 
 what it undoubtedly meant in England, and therefore, as it may 
 be fairly argued, in these States when they were colonies of Great 
 Britain ? It seems probable that no question of this kind, in re- 
 gard to the jurisdiction of admiralty as affected by place, suggested 
 itself to the framers of the Constitution ; nor did any case come be- 
 
 accrued. And by 9 & 10 Vict. c. 99, § 40, said court has jurisdiction to decide 
 all claims whatever, in the nature of salvage, to articles found at sea or on shore, 
 and whether the servicies have been performed at sea or within the body of a 
 county. By the 3 & 4 Vict. c. 65, questions of title and of mortgage, claims to 
 proceeds in the registry, may be decided in said court, witnesses may be exam- 
 ined by word of mouth, and their attendance compelled. 
 
 In The Alexander, 1 W. Rob. 288, it is held that it was not necessary that the 
 claim should have arisen since the passage of the statute in order to give the court 
 jurisdiction. 
 
 In The Fortitude, 2 W. Rob. 217, it is held that the enabling power given to 
 the court by the 3 & 4 Vict. c. 65, §§ 3, 4, does not extend to all questions arising 
 out of a mortgage (as mortgagee's right to freight), but is confined to the ship 
 itself being mortgaged. In the case of A Raft of Timber, 2 W. Rob. 251, under 
 the 3 & 4 Vict. c. 65, § 6, the court refused to entertain a suit for salvage of a 
 raft of timber, on the ground that it was neither a ship nor a sea-going vessel. 
 But the 9 & 10 Vict. c. 99, § 40, above quoted, would now give the court jurisdic- 
 tion. In The Flecha, 1 Spinks, Adm. 438, where a steam vessel which plied 
 regularly between Ghent and London, was supplied with a new propeller, it was 
 objected that as the vessel could have made her voyage in safety with her old 
 propeller, the new one was not " a necessary " within the statutes, and conse- 
 quently the court had no jurisdiction. But Dr. Lushinglon said: "I cannot 
 accede to that proposition, for I think there is a necessity to make such vessels 
 perfect and seaworthy in all respects. The opinion of the court will always be 
 that these vessels, to which the lives of passengers are intrusted, should be con- 
 stantly kept in that state of repair which most conduces to their safety." 
 
 ' The Constitution of the United States, art. 3, § 2, provides that the judicial 
 power shall extend "to all cases of admiralty and maritime jurisdiction." And 
 the Judiciary Act of September 24, 1789, c. 20, § 9, provides that the district 
 courts shall have '' exclusive original cognizance of all civil causes of admiralty 
 and maritime jurisdiction, including all seizures under laws of impost, navigation 
 or trade of the United States, where the seizures are made, on waters which are 
 navigable from the sea by vessels of ten or more tons burden, within their 
 respective districts as well as upon the high seas ; saving to suitors, in all cases, the 
 right of a common-law remedy, where the common law is competent to give it," 
 etc. 1 U. S. Stats, at Large, 76. 
 
 VOL. II. 11
 
 162 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 fore the courts for some years ; and when it did come, it appears 
 to have been scarcely considered as an open question. 
 
 In 1825, the Supreme Court of the United States held that the 
 admiralty jurisdiction was strictly confined to the " sea or waters 
 within the ebb and flow of the tide ; " and they consider, only to 
 dismiss, the question whether Congress might not extend this 
 jurisdiction to voyages on our western waters, under the " power 
 to regulate commerce among the States." ^ In 1833, it was de- 
 cided that the court had jurisdiction in a case where repairs were 
 made at the port of New Orleans, the court taking judicial notice 
 of the fact that the tide ebbed and flowed at that place, and con- 
 sidered it to ebb and flow although it was not strong enough to 
 turn the current of the river backward, but merely to occasion a 
 regular rise and fall of the water.^ In 1837, the same court ap- 
 proved the law of the former cases, and it was held that the voy- 
 age must be substantially maritime, and did not come within this 
 jurisdiction, because one terminus was at New Orleans within the 
 
 * The Thomas Jefferson, 10 Wheat. 428. This was a suit for wages earned on 
 a vovai'e from Shippingport in Kentucky, up the river Missouri, and back to the 
 port of departure. Story, J., said : " In the great struggles between the courts of 
 common law and the admiralty, the latter never attempted to assert any jurisdic- 
 tion except over maritime contracts. In respect to contracts for the hire of 
 seamen, the admiralty never pretended to claim, nor could it rightfully exercise 
 any jurisdiction, except in cases where the service was substantially performed, 
 or to be performed, upon the sea, or upon waters within the ebb and flow of the 
 tide. This is the prescribed limit, which it was not at liberty to transcend. We 
 say the service was to be substantially performed on the sea, or on tide water, 
 because there is no doubt that the jurisdiction exists, although the commencement 
 or termination of the voyage may happen to be at some place beyond the reach of 
 the tide. The material consideration is, whether the service is essentially a 
 maritime service. In the present case, the voyage, not only in its commencement 
 and termination, but in all its intermediate progress, was several hundred of 
 miles above the ebb and flow of the tide ; and in no just sense can the wages be 
 considered as earned in a maritime employment. Some reliance has been placed 
 in argument upon that clause of the judiciary act of 1789, c. 20, § 9, which in- 
 cludes all seizures made on waters navigable from the sea by vessels of ten or 
 more tons burden (of which description the waters in this case are), within the 
 admiralty jurisdiction. But this is a statutable provision, and limited to the 
 cases there stated. To make the argument available, it should be shown that 
 some act of Congress had extended the right to sue in courts having admiralty 
 jurisdiction, to cases of voyages of this nature." 
 
 * Peyroux v. Howard, 7 Pet. 324.
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 163 
 
 tide, the voyage being on the river Mississippi, between New Or- 
 leans and other ports hundreds of miles above the rise and fall of 
 the tide.^ In 1847, before the same court, this question was again 
 raised, but not disposed of, because the collision, which was the 
 foundation of the case, occurred on a place in the Mississippi 
 where it was finally decided that the river rose and fell with the 
 tide, and the important point was determined that the court had 
 jurisdiction, although the collision occurred on a river within a 
 county of the State of Louisiana.^ 
 
 In February, 1845, an act of Congress was passed entitled " An 
 act extending the jurisdiction of the district courts to certain 
 cases upon the lakes and navigable waters connecting the same." 
 This act gives the district courts of the United States " the same 
 jurisdiction in matters of contract and tort arising in, upon, or 
 concerning steamboats and other vessels of twenty tons burden 
 and upwards, enrolled and licensed for the coasting trade, and at 
 the time employed in business of commerce and navigation be- 
 tween ports and places in different States and Territories upon the 
 lakes and navigable waters connecting said lakes, as is now pos- 
 sessed and exercised by the said courts in cases of the like steam- 
 
 ' The Steamboat Orleans v. Phoebus, 1 1 Pet. 1 75. 
 
 ' ^Varing v. Clarke, 5 How. 441. Woodbury^ J., Daniel^ J., and Grier, J., 
 dissented. On page 464, Mr. Justice Wayne, in delivering the opinion of 
 the court, said : " Before leaving this point, however, we desire to say that 
 the ninth section of the Judiciary Act countenances all the conclusions which 
 have been announced in this opinion. AVe look upon it as legislative action 
 contemporary with the first-being of the Constitution, expressive of the opinion 
 of some of its framers, that the grant of admiralty jurisdiction was to be in- 
 terpreted by the courts in accordance with the acknowledged principles of 
 general admiralty law. In that section the distinction is made beween high 
 seas and waters which are navigable from the sea by vessels of ten or more 
 tons burden. Admiralty jurisdiction is given upon both, and, though the latter 
 is confined by the language to cases of seizure, it Is so with the understanding 
 that such cases were strictly of themselves within the admiralty jurisdiction." In 
 Jackson v. Steamboat Magnolia, 20 How. 296, in 1857, the decision in Waring v. 
 Clarke was affirmed, Mr. Justice Grier^ delivering the opinion of the court. Cat- 
 ron, J., Daniel, J., and Campbell, J., dissented. On p. 329, Mr. Justice Campbell, 
 after citing the Judiciary Act, said : " It is difficult to comprehend on what prin- 
 ciple the court can construe the grant of jurisdiction in this act over cases of 
 seizure under the law of impost and trade upon navigable waters, to an extension 
 of the civil jurisdiction of the admiralty to the same localities." Waring v. Clarke 
 has also been affirmed in Nelson v. Leland, 22 How. 48 ; Philadelphia R. v. 
 Philadelphia Steam Towboat Co. 23 How. 215; The Commerce, 1 Black, 574.
 
 164 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 boats and other vessels employed in navigation and commerce 
 upon the high seas, or tide waters, within the admiralty and mari- 
 time jurisdiction of the United States." It also provides that " in 
 all suits brought in such courts in all such matters of contract or 
 tort, the remedies, and the forms of process, and the modes of pro- 
 ceeding, shall be the same as are or may be used by sucli courts in 
 cases of admiralty and maritime jurisdiction ; and the maritime 
 law of the United States, so far as the same is or may be appli- 
 cable tliereto, shall constitute the rule of decision in such suits, 
 in the same manner, and to the same extent, and with the same 
 equities, as it now does in cases of admiralty and maritime juris- 
 diction ; saving, however, to the parties the right of trial by jury 
 of all facts put in issue in such suits, where either party shall re- 
 quire it ; and saving also to the parties the right of a concurrent 
 remedy at the common law, where it is competent to give it, and 
 any concurrent remedy which may be given by the State laws, 
 where such steamer or other vessel is employed in such business 
 of commerce and navigation." ^ 
 
 In 1851,2 a (.^ge -y^^s decided by the Supreme Court of the 
 United States, in which the principal question was, whether this 
 statute was constitutional, or unconstitutional and void. And the 
 court decided that it was constitutional, not under the clause per- 
 
 1 Act of 1845, c. 20, 5 U. S. Stats, at Large, 726. 
 
 ^ The Genesee Chief ;;. Fitzhugh, 12 How. 443. The suit was for a collision 
 on Lake Ontario. The objection taken to the jurisdiction was that, under the 
 construction given to the Constitution by the Supreme Court in the oases already- 
 cited, admiralty jurisdiction was confined to tide water. The court, therefore, 
 were under the necessity of passing upon the correctness of their former decisions. 
 Thus on p. 453, Taney, C. J. in delivering the opinion of the court said : " But if 
 the admiralty jurisdiction is confined to tide water, the courts of the United 
 States can exercise over the waters in question nothing more than ordinary juris- 
 diction in cases at common law and equity If this law, therefore, is con- 
 stitutional, it must be supported on the ground that the lakes and navigable 
 ■waters connecting them are within the scope of admiralty and maritime jurisdic- 
 tion as known and understood in the United States when the Constitution was 
 adopted." On p. 457, after citing the 9th section of the Judiciary Act, the same 
 learned Judge said : " The jurisdiction is here made to depend upon the naviga- 
 ble character of the water, and not upon the ebb and flow of the tide. If the 
 water was navigable, it was deemed to be public ; and if public was regarded as 
 within the legitimate scope of the admiralty jurisdiction conferred by the Con- 
 stitution."
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 165 
 
 mitting Congress to regulate commerce among the States, but on 
 far wider grounds. It is indeed maintained by the court, in this 
 case, that the limitation of tide waters has no force or applicability 
 in this country ; that it was reasonable and useful in England, 
 where there is no important navigation above the flow of tide ; but 
 that originally and by its nature the admiralty jurisdiction ex- 
 tended over all public waters, or over all navigable waters which 
 were used for the transport of commerce ; that the English limita- 
 tion answered very well for this country at its beginning, the old 
 thirteen States having little or no navigation above the ebb and 
 flow of tbe tide ; but that circumstances were greatly changed ; 
 that we now border upon inland seas, and our magnificent western 
 rivers are covered with an extensive and valuable commerce, and 
 that the admiralty jurisdiction of this country, by force of the 
 American meaning of the word, or that meaning which the pecu- 
 liar circumstances of this country make necessary, extends over 
 all our navigable waters, whether lake or river, and however far 
 removed from the presence or influence of the tide. This ques- 
 tion was ably and fully argued. The court were nearly unani- 
 mous in tlieir opinion ; and maintained it by a reasoning which is 
 founded upon certain and pertinent facts, and which has in itself a 
 force whicli we deem inevitable. We consider it, therefore, finally 
 settled, both by the weight of the authority, and by the conclusive- 
 ness of the argument, that, by the law of this country, the ad- 
 miralty jurisdiction extends over all navigable waters, without 
 respect to the tide.^ 
 
 ^ In cases of tort, the admiralty jurisdiction always depended, of course, upon 
 locality, for there was nothing else to guide it. But the trials in the admiralty 
 courts being without a jury, the English government, as has been said, were will- 
 ing to prevent any usurpation of authority by the admiralty courts, and therefore 
 the statutes of 13 and 15 Rich. II. were passed. The admiralty always con- 
 tended that these statutes were only intended to prevent their meddling with 
 things relating to tliB land, and were not intended to abridge their real jurisdic- 
 tion, particularly as the 13 Rich. II. refers particularly to their jurisdiction in 
 the time of King Edward III., and confirmed the same. See De Lovio v. Boit, 2 
 Gallis, 398, 420. 
 
 But it was the aim of Lord CoJce, in those efforts of his to which we have already 
 referred, to make locality the boundai-y in cases of contract ; a thing which had 
 not been attempted before his time. The unreasonableness and inconvenience of 
 this rule compelled the common-law courts to relax it in cases of seaman's wages, 
 and then they began to reflect upon what jurisdiction in admiralty rested ; and
 
 166 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 The correctness of this rule has been sustained in subsequent 
 cases, and the rule itself has been applied in cases of a collision 
 on the Mississippi river,i and in one on the Alabama river,^ in all 
 cases the torts being above tide waters. In the last case it was 
 distinctly declared that the admiralty jurisdiction, exercised over 
 the great navigable rivers of the West, was not by virtue of the act 
 of 1845.^ And in a later case, where a collision took place on the 
 Yazoo river, two hundred miles from its mouth, where it falls into 
 the Mississippi, the river being wholly within the State of Missis- 
 sippi, and its waters being fresh, and there being no tides in it, it 
 was held that the court had jurisdiction.'* 
 
 all have since acknowledged that in cases of contract, the suhject-matter, and not 
 the locality, determined the jurisdiction. Menetone v. Gibbons, 3 T. R. 267, is 
 the leading case upon this subject. See also Waring v. Clarke, 5 How, 441, 459 ; 
 The Commerce, 1 Black, 574. 
 
 But the courts of this country have never paid much attention to the English 
 interpretations of admiralty jurisdiction. The Colonies had each an admiralty 
 court with powers equal to the largest claimed by the admiralty, even under 
 Edward III. The States delegated to the federal government their separate 
 " admiralty and maritime jurisdiction," using these words in their largest sense ; 
 which was the sense in which they are understood in every country in Europe, Eng- 
 land excepted, and the sense in which they had been used here for a long time. And, 
 without a word being said as to the very narrow jurisdiction of the English court 
 in any of the debates or treatises contemporary with the formation of the Consti- 
 tution, the decisions of the courts immediately after the formation of our present 
 government, put a construction on the grants incompatible with the English rule. 
 Waring v. Clarke, 5 How. 441 ; New Jersey Steam Nav. Co. v. Merchants' Bank, 
 6 How. 344 ; The Huntress, Daveis, 93, note. And now, by the decision in the 
 case of The Genesee Chief v. Fitzhugh, 12 How. 443, the navigable lakes and 
 rivers of the United States are considered similar in some respects to the sea. 
 The arguments against this jurisdiction of the admiralty courts, have simply as- 
 serted that admiralty meant here just what it did in England at the time of our 
 Revolution, and that the common law is our only guide in interpreting our Con- 
 stitution. Woodbury, J., in his dissenting opinion in Waring v. Clarke, 5 How. 
 441, and Johnson, J., in Ramsay v. AUegre, 12 Wheat. 611, have stated the 
 whole argument, with all the authority, in favor of the limited jurisdiction. 
 
 » Fretz V. Bull, 12 How. 466 ; The Hine v. Trevor, 4 Wallace, 555. 
 
 2 Jackson v. Steamboat Magnolia, 20 How. 296. In Williams v. The Barge 
 Jenny Lind, 1 Newb. Adm. 443, and in the case of Eads v. The Steamboat H. D. 
 Bacon, 1 Newb. Adm. 274, claims for salvage compensation on the Mississippi 
 were enforced; and in McGinnis v. The Pontiac, 1 Newb. Adm. 130, one for 
 salvage on the Ohio was entertained. 
 
 ^ See also The Hine v. Trevor, 4 Wallace, 555. 
 
 * Nelson v. Leland, 22 How. 48.
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 167 
 
 There appears to be some misconception as to the effect of the 
 decision of the Supreme Court upholding the constitutionality of 
 the act of 1845, It is said that if the statute is constitutional on 
 the ground " that the lakes and navigable waters connecting them 
 are within the scope of admiralty and maritime jurisdiction, as 
 known and understood in the United States when the Constitution 
 was adopted, .... it is a serious question whether the act of 
 1845 is not superseded and rendered nugatory by the decision of 
 the Supreme Court." ^ The view is also sustained to some 
 extent by Judge Willson in the United States District Court for 
 the Northern District of Ohio,^ that under the Constitution Con- 
 gress has full power to grant admiralty jurisdiction over the 
 lakes as well as over navigable rivers, and that the question is 
 whether Congress, in framing the ninth section of the Judiciary 
 Act, failed to carry out this great purpose of equality, and restricted 
 the jurisdiction of the district courts to the high seas and to waters 
 navigable from the high seas. He considers the clause granting 
 " exclusive original cognizance of all civil causes of admiralty and 
 maritime jurisdiction " as complete in itself, and that the subse- 
 quent clause, " on waters which are navigable from the sea by ves- 
 sels of ten or more tons burden," relates merely to seizures, and 
 
 * This is the language of Judge Conkling, in his treatise on Admiralty 
 Jurisdiction, Vol. 1, 2d ed. p. 17. And Judge Wilkins, in the district of 
 Michigan, in enforcing a claim for wages on a voyage between Detroit and 
 Buffalo, took occasion to say that "the jurisdiction of this court, in cases of ad- 
 miralty, does not rest upon the statute of 1845, but upon the Constitution of the 
 United States," etc. Franconet v. The Propeller Backus, 1 Newb. Adm. 1: 
 This decision was given in 1852, but in 1856 the same judge stated the law more 
 accurately. He said : " This court derives its jurisdiction from the Constitution of 
 the United States, and the acts of Congress made in pursuance thereof .... 
 The act of 1845 did not enlarge the jurisdiction of the national courts as to 
 questions of admiralty, but merely conferred a new jurisdiction on the district 
 court." Scott V. The Young America, 1 Newb. Adm. 101. In a case decided 
 in the Northern District of Ohio in 1856, Judge Willson ruled that the de- 
 cision in the case of The Propeller Genesee Chief v. Fitzhugh, " placed the 
 admiralty jurisdiction of the lakes upon the same basis as that of the tide and salt 
 waters." And that " independent of the act of 1845, the maritime law has the 
 same application to cases on the lakes as it has to those upon tide water, not only 
 in matters of jurisdiction, but also in forms of procedure and practice." Parmlee 
 V. The Propeller Charles Mears, 1 Newb. Adm. 197. See also Wolverton v. 
 Lacey, in the same court, 18 Law Rep. 6 72. 
 
 * Fox V. Revenue Cutter, No. 1, 8 Am. Law Reg. 459.
 
 168 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 has nothing to do with the admiralty jurisdiction. He is accord- 
 ingly of the opinion that while the courts have jurisdiction, under 
 the act of 1845, in case of vessels exceeding twenty tons burden, 
 enrolled and licensed, and engaged in navigation between different 
 States, they have also jurisdiction under the act of 1789 over ves- 
 sels under twenty tons burden, whether enrolled and licensed or 
 not, and also of vessels employed in the foreign trade, although such 
 vessels are on the lakes or navigable waters connecting the same. 
 
 This presents a question of much interest and importance. If 
 the punctuation of the ninth section of the Judiciary Act, in the 
 Statutes at Large, be correct, it would seem that the clause, " on 
 waters which are navigable from the sea," was intended to apply 
 to the words conferring admiralty jurisdiction as well as to the 
 clause respecting seizures.^ In Story's edition of the United 
 States laws, and in some of the other earlier editions, the sentence 
 reads : " where the seizures are made on waters which are navi- 
 gable from the sea." In the Statutes at Large there is a comma 
 between the words " made " and " on." 
 
 The language of the justices of the Supreme Court of the 
 United States fully justifies the position that the act of 1789 only 
 conferred jurisdiction over the sea and waters navigable from the 
 sea.2 
 
 Under the act of 1845, it has been held that the court has not 
 jurisdiction of a claim for wages for services rendered on a canal 
 boat on the Erie canal, between New York and Buffalo, on the 
 ground that the canal did not connect navigable lakes. ^ But the 
 Welland canal, which connects Lake Erie with Lake Ontario, has 
 been declared to be a navigable water within the meaning of the 
 statute* Under the statute of 1845, the district court has no ju- 
 risdiction over a contract of affreightment for the carriage of goods 
 between two ports of the same State, though in a general ship 
 
 ^ See the act cited ante, p. 161, n. 1. 
 
 " Thus in Jackson v. Steamboat Magnolia, 20 How. 300, Mr. Justice Gi'ier 
 says: "Consequently, as Congress had never before 1845 conferred admiralty 
 jurisdiction over the Northern fresh-water lakes not 'navigable from the sea,' 
 the district courts could not assume it by virtue of this clause in the Constitution. 
 An act of Congress was therefore necessary to confer this jurisdiction on those 
 waters, and was completely within the constitutional powers of Congress." See 
 also The Hine v. Trevor, 4 Wallace, 555. 
 
 ^ McCormick v. Ives, Abbott, Adm. 418. 
 
 * Scott V. The Young America, 1 Newb. Adm. 101.
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 169 
 
 whose principal voyage is between ports of different States.^ 
 Whether the court has jurisdiction, under the act of 1789, over a 
 contract of affreightment between two ports of the same State, is 
 perhaps still an open question.^ It has been held that no suit can 
 be brought for supplies furnished a vessel engaged exclusively in 
 trade between two or more ports of the State where the supplies 
 are furnished.^ But this seems to be merely an affirmance of the 
 doctrine of the Supreme Court, that in case of supplies furnished 
 
 * Allen V. Newberry, 21 How. 244. Nelson, J., said : " She was a general 
 ship, with an assorted cargo, engaged in a general carrying business between 
 ports of different States ; and there is some ground for saying, upon the words of 
 the act of 1845, that the contracts over which the jurisdiction is conferred, are 
 contracts of shipment with a vessel engaged in the business of commerce between 
 the ports of diff'crent States. But the court is of opinion that this is not the true 
 construction and import of the act. On the contrary, that the contracts men- 
 tioned relate to the goods carried as well as to the vessel, and that tlie shipment 
 must be made between ports of different States." It was also suggested, though 
 not decided, that in such a case, where the vessel had cargo on board to be car- 
 ried between ports of the same State, as well as between ports of different States, 
 in cases of sale or bottomry of the cargo for relief of the vessel In distress, of vol- 
 untary stranding of the ship, jettison, and the like, the court would deal inci- 
 dentally with the subject. The precise meaning of the language used by the 
 court is doubtful, and it is not very apparent whether they mean that in the cases 
 mentioned, the court would exercise jurisdiction over the cargo shipped from one 
 port to another in the same State, by itself, or whether they mean that, having 
 jurisdiction over the cargo shipped to a different State, they would, in order to 
 make a proper decree, take jurisdiction also over the other cargo. 
 
 * In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 392, there is the 
 following dictum of Nelson, J. : '' Contracts growing out of the purely internal 
 commerce of the State, as well as commerce beyond tide waters, are generally 
 domestic in their origin and operation, and could scarcely have been intended to 
 be drawn within the cognizance of the federal courts." And in Maguire v. Card, 
 21 How. 250, occurs the following dictum of the same learned judge in relation to 
 the case of Allen v. Newberry: "That case occurred upon Lake Michigan, 
 within waters upon which the jurisdiction of the court was regulated by the act of 
 Congress of the 26th of February, 1845; but the restriction of the jurisdiction by 
 that act was regarded by the court as but declaratory of the law, and that it 
 existed Independently of that statute." See also a dictum of McLean, J., in 
 Nelson v. Leland, 22 How. 48, 56. In the case of The Sch. Emma Johnson, 1 
 Sprague, 527, where the vessel was engaged as a packet between Boston and 
 Chatham in Massachusetts, no question was made as to the jurisdiction. In the 
 Circuit Court, however, the point was raised, and Clifford, J., decided In favor of 
 the jurisdiction. 
 
 3 Miigulre V. Card, 21 How. 248; The Troy, 4 Blatchf. C. C. 355.
 
 170 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 a domestic vessel, there is no lien by the general maritime law. 
 Whether the admiralty has jurisdiction over a case of salvage, 
 where the vessel saved is engaged exclusively in the internal trade 
 of a State, is a question which has been raised, but not decided.^ 
 In a case of tort it makes no difference whether the vessel be en- 
 gaged in internal trade or not, as the jurisdiction in tort depends 
 entirely upon the locality .^ In 1853 the Supreme Court exercised 
 jurisdiction over a passenger contract, the voyage being between 
 Sacramento and San Francisco, both in California ; ^ and in a later 
 case, a District Court has exercised jurisdiction in the case of a 
 libel by mariners for their wages against a vessel plying on navi- 
 gable waters, between Boston and Quincy, both places being in 
 Massachusetts.'* 
 
 While the jurisdiction of the district courts is limited, under 
 the act of 1845, to vessels of twenty tons burden or upwards, the 
 jurisdiction under the act of 1789 is not aifected by the size of 
 the vessel, the limitation being waters which are navigable from 
 the sea by vessels of ten or more tons burden. To give the court 
 jurisdiction, therefore, under the act of 1789, it is not necessary 
 that it should appear that the vessel is of the burden of ten tons.^ 
 
 Mixed cases often come before the admiralty courts, in which 
 the services are rendered, or the claims arise, partly on land and 
 partly at sea.^ As if goods are on shore when embezzled, or sal- 
 
 ' Bondies v. Sherwood, 22 How. 214, 217. 
 
 ^ The Commerce, 1 Black, 574. 
 
 ' Steamboat New World v. King, 16 How. 469. The question of jurisdiction 
 was not raised in this case by counsel, but it must have been considered, as Daniel, 
 J., dissented on the ground that the court had no jurisdiction. 
 
 * The Sarah Jane, U. S. D. C. Mass., Loivell, J., 2 Am. Law Review, 455. 
 ^ The Hine v. Trevor, 4 Wallace, 570, 
 
 • In United States v. Coombs, 12 Pet. 72, 76, the court said, that "Mixed 
 cases may arise, and often do arise, where the acts and services done are of a 
 mixed nature ; as where salvage services are performed partly on tide waters 
 and partly on the shore, for the preservation of the property saved ; in which the 
 admiralty jurisdiction has been constantly exercised to the extent of decreeing 
 salvage. That this is a rightful exercise of jurisdiction by our courts of admiralty, 
 was assumed as the basis of much of the reasoning of this court in American Ins. 
 Co. V. Canter, 1 Pet. 511. It has also been asserted and enforced by Lord 
 Stoivell, on various oocasions ; and especially in The Augusta or Eugenie, 1 Hagg. 
 Adm. 16; The Jonge Nicholaas, 1 Hagg. Adm. 201; The Rainger, 2 Hagg. 
 Adm. 42; The Happy Return, 2 Hagg. Adm. 198. See also The Henry of
 
 CH. I.] JURISDICTION AS DETERMINED BY PLACE. 171 
 
 vage services are continued after the cargo is landed ; and in such 
 cases admiralty takes jurisdiction if the services or claims are 
 principally or substantially maritime ; the word maritime, here, of 
 course, now referring to the lakes and navigable waters connecting 
 the same, as well as to the ocean and tide rivers. These mixed 
 cases, however, are not cases of tort, but of contract.^ 
 
 Liens, similar to those in admiralty, may be given by local law 
 in reference to places or subjects or contracts not properly within 
 admiralty jurisdiction. So far as these appertained to maritime 
 matters, the courts of admiralty at one time enforced them, as in 
 respect to repairing vessels at a home port,^ and also in some cases 
 enforced liens given by a State statute, which were not strictly 
 
 Philadelphia, 1 Hagg. Adm. 2G4 ; The Vesta, 2 Hagg. Adm. 189; The Salacia, 2 
 Hagg. Adm. 262." — We hold this doctrine to be law. But some of the author- 
 ities cited are very far from proving that Lord Stowell asserted and enforced the 
 above doctrine. The Augusta or Eugenie, 1 Hagg. Adm. 16, which is the prin- 
 cipal case relied upon, was entertained principally, if not solely, on the ground 
 that the subject-matter was a perquisite of the crown. The £lOO given to the 
 suer was not salvage. The Jonge Nicholaas, 1 Hagg. Adm. 201, simply decided 
 what expenses of preserving the cargo were chargeable on that part of the cargo 
 which was to be sold duty free, under the statute. The Rainger, 2 Hagg. Adm. 
 42, does not seem to confii'm the doctrine. The others are simply salvage cases. 
 The law as thus stated appears to have been held in courts of common law ; for 
 it has been laid down, that if the libel is founded on one single continual act 
 which was principally upon the sea, though a part was on the land, as if the mast 
 of a ship be taken upon the sea, though it be afterwards brought ashore, no prohi- 
 bition lies. Cora. Dig. Adm. F. 5 ; 1 Rolle, Abr. 533, 1. 13 ; which are but one 
 citation. Mr. Justice Story also cites, in 12 Pet. 77, Com. Dig. Adm. E. 12; but 
 not accurately. Nothing under E. gives any support to this view. The doctrine 
 laid down may be better supported by the following authorities : " The court of 
 admiralty has jurisdiction of a ship taken on the sea, being stranded or damaged 
 in the haven." This evidently means salvage cases. Com. Dig. Adm. F. 6 ; 
 Turner v. Smith, 1 Sid. 367; Turner v. Neele, 1 Lev. 243. And, "when admi- 
 ralty has cognizance of the principal cause, it shall have jurisdiction over the 
 incidents." Radley v. Egglesfield, 2 Saund. 260, 1 Vent. 173, 174, 2 Lev. 25 ; 
 Anonymous, 1 Vent. 308 ; Anonymous, Cro. Eliz. 685 ; Com. Dig. Adm. F. 6 ; 
 Tremoulin v. Sands (9 W. 3), Comb. 462, 463; 6 Viner's Abr. 516. In Plummer 
 V. Webb, 4 Mason, 388, Story, J., said : " In cases of a mixed nature it is not a 
 sufficient foundation for admiralty jurisdiction, that there are involved some ingre- 
 dients of a maritime nature. The substance of the whole contract must be max'i- 
 time." 
 
 » The Plymouth, 3 Wallace, 34. 
 
 ' This question will be considered hereafter.
 
 172 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 maritime in their nature.^ It is now, however, well settled, that 
 inasmuch as the State legislatures cannot confer jurisdiction upon, 
 the United States courts,^ the court has only discretionary power, 
 where the subj-ect-matter of the lien is of a maritime nature ; ^ and 
 410W, by the twelfth admiralty rule, the Supreme Court of the 
 United States has limited the exercise of this power in the case of 
 domestic vessels, to suits in personam.^ 
 
 It has been held, that the admiralty has jurisdiction to enforce 
 a lien given by a State statute for half pilotage fees, where the ser- 
 vices of a pilot have been tendered and refused.^ We cannot 
 doubt that a district court would enforce, by admiralty process, a 
 lien on a ship given by a foreign government or law, when that 
 ship was in a port within the jurisdiction of the court.^ 
 
 1 The Ship Harriet, Olcott, Adm. 229 ; The Ship Harvest, id. 271. In these 
 cases ship-keepers of domestic vessels in port were held entitled to recover in 
 admiralty, because a lien was given by a State statute, although it was admitted 
 that the services were not strictly maritime. 
 
 - In Steamboat Orleans v. Phoebus, 1 1 Pet. 1 75, where the wages of the master 
 on a voyage above tide water were sought to be recovered by a suit in rem, 
 because the State law gave a lien, and the case of Peyroux v. Howard, 7 Pet. 343, 
 was cited, Stori/, J., said : " That decision does not authorize any such conclusion. 
 Iq that case the repairs of the vessel for which the State laws created a lien were 
 made at New Orleans, on tide waters. The contract was treated as a maritime con- 
 tract, and the lien under the State laws was enforced in the admiralty, upon the 
 ground that the court, under such circumstances, had jurisdiction of the contract 
 as maritime ; and then the lien, being attached to it, might be enfoi'ced according 
 to the mode of administering remedies in the admiralty. The local laws can 
 never confer jurisdiction on the courts of the United States. They can only 
 furnish rules to ascertain the rights of parties, and thus assist in the administra- 
 tion of the proper remedies, where the jurisdiction is vested by the laws of the 
 United States." See also Maguire v. Card, 21 How. 248 ; Roach v. Chapman, 22 
 How, 129; The Steamer St. Lawrence, 1 Black, 522. 
 
 ^ The St. Lawrence, 1 Black, 522. A wharfinger's lien given by a State 
 statute cannot be enforced in admiralty. Russel v. The Asa R. Swift, 1 Newb. 
 Adm. 533. 
 
 * 21 How. Iv. 
 
 * The Brig America, U. S. D. C. Mass., 2 Am. Law Reg. 458. 
 
 * See the case of The Barque Havana, 1 Sprague, 402. In this case the court 
 enforced the lien given to a master for his wages by the English statute of 17 & 
 18 Vict. c. 104. The vessel was owned in St. Johns, New Brunswick. The case 
 was decided on the ground that the statute gave not only a remedy, but also a 
 right, and that the lien should be enforced wherever the thing could be found. 
 And in Davis v. Leslie, Abbott, Adm. 123, the provisions of an English statute
 
 CH. 1.] JURISDICTION AS DETERMINED BY PLACE. 173 
 
 « 
 
 In cases of prize, however, the admiralty jurisdiction appears to 
 depend wliolly on the subject-matter, without a controlling refer- 
 ence to place ; and captures by land, if by any co-opei-ation with 
 a naval force, are within the jurisdiction. In our note we shall 
 endeavor to exhibit the present condition of the adjudication on 
 this subject.^ 
 
 In 1861 ^ an act of Congress was passed, entitled "An act to con- 
 fiscate property used for insurrectionary purposes." The first sec- 
 
 were enforced, which gives a lien in cases of shipwreck, provided the seamen use 
 their utmost endeavors to save the vessel. 
 
 * It may now be considered settled law, that the courts of the United States, 
 under the Judiciary Act of 1780, ch. 20, 1 U. S. Stats, at Large, 73, have, by 
 the delegation of all civil causes of admiralty and maritime jurisdiction, at least 
 as full jurisdiction of all causes of prize as the admiralty in England. The Cargo 
 of the Ship P^mulous, 1 Gallis. 563, 573. See also Glass v. The Sloop Betsey, 3 
 Dall. G ; 1 Kent, Com. 355, 356. The case of Lindo v. Rodney, 2 Doug. 613, 
 note, fixed the jurisdiction of the High Court of Admiralty in England in cases 
 of prize. It was there said, that, on the breaking out of a war, a special commis- 
 sion issues to the Lord High Admiral, to require the court of admiralty to take 
 jurisdiction in prize causes. But see Ex parte Lynch, 1 Madd. 15, cited in 3 
 Wheat. 558, note. Questions of prize or no prize, or by whom taken, must be 
 decided by the judge of the high court of admiralty, and cannot be tried at com- 
 mon law. Mitchell v. Rodney (in error), 2 Bro. P. C. 423. See also Faith v. 
 Pearson, 2 Marsh. 133, 6 Taunt. 439, 4 Camp. 357, Holt, 113 ; Pritchard's Dig. 
 Prize, 17 - 35. When a capture is made on land by the assistance of a fleet, all 
 questions concerning the property captured belong exclusively to the jurisdiction 
 of the high court of admiralty. Lindo v. Rodney, 2 Doug. 613, n. 
 
 All title to sea prize must be derived from commissions under the admiralty, 
 which is the great fountain of maritime authority, and a military force on land is 
 not invested with any commission so derived. A capture, therefore, at sea, made 
 by such a force on land, enures to the benefit of the lord high admiral. The 
 Rebeckah, 1 Rob. Adm. 227, 235. 
 
 All questions of prize are to be decided by the court of admiralty, and by no 
 other. Therefore, in Glass v. The Sloop Betsey, 3 Dall. 6, it was held that the 
 district court could take cognizance of a suit brought by the captured ship, against 
 her captors, who were foreigners (French), and had sent their prize into Balti- 
 more, to be adjudicated upon by the French consul. The court also held that 
 the jurisdiction over French prizes heretofore held by French consuls in this 
 country was not of right. 
 
 In Six Hundred and Eighty Pieces Merchandise, 2 Sprague, 233, goods were 
 ferried across a river occupied by naval forces for the purposes of war, and were 
 soon after seized on the wharf by a force sent from one of the vessels. Held, that 
 there was jurisdiction in Admiralty. But see Alexander's Cotton, 2 Wallace, 404. 
 
 " Act of 1861, c. 60, 12 U. S. Stats, at Large, 319.
 
 174 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 tion declared that " all such property is hereby declared to be lawful 
 subject of prize and capture wherever found." The second section 
 provided : " That such prizes and captures shall be condemned in 
 the district or circuit court of the United States having jurisdic- 
 tion of the amount, or in admiralty in any district in which the 
 same may be seized, or into which they may be taken, and pro- 
 ceedings first instituted." 
 
 This act applies to seizures on land as well as on the sea ; and 
 where the seizure is on the land, the proceedings are to be gener- 
 ally in conformity to admiralty proceedings, but issues of fact 
 must, on the demand of either party, be tried by a jury.^ 
 
 SECTION II. 
 
 ADMIRALTY JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER 
 
 OF THE ACTION. 
 
 The history of this question, both in ilngland and in this coun- 
 try, is very interesting. It is not easy to define with much precis- 
 ion the jurisdiction of these courts under the earlier Norman 
 kings ; but there is, perhaps, sufficient authority for saying, that, 
 for some centuries before Richard II., it extended to all maritime 
 contracts, and all offences on the high seas or tide waters.^ But 
 
 ^ Union Ins. Co. v. United States, 6 AVallace, 759. Chase, C. J., in delivering 
 the opinion of the court said : " The difficulty of construction arises from the 
 terms in which jurisdiction is granted " to any district or circuit court having 
 jurisdiction of the amount, or in admiralty in any district where the property is 
 found." It is said that the use of the disjunctive " or " restricts the jurisdiction 
 in admiralty to the District Courts ; and this view is certainly not without war- 
 rant in the phraseology of the act. But when we look beyond the mere words to 
 the obvious intent, we cannot help seeing that the word " or " must be taken con- 
 junctively, and that the sense of the law is that both the circuit and the District 
 Courts shall have jurisdiction " according to the amount " and " in admiralty. 
 This construction impairs no rights of parties. In cases of seizures on land the 
 rio-ht of trial by jury is not infringed. In such cases the proceeding must be in 
 general conformity to the course in admiralty, but issues of fact, on the demand 
 of either party, must be tried by jury. Where the seizure is made on navigable 
 waters, the course of admiralty may be strictly observed." 
 
 ^ In De Lovio v. Boit, 2 Gallis. 398, 406, Mr. Justice Story, after a comprehen- 
 sive review of all the authorities, states the following to be his conclusions : " At 
 all events, it cannot be denied on these authorities, that before and in the reign
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 175 
 
 these courts had no juries ; and were in this respect strongly op- 
 posed both to the popular will and the principles of English juris- 
 prudence. The judges and officers of all the courts of England 
 then depended for their support and emolument mainly on their 
 fees and perquisites ; and these again upon the extent of their 
 business. They were, therefore, in some measure, rivals of each 
 other. We have already considered this subject somewhat, in 
 treating of admiralty jurisdiction, as determined by place. The 
 conflict in relation to the questions of jurisdiction, as affected by 
 the subject-matter in controversy, was still more urgent. And the 
 endeavors of the common-law and equity courts to restrict the 
 court of admiralty, or in other words, to exclude from that court 
 and draw to themselves a portion of its business, were eminently 
 successful. In its administration of justice, the admiralty court 
 conformed in no respect to the common law, and did not acknowl- 
 edge the authority of any of its rules. It governed itself wholly 
 by maritime usages and customs, and by the ancient laws of the 
 seas, and the forms and procedures of other maritime courts of 
 Europe. All this opened it to attack, and after a considerable 
 struggle, certain statutes were passed in the reign of Richard II., 
 which were certainly intended to lessen the jurisdiction of admi- 
 ralty very much, and which did lessen it, in fact, and by the con- 
 struction of the common-law courts, far more, perhaps, than was 
 intended. The admiralty courts did not consent to this construc- 
 tion : but, nevertheless, their jurisdiction was gradually abridged, 
 until, at the adoption of our Constitution, it embraced, in fact, very 
 much less than its original or early extent. The question then 
 
 of Edward III., the admiralty exercised jurisdiction, 1st, over matters of prize and 
 its incidents ; 2d, over torts, injuries, and offences, in ports Tvithin the ebb and 
 flow of'the tide, on the British seas and on the high seas ; 3d, over contracts and other 
 matters regulated and provided for by the laws of Oleron and other special ordinan- 
 ces, and 4th (as the commission of Robert de Herle shows), over maritime causes in 
 general." This view of the admiralty jurisdiction in the reign of Edward III. is ad- 
 mitted to be correct. See 1 Kent, Com. 368. See also the opinion of Johnson, J., 
 dissenting, in Ramsay v. Allegre, 12 AVheat. 611. In fact, all the ancient learning 
 is, as we have intimated, collected in De Lovio r. Boit, and, whatever may be the 
 difference of opinion as to the general doctrine of this case, or as to the particular 
 point which it decides, there is no dispute as to its general accuracy. The cases 
 cited by Lord Coke to disprove this jurisdiction, are shown to " fail of their in- 
 tended purpose, and leave the current of authority flowing with an uniform and 
 irresistible force in its favor."
 
 176 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 arose in this country what was meant by the words " admiralty " 
 and " maritime jurisdiction ? " Did they mean that jurisdiction 
 as it originally existed in England ; or as it existed when our Con- 
 stitution was formed ; or as it stood at any intermediate period ? 
 We are indebted for the true answer to the firmness and intelli- 
 gence of the judges who administered the law of admiralty at the 
 time these questions came up for adjudication, and we may be per- 
 mitted to refer more specifically to Chief Justice Marshall and his 
 associates, Mr. Justice Story and Mr. Justice Washington. After 
 a conflict of some duration, we may consider it as settled, not, per- 
 haps, that our admiralty jurisdiction is coequal with that of the 
 original English, or that of the continental European admiralty, 
 but is rather that defined by the statutes of Richard II. under the 
 construction given to them by the contemporary, or immediately 
 subsequent courts of admiralty. In general, and as a definition, 
 there seems to be no other rule than that our admiralty jurisdic- 
 tion embraces all maritime contracts, torts, injuries or offences. ^ 
 
 ' The admiralty jurisdiction in this country, as to the subjects to which it at- 
 taches may. fairly be said to have for its basis the jurisdiction of such courts in 
 the time of Edward III. ; and the decisions of our own courts on the subject 
 Lave so fully expounded and discussed the maritime law, that we need not go 
 beyond our own reports to find most of the law. Little attention has been paid 
 to those decisions of the English common-law courts, which confined within limits 
 unreasonably narrow the jurisdiction of the high court of admiralty. Not bound 
 by precedents, except so far as they were consistent with reason, our courts took 
 their powers from the Constitution and Congress, and the admiralty jurisdiction 
 was restored to its original rightful and convenient limits, from which it had 
 never been driven, except by the jealousy of the common-law lawyers, and which 
 it has always kept in all other countries. The attempts of Lord Coke to apply 
 the statutes of Rich. II. to contracts, and which, if successful and consistent in 
 themselves, would have deprived the admiralty of cognizance even of seamen's 
 wages, and bottomry bonds, were successful but a short time, and now, by acts of 
 Parliament, much of the original jurisdiction has been restored. Of the many 
 cases which might be cited on this point, perhaps De Lovio v. Boit, 2 Gallis. 398, 
 and Waring v. Clarke, 5 How. 441, may be considered as the most instructive. 
 
 As to the restrictive statutes of Rich. II., we quote the following remarks from 
 De Lovio v. Boit, 2 Gallis. 398, 420 : "In the construction of these statutes, the 
 admiralty has uniformly and without hesitation maintained, that they were never 
 intended to abridge or restrain the rightful jurisdiction of that court; that they 
 were meant to take away any pretence of entertaining suits upon contracts aris- 
 ing wholly upon land, and referring solely to terrene affairs, and upon torts or 
 injuries which, though arising in ports, were not done within the ebb and flow of
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 177 
 
 But the question still remains, what contracts or what torts are 
 maritime ? We may say that within this term are certainly in- 
 cluded salvage ; ^ bonds of bottomry, respondentia or hypotheca- 
 tion of ship and cargo ; ^ seizures under the laws of impost, navi- 
 
 the tide ; and that the language of those statutes, as well as the manifest object 
 thereof, as stated in the preambles and in the petitions on which they were 
 founded, is fully satisfied by this exposition. So that, consistently with these 
 statutes, the admiralty may still exercise jurisdiction, 1, over torts and injuries 
 upon the high seas, and In ports within the ebb and flow of the tide, and in great 
 streams below the first bridges ; 2, over all maritime contracts, arising at home 
 or abroad ; 3, over matters of prize and its incidents. On the other hand, the 
 courts of common law have held that the jurisdiction of the admiralty is confined 
 to contracts and things exclusively made and done upon the high seas, and to be 
 executed upon the high seas ; that it has no jurisdiction over torts, offences, or 
 injuries done in port, within the bodies of counties, notwithstanding the places 
 be within the ebb and flow of the tide ; nor over maritime contracts made within 
 the bodies of counties or beyond sea, although they are in some measure to be 
 executed upon the high seas ; nor of contracts made upon the high seas to be 
 executed upon land, or touching things not in their own nature maritime, such as 
 a contract for payment of money ; nor of any contracts, which, though maritime 
 and made at sea, are under seal and contain unusual stipulations." It is plain 
 that all the above interpretation is not now, nor has for a long time, been ac- 
 cepted. The attempt to transfer the test of locality to contracts was met in 
 Menetone v. Gibbons, 3 T. R. 267, 269, where it is expressly laid down that. In 
 cases of contracts, the subject-matter governs the admiralty jurisdiction. See 
 AVaring v. Clarke, 5 How. 441, 459; and ante, p. 165, n. 1. Among the most 
 important cases in which the admiralty jurisdiction of this country has been con- 
 sidered, besides those already cited in this note, are The Huntress, Davels, 93 ; 
 Peele v. Merchants' Ins. Co. 3 Mason, 28 ; Read v. The Hull of a New Brig, 1 
 Story, 244; Hale v. AVashington Ins. Co. 2 Story, 176; Ramsay v. Allegi-e, 12 
 Wheat. 611 ; United States, v. Sch. Sally, 2 Cranch, 406 ; United States v. Sch. 
 Betsey & Charlotte, 4 Cranch, 443 ; New Jersey Steam Navigation Co. v. Mer- 
 chants' Bank, 6 How. 344; United States v. La Vengeance, 3 Dall. 297 ; Min- 
 turn V. Maynard, 17 How, 477 ; Bogart v. Steamboat John Jay, 17 Plow. 399 ; 
 Ward V. Peck, 18 How. 267; Schuchardt v. Ship Angelique, 19 How. 239 ; Van- 
 dewater v. Mills, 19 How. 82 ; Taylor v. Carryl, 20 How. 583 ; Jackson v. Steam- 
 boat Magnolia, 20 How. 296. 
 
 * United States v. Coombs, 12 Pet. 72 ; American Ins. Co. v. 356 Bales of Cot- 
 ton, 1 Pet. 511. The admiralty jurisdiction is asserted in salvage questions 
 between foreigners, in Mason v. The Blaireau, 2 Cranch, 240. See ante, p. 166, 
 note 2. 
 
 * The Aurora, 1 Wheat. 96 ; Blaine v. Ship Charles Carter, 4 Cranch, 328 ; 
 The Virgin, 8 Pet. 538 ; The Fortitude, 3 Sumner, 228 ; The Brig Ann C. Pratt, 
 1 Curtis, C. C. 340, affirmed, Carrington v. Pratt, 18 How. 63. See also Mene- 
 tone V. Gibbons, 3 T. R. 257 ; and ante, Vol. I., p. 133, n. 4. 
 
 VOL. II. 12
 
 178 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 gation, or trade ; ^ and cases or questions of prize or ransom .^ 
 Nor should we hesitate to place, with almost equal certainty, with 
 these, demurrage,^ all charter-parties* and contracts of affreight- 
 ments,^ on voyages made between different States. How far there 
 
 ' Act of 1789, c. 20, § 9, 1 U. S. Stats, at Large, 76. See post, c. 4. 
 
 ' Glass V. Sloop Betsey, 3 Dall. 6. In this case the commander of a French 
 privateer captured a vessel on the high seas and sent her into Baltimore to be 
 adjudicated upon by the French consul, as was to some extent the practice. 
 The owners of the vessel and cargo filed a libel in the District Court of the 
 United States, claiming restitution on the ground that the vessel belonged to sub- 
 jects of the king of Sweden, and that the cargo was owned jointly by Americans 
 and Swedes. A plea to the jurisdiction was filed, but it was overruled, and the 
 court was also of the opinion that no foreign power could of right " institute or 
 erect any court of judicature of any kind, within the jurisdiction of the United 
 States, but such only as may be warranted by and be in pursuance of treaties." 
 
 ^ Higgins V. United States Steamship Co. 3 Blatchf. C. C. 282. This was a 
 suit in personam. 
 
 * The Sch. Volunteer, 1 Sumner, 551 ; Certain Logs of Mahogany, 2 id. 589 ; 
 Arthur v. Sch. Cassius, 2 Story, 81 ; Drinkwater v. Brig Spartan, Ware, 149 ; 
 Morewood v. Enequist, 23 How. 491, where the question was fully discussed by 
 counsel. It has been held, however, that an action in re7n will not lie for the mis- 
 representation or concealment of facts by her master or owner in respect to the 
 tonnage or capacity of a vessel. The Eli Whitney, 1 Blatchf. C. C. 360. 
 
 * New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Rich v. Lam- 
 bert, 12 id. 347 ; The Sch. Reeside, 2 Sumner, 567 ; The Rebecca, Ware, 188 ; 
 The Phebe, id. 263 ; The Paragon, id. 322. In New Jersey Steam Nav. Co. v. 
 Merchants' Bank, supra, a libel in personam for breach of a contract of affreight- 
 ment between the cities of Providence and New York, was maintained. On 
 page 392, the court disposed of the objection that the suit was in personam, as 
 follows : " If the cause is a maritime cause, subject to admiralty cognizance, juris- 
 diction is complete over the person as well as over the ship ; it must in its nature, 
 be complete, for it cannot be confined to one of the remedies on the contract, 
 when the contract itself is within its cognizance." See Swaim v. The Franklin, 
 Crabbe, 210. 
 
 In Church v. Shelton, 2 Curtis, C. C. 271, the libel alleged that certain boxes 
 of sugar were shipped by the libellant at Havana, to be carried to Boston and 
 delivered to the libellant for an agreed freight ; that bills of lading were signed, 
 etc. ; that the vessel got ashore near Key West and was relieved by wreckers and 
 went into that port in distress ; that the amount of salvage was referred by the 
 inaster to arbitrators, and the libellant upon information of what was thus due 
 paid the sum of six thousand two hundred dollars as his proportion of the salvage 
 compensation ; that he afterwards discovered that the vessel was fraudulently 
 wrecked by the master in concert with the wreckers, and that the respondents 
 were also ignorant of the fact until after the money was paid ; and that they 
 afterwards recovered the money by a suit in the admiralty court at Key West.
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 179 
 
 is jurisdiction over the domestic commerce of a State, that is, over 
 contracts for carrying goods between ports and places in the same 
 State, is, perhaps, still an open question.^ There is a general 
 admiralty jurisdiction over a contract for the conveyance of a pas- 
 senger in a vessel.^ There is also jurisdiction over contracts with 
 material men ; ^ jettisons and maritime contributions and aver- 
 
 It was contended by the respondents that the suit was merely to recover back 
 money which they had received at Key West by reason of the suit there, and was 
 but another form of an action for money had and received, over which the admi- 
 ralty had no jurisdiction. But the court held that the action was brought for the 
 breach of a contract of affreightment, and that as the court had jurisdiction over 
 the entire contract, it could proceed to inquire into all its breaches, and all the 
 damages suifered thereby, however peculiar they might be, and whatever issues 
 they might involve. 
 ' See ante, p. 169. 
 
 * Steamboat New World v. King, 16 How. 469. The appellee in this case was 
 a passenger on a voyage from Sacramento to San Francisco, and this suit was 
 brought for injuries sustained by the negligence of those in charge of the vessel. 
 The question of jurisdiction was argued, but it appears to have been assumed to 
 exist by the majority of the court, as nothing is said in regard to it. Mr. Justice 
 Daniel dissented, however, on the express ground that the court had no jurisdic- 
 tion. In New York, the general doctrine has been laid down in several cases that 
 " ships engaged in carrying passengers on the high seas for hire, stand on the same 
 footing of responsibility, according to the maritime law, as those engaged in carry- 
 ing merchandise, the passage-money being equivalent to the freight ; that, therefore, 
 on a breach of a passenger contract and damage resulting, the ship as well as the 
 owner is bound to respond." The Pacific, 1 Blatchf C. C. 569 ; The Aberfoyle, 
 id. 360 ; The Zenobia, Abbott, Adm. 48. See also Walsh v. The Steamboat M. 
 H. Wright, 1 Newb. Adm. 494 ; Pearson v. Duane, 4 Wallace, 605. 
 
 • The General Smith, 4 Wheat. 438. This is now limited by the twelfth ad- 
 miralty rule. See post, c. 9. In Ransom v. Mayo, 3 Blatchf C. C. 70, the 
 court decided that an action would not lie against the owner of a ship-yard 
 for damages occasioned by the vessel being injured while being hauled up on the 
 ways for repairs. The libel was founded on the implied duty on the part of the 
 ship-builder to perform the service with skill and care, and alleged that the dam- 
 age resulted from negligence and want of proper skill in conducting the business. 
 The suit was dismissed for want of jurisdiction, on the ground that the duty did 
 not arise out of a maritime contract, it being made on land and relating to service 
 to be performed on land. But in the case of Wortman v. Griffith, 3 Blatchf. 
 C. C. 528, where the owner of a ship-yard was allowed to recover for the service 
 of hauling a vessel on the ways, and for the use of the ways while another person 
 was repairing the vessel, the same judge said : " I do not go into the question 
 whether this is a contract made, or service rendered, on the land or on the water ; 
 it undoubtedly partakes of both ; for I am free to confess, I have not much respect 
 for this and other like distinctions that have sometimes been resorted to for the
 
 180 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 ages ; ^ pilotage ; ^ surveys of ship and cargo ; ^ and generally all 
 assaults and batteries, damages and trespasses ^ occurring on the 
 high seas and navigable waters. Whether in relation to this last 
 subject, the decision in The Genesee Chief v. Fitzhugh,^ will apply 
 in its full extent, so as to include, for instance, any injuries from 
 a quarrel between two persons accidentally on board a boat on any 
 of our navigable streams may certainly be doubted. It is said that 
 torts committed on tide waters within foreign ports are perhaps 
 
 purpose of ascertaining when the admiralty has and has not jurisdiction. The 
 nature and character of the contract, and of the service, have always appeared 
 to me to be sounder guides for determining the question." An action in rein will 
 not lie against a vessel to recover damages for the refusal of the master to accept 
 supplies which he had agreed to take. The Cabarga, 3 Blatchf. C. C. 751. 
 
 '■ General average seems clearly to be a subject of admiralty jurisdiction, but 
 some doubt has been thrown upon the question by the decision of the supreme 
 court in Cutler v. Rae, 7 How. 729. It was here held that an action in personam 
 by the owner of the vessel against the owner of the cargo would not lie after the 
 cargo had been delivered up. It has however been held that a libel in rem is 
 maintainable against the vessel, by a shipper entitled to contribution from the 
 ship. Dupont de Nemours v. Vance, 19 How. 162 ; Dike v. Propeller St. Joseph, 
 6 McLean, C. C. 573; The John Perkins, U. S. C. C, Mass. 1857, 21 Law Rep. 
 87, 96. See these cases commented on ante, Vol. I. p. 477, 478. 
 
 ' Hobart v. Drogan, 10 Pet. 108 : The Anne, 1 Mason, 408; and cases ante, 
 p. 106, note 4. In The Brig America, U. S. D. C. Mass., 2 Am. Law Review, 
 458, a lien given by a State statute for half pilotage fees was enforced in ad- 
 miralty. But see Leitch v. Steamer George Law, U. S. D. C. New York, 6 Am. 
 Law Reg. 368. 
 
 ^ This was the opinion of Mr. Justice Story, in his Commentaries on the Con- 
 stitution, Vol. III. p. 532, § 1665, citing Janney v. Columbian Ins. Co. 10 Wheat. 
 411. The only authority for this position in the case cited, is the dictum of Mr. 
 Justice Johnson, which is as follows : " In other parts of the world, it is very gen- 
 erally exercised as an incident to the admiralty power; and the admiralty juris- 
 diction under our system, can only be exercised under the laws of the United 
 States." See also the language of Mi*. Justice Story, in the case of The Sch. 
 Tilton, 5 Mason, 465, 474. We have no doubt that on principle our admi- 
 ralty courts should have jurisdiction to order a survey, and decree a sale of a 
 damaged ship on a petition by the master, but we are not awai'e of any decision 
 where it is so held, and such a procedure is not usual in practice. 
 
 * As collision. The Propeller Commerce, 1 Black, 574. In the Steamer New 
 Philadelphia, 1 Black, 62, a suit in rem was brought by the owners of a barge 
 against a steamer, which had the barge in tow, for damages caused by a collision 
 between the barge and another vessel, which was owing to the unskilful man- 
 agement of the steamer. No objection was made to the jurisdiction. 
 
 ^ The Genesee Chief y. Fitzhugh, 12 How. 443.
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 181 
 
 under admiralty jurisdiction.^ But would it now be said that this 
 artificial boundary of tide waters is to be overleaped for this pur- 
 pose also ; and that torts in a navigable stream in Asia or Africa, 
 for instance, far above tide waters, are now within admiralty juris- 
 diction ? An examination of the case of The Genesee Chief leads 
 irresistibly to the conclusion that the decision was grounded upon 
 what seemed to be a necessity. Our lakes and rivers carried our 
 ships between our own States, and in some instances between 
 them and foreign countries, and the remedies and resources of 
 admiralty were as much demanded by that inland commerce as by 
 our foreign commerce. If any such necessity or reason exists, as 
 to the punishment of crime committed in a river of Cliina or 
 Africa, it must be because no other tribunal to which our country 
 would be willing to confide the case would be likely to take cog- 
 nizance of it.'-^ 
 
 Policies of insurance have been asserted and reasserted to be 
 " maritime contracts " within the admiralty meaning of the word, 
 and therefore within the admiralty jurisdiction. We cannot, how- 
 ever, but regard this matter as still open to much question ; and 
 should expect that many of our courts of admiralty would refuse 
 to receive a libel upon a common policy of insurance and try the 
 case in admiralty. Our reason is simply this : the contract of in- 
 surance is made between parties one of whom certainly is in no 
 other sense a " maritime " person than all must be who have any 
 connection, direct or remote, close or slight, with the sea. And 
 the contract itself, although it relates to a ship, or a cargo and a 
 voyage, is a land contract, and not a sea contract, unless every 
 contract is necessarily maritime which relates to property that is 
 water-borne, and we do not believe that the word has, in law, a 
 meaning so extensive.^ 
 
 ' Thomas v. Lane, 2 Sumner, 1. 
 
 ^ In The Ida, Lush. Adm. 6, the master of a Danish schooner which lay between 
 an English bark and the wharf, at the port of Ibraila in the Danube, in order to 
 get his schooner out went on board the bark and wilfully cut her adrift, and 
 caused her thereby to swing into the stream and strike and capsize a lighter on 
 which was part of the bark's cargo belonging to Turkish owners. The Turkish 
 owners brought a suit in rem in the English admiralty court against the Danish 
 schooner, but Dr. Lushington refused to take jurisdiction. 
 
 ' In the leading case of De Lovio v. Beit, 2 Gallis. 398, Mr. Justice Story, in a most 
 elaborate and exhaustive decision, held that a policy of insurance is a maritime con-
 
 182 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 Seamen may sue in admiralty, and so may the pilot, engineers, 
 firemen, and deck-hands on board a steamboat,^ and so may all 
 persons serving in a way, either essentially or materially, and 
 directly useful to the navigation of any vessel ; as the mate and 
 engineer of an enrolled steamer, employed in towing vessels in 
 and about the harbor of Boston,'"^ pursers, ^ stewards,* cooks,^ ship- 
 carpenters,^ coopers on whaling voyages,^ and indeed, all officers 
 of a vessel, except the master.^ Whether a surgeon or physician 
 
 tract, and within the admiralty jurisdiction of the United States courts. This case 
 •was decided in 1815, and in 1822 the jurisdiction was affirmed in Peele v. Merchants' 
 Ins. Co. 3 Mason, 27, and again in 1842, in the case of Hale v. Washington Ins. 
 Co. 2 Story, 176. In 1855, the same question came before Mr. Justice Curtis, 
 in the case of Gloucester Ins. Co. v. Younger, 2 Curtis, C. C. 322, and the juris- 
 diction was again affirmed, but solely on the ground that it was not an open 
 question in the first circuit, the learned judge expressly declining to express his 
 own opinion upon the question. After speaking of the case of Cutler v. Rae, 7 
 How. 729, he said : " Still, an inquiry into the extent of the admiralty jurisdic- 
 tion, under the Constitution of the United States, is, to some extent, at least, an 
 historical question ; and whether a particular class of contracts is within that 
 jurisdiction, is to be determined, not by reasoning a priori, but by examining 
 into the actual extent of that jurisdiction, as exercised in this country prior to 
 the formation of the Constitution. This may lead, as comparing the cases of New 
 Jersey S. N. Co. v. Merchants' Bank, and Cutler v. Rae, and The Genesee Chief, 
 it may, perhaps, be said, it has led, to theoretical anomalies, which can scarcely be 
 reconciled, but which may, nevertheless, be sound deductions from correct prem- 
 ises." See s. c. noni. Younger v. Gloucester Ins. Co. 1 Sprague, 236. Pattison 
 V. Mills, 1 Dow & CI. 342, s. c. nom. Albion Ins. Co. v. Mills, 3 Wilson & S. 218, 
 is an action in a Scotch admiralty court on a contract for insui*ance. 
 1 Wilson V. The Ohio, Gilpin, 505. 
 
 * The Steamer May Queen, 1 Sprague, 588. 
 
 ' AUeson v. Marsh, 2 Vent. 181 ; The Prince George, 3 Hagg. Adm. 376. 
 
 * Black V. Ship Louisiana, 2 Pet. Adm. 268; Smith v. Sloop Pekin, Gilpin, 
 203. 
 
 ' Turner's Case, Ware, 83. See Allen v. Hallet, Abbott, Adm. 573. 
 
 * Wheeler v. Thompson, 2 Stra. 707 ; Creed v. Mallet, Fortes. 231. In Sher- 
 idan V. Furbur, Blatchf. & H. Adm. 423, Judge Belts held that a ship carpenter 
 ranked as an ordinary seaman, and was bound to perform the duties of one, when 
 so commanded by an officer. See also Dana's Seaman's Friend, 154. 
 
 ' Macomber v. Thompson, 1 Sumner, 384. No question as to the jurisdiction 
 was made. 
 
 * As the mate. Bayley v. Grant, 1 Salk. 33, Holt, 48, nom. Baily v. Grant, 1 
 Ld. Raym. 632; Hook v. Moreton, 1 Ld. Raym. 397. See also ante, p. 44, 
 n. 3. And the boatswain. Alleson v. Marsh, 2 Vent. 181 ; Ragg v. King, 2 
 Stra. 858.
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 183 
 
 may sue in admiralty for his wages, is not, perhaps, entirely settled 
 by authority. On principle, we should say he had this right. ^ So 
 a woman, if she performs a seaman's work, may sue as seaman. ^ 
 So may persons hired principally for their skill as wreckers, who are 
 also required to aid in the management of the vessel.^ Mere lands- 
 
 •* The question was raised but not decided in Maddox v. , 12 Mod. 526, 
 
 decided in 1 700. In 1 754, the question came again before the King's Bench, on a 
 motion for a prohibition, and the court were of the opinion that a surgeon was a 
 mariner, and might sue in the admiralty. Mills v. Long, Sayer, 136. See also 
 The Wharton, 3 Hagg. Adm. 148, note, decided in 1761, where it incidentally 
 appears that the vessel was arrested and sold for wages due to the surgeon. In 
 The Lord Hobart, 2 Dods. 100, 104, decided in 1815, Sir William Scott expressed 
 a very strong doubt whether an action would lie in such a case, though the point 
 was not decided. He also said it was certain that he could not sue in the admi- 
 ralty for medicines furnished to the crew. The case of Mills v. Long was evi- 
 dently not brought to the notice of the court. In Gardner v. The New Jersey, 1 
 Pet. Adm. 223, 232, the claim of a physician was refused, even out of the rem- 
 nants and surplus in the hands of the court. But there are dicta in favor of 
 the right, by Judge Hopkinson, in Trainer v. The Superior, Gilpin, 514, 516; 
 Thackarey v. The Farmer, Gilpin, 524, 531, 534, and no objection was taken to 
 the jurisdiction In Shaw v. The Lethe, Bee, 424. In this conflict of opinion, it 
 may be well to examine the reasons upon which the decisions and dicta rest. 
 Mills V. Long was decided on the ground that the surgeon was under the com- 
 mand of the master, and as much obliged, if called upon by the master, to assist 
 in navigating the ship as the carpenter. Sir Willia77i Scott's doubt rests on 
 the assumption that the surgeon is not obliged to render such services, and we 
 suppose, at the present day, that the surgeon takes no part in the navigation of 
 the vessel. Judge Peters gives no reason for his opinion, but states it as a matter 
 about which there is no doubt. We think, however, that the true reason for sus- 
 taining the jurisdiction in such a case is stated by Judge Hopkinson, in the cases 
 above referred to, to be the nature of the service which the surgeon renders in 
 attending to the health of the crew and ministering to the sick, as a carpenter is 
 required for the preservation and repair of the ship in case of accident, and the 
 cook and steward to feed the crew. And in Ross v. Walker, 2 Wilson, 264, de- 
 cided in 1765, there is a dictum that a surgeon may sue in admiralty, because he 
 preserves those who preserve the ship. 
 
 ' See The Jane & Matilda, 1 Hagg. Adm. 187; Wolverton v. Lacey, U. S. 
 D. C. Ohio, 18 Law Rep. 672; Sageman v. Sch. Brandywine, 1 Newb. Adm. 5. 
 Lord Siowell, in the case first cited, entertained the suit with much reluctance, on 
 the ground of the tendency to immorality which the presence of a female on 
 board in that capacity would create. But his objections would apply more 
 strongly to the hiring of a female, than to her claim for wages after she had per- 
 formed her duty. 
 
 ' The Sch. Highlander, 1 Sprague, 510.
 
 184 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 men on board the vessel have no lien, because the service they 
 perform is not maritime ; ^ as, for example, barbers.^ 
 
 So musicians, hired as such, and employed only as such, have 
 no lien,^ nor had persons employed on board a vessel which was 
 used to carry wood to Philadelphia from a point on the Delaware 
 bank of the river, nearly opposite the city.* But a libel will be 
 sustained for seamen's service on board vessels which go between 
 ports of adjoining States, or from port to port even in the same 
 State ; ^ but not, it has been said, on board ferry-boats, or tugs or 
 lighters employed in ordinary traffic along our shores.^ It is now 
 
 ^ Packard v. The Louisa, 2 Woodb. & M. 48. 
 
 - In Thackarey v. The Farmer, Gilpin, 524, 534, Hopkinson, J., said: "If the 
 master should take with him a servant, whose sole business should be to shave 
 him or comb his hair ; or another to amuse him with a violin, the service would 
 be performed on the high sea, but would it be a maritime contract or service, for 
 which the ship could be libelled and attached in the admiralty, or her owners be 
 personally responsible by any process ? " 
 
 ' Trainer v. The Superior, Gilpin, 514. The libellants in this case were em- 
 ployed as musicians on board a museum boat which went from State to State. 
 
 * Thackarey v. The Farmer, Gilpin, 524. 
 
 ^ Smith V. The Sloop Pekin, Gilpin, 203. In the case of The Coal Boat D. C. 
 Salisbury, Olcott, Adm. 71, the boat was of forty- four tons burden, enrolled and 
 licensed as a coaster, and was employed in transporting coal from Philadelphia to 
 New York by the way of the Delaware river and the Raritan canal and river. 
 She was towed by steamboats to, through, and from the canal, and the men on 
 board performed no other service in her navigation on tide waters than aiding in 
 steering her at particular times of tide, and occasionally at particular points on 
 the passage. It was held that as the service was principally on tide waters, the 
 court had jurisdiction of the case, and would enforce a lien for wages. See next 
 note. 
 
 * In Thackarey v. The Farmer, Gilpin, 524, the general question as to the 
 rio^hts of seamen in certain small craft, was fully considered. The court held that 
 a contract for the payment of labor on board of a vessel employed in carrying fuel 
 to the city of Philadelphia from the opposite shore of the Delaware river, could 
 not be enforced by a suit in rem in the admiralty. It was strongly contended that 
 this fell within the definition laid down in The Thomas Jefferson, 10 Wheat. 428. 
 And so it would seem. But the judge held, 1st, that the strong and pointed lan- 
 gua"-e of the definition which laid down tide waters as the guide to the jurisdic- 
 tion, must be considered with reference to the case itself, that point being espe- 
 cially under consideration ; and 2d, that a great abuse had been going on of this 
 definition, so that every cockleshell considered itself a ship, and every farmer who 
 brought produce to the market at Philadelphia thought himself a navigator of 
 the vasty deep. He therefore said that ferry-boats, and such as are engaged in 
 ordinary traffic along our shores, are not within admiralty jurisdiction. The
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 185 
 
 provided by statute that a canal boat without masts or steam 
 power, noiv required by law to be registered, licensed, or enrolled 
 and licensed, is not subject to be libelled in any of the United 
 States courts, for the wages of any person or persons who may be 
 employed on board thereof, or in navigating the same.^ And it 
 has been doubted whether a canal-boat, exclusively adapted to 
 canal navigation, and having, of itself, no power of navigation, is 
 subject to a maritime lien for the breach of a contract of affreight- 
 ment.2 A libel will be sustained for service as seamen in fit- 
 ting out a vessel which does not go to sea, the voyage being given 
 up by the owners.^ If a seaman, after the voyage is finished, re- 
 decision ha3 been acquiesced in, and is cited with approval, by Kent in Vol. I. 
 p. 379, n. See also Boon v. The Hornet, Crabbe, 426. 
 
 In Packard v. The Louisa, 2 Woodb. & M. 48, 53, where the llbellant was en- 
 gaged in a small vessel which carried stone from Quincy to Boston, and helped 
 lay the stone as well as to navigate the vessel, though the claim of the seaman 
 was really denied on the ground of too long delay, yet from what the court said, 
 the nature of the employment was probably considered enough to take it out of 
 admiralty. " It is doubtful, therefore, whether Packard's employment on board 
 of The Louisa, partly in loading and laying stone, or the business of the sloop 
 herself, could be regarded strictly as maritime and commercial. It seemed to 
 be not wholly that of the sailor, whose services in and for the ship, and whose 
 reckless character in ocean dangers, have made the law indulge him with this 
 additional security." But in the case of The Sloop Canton, 1 Sprague, 437, 
 where the vessel was engaged in a similar employment, Judge Sprague held the 
 vessel liable for the wages, on the ground that the persons engaged on board 
 must have been possessed of some skill in navigation. " They must," said the 
 learned judge, " have steei'ed, furled, and reefed the sails, and brought the vessel 
 to anchor. They must have been able to hand, reef, and steer, a common crite- 
 rion of ordinary seamanship. They ought also to have known the rules of naviga- 
 tion in regard to collisions, and bad they negligently run afoul of another vessel, 
 the owners of this sloop would have been held responsible for the damage. I can- 
 not hold that the duties which these libellants performed were merely those of 
 landsmen." It was shown that the stones when taken out of the vessel were laid 
 by the crew, in order so as to make a wharf It was held that this was but a way 
 of unloading the vessel, and was but subsidiary to the principal business. Similar 
 decisions were made in The Sch. Mary, 1 Sprague, 204 ; and in The Sarah Jane, 
 U. S. D. C. Mass., Lowell, J., 2 Am. Law Review, 455. See also post, 
 p. 186, n. 3. 
 
 ^ Act of 1846, c. 60, 9 U. S. Stats, at Large, 38. The word now is probably a 
 misprint for not. 
 
 " The Ann Arbor, 4 Blatchf C. C. 205. 
 
 » Wells V. Osman, 2 Ld. Raym. 1044, 6 Mod. 238.
 
 186 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 mains on board, as watchman or keeper, or in any such capacity, 
 he cannot sue in admiralty for the wages of this service, as sea- 
 man.^ But if the voyage is not ended, but only temporarily de- 
 layed, and the seaman not discharged, it is a continuing service in 
 the capacity of seaman.*-^ And perhaps if his wages as seaman 
 have not been paid, and he libels the owners for them, the court, 
 having jurisdiction, would include all that was due to him for 
 further service.^ It has been held that an assignee of the wages 
 of a seaman, cannot maintain an action in rem in the admiralty.* 
 
 The English courts of admiralty declined for a long time juris- 
 diction in what are called petitory suits, in which the mere title to 
 property is in question or litigation. Quite recently this jurisdic- 
 tion has been restored and exercised ; and we have no doubt that 
 
 * See Phillips v. The Thomas Scattergood, Gilpin, 1. It did not clearly appear 
 in this case whether the libellant had been regularly discharged or not, but the 
 court held that this made no difference ; that as the voyage was ended for which 
 the libellant had shipped, he was at liberty to depart, and that if he was after- 
 wards employed to watch the ship, it was not in continuation of his former service, 
 and, not being of a maritime nature, no suit would lie in admiralty. See also 
 Graham v. Hoskins, Olcott, Adm. 224. 
 
 ' Pitman v. Hooper, 3 Sumner, 50 ; Brown v. Lull, 2 id. 443. See The 
 Saratoga, 2 Gallis. 164. 
 
 ' It is very clear that the seaman may recover his wages, although d.uring part 
 of the time he performed services which were not strictly maritime in their 
 nature. See The Jane & Matilda, 1 Hagg. Adm. 187. And it would clearly 
 seem that he could do so, although the voyage was ended, if he was retained on 
 board and his original wages were not paid. The Gazelle, 1 Sprague, 378. In 
 the case of The Sloop Canton, 1 Sprague, 437, part of the service was the laying of 
 stone in the building of a wharf It was urged that this was not a maritime service, 
 but Judge Sprague held that it was so far connected with and subservient to the 
 maritime service of navigating the vessel, that the whole might be deemed mari- 
 time. The learned judge stated the general rule thus : " If the contract is for the 
 navigation of tide waters and the transportation of merchandise thereon, and the 
 laying stone, which constitutes the cargo of a vessel, into the wall of the wharf as 
 it is discharged, is merely incidental and subsidiary to the principal business, the 
 whole service may be considered maritime. But if, on the contrary, the naviga- 
 tion is merely incidental and subsidiary to the principal business of the owner or 
 hirer of the vessel, such, for example, as the transportation across a river of the 
 stone to be used by him in the construction of a building upon which he is en- 
 gaged, then the contract as a whole would not be maritime." See also McCor- 
 mick V. Ives, Abbott, Adm. 418. 
 
 * Patfhin v. The A. D. Patchin, U. S. D. C. Northern District of New York, 
 12 Law Rep. 21.
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 187 
 
 formerly suits of this description came before the courts as freely 
 as possessory suits, in which an owner by legal title demands that 
 a possession, which is unjustly withheld, should be restored to 
 him.i In this country, no such distinction is made, one class 
 of actions being as much within the reach of the court as the 
 other.^ It would seem also that the courts have jurisdiction over 
 
 * Of this, Kent says, Vol. I. p. 371, " The distinction does not appear to rest on 
 any sound principle, for the question of title is necessarily involved in that of the 
 possession ; " and the remarks of Sir Wm. Scott, show the great embarrassment 
 in which the court is thrown by this unjust and arbitrary restriction of their juris- 
 diction. In The Aurora, 3 Rob. Adm. 133, 136, he said : "It is well known that 
 it was formerly held for a very long time, and down to no very distant period, to 
 be within the jurisdiction of this court to examine and pronounce for the title of 
 ships, on questions of ownership. It was not till some time after the Restoration, 
 I believe, that it was informed by other courts that it belonged exclusively to 
 them ; since that time, the court has been very cautious not to interfere at all in 
 questions of this nature." In The Warrior, 2 Dods. 288, 289, he said : " A question 
 of title may occur incidentally in a cause of possession, and it then becomes ne- 
 cessary for the court to inquire into the title, at least so far as to satisfy itself 
 that it may safely decree possession to the party seeking it. It cannot be laid 
 down that the court is to decline its jurisdiction in a cause of possession, on the 
 mere averment of one of the parties that there is a conflicting claim of title." In 
 The Pitt, 1 Hagg. Adm. 240, 244, he said : " I may, therefore, lay it down as a rule 
 for the conduct of this court, that it is only in simple cases, in cases which speak 
 for themselves, that it can act with effect ; but in those which, being complex, re- 
 quire a long and minute investigation, it cannot proceed with safety." Sir C. 
 Robinson followed these decisions closely in The John, 2 Hagg. Adm. 305 ; The 
 Fruit Preserver, id. 181. See also The Martin of Norfolk, 4 Rob. Adm. 293. 
 By 3 & 4 Vict. c. 65, the English court has its ancient power in these cases re- 
 stored. This act provides that the court " shall have jurisdiction to decide all 
 questions as to the title to, or ownership of any ship or vessel, or the proceeds 
 thereof remaining in the registry, arising in any cause of possession, salvage, dam- 
 age, wages, or bottomry, which shall be instituted in the said court after the pass- 
 ing of this act." Before this act was passed, it was unifdrmly held that the court 
 could look only to the legal title, and not to a beneficial or equitable interest. 
 The Sisters, 5 Rob. Adm. 155. Judge ConHing remarks that "it appears, by a 
 case since decided, that this principle is still adhered to by the court, notwith- 
 standing its enlarged powers and modified constitution." 1 Adm. Juris. 339, 
 citing The Valiant, 1 W. Rob. 64. This case was, however, decided in July, 
 1839, before the passage of the act in question, which was on the 7th day of 
 August, 1840. 
 
 ^ Ward V. Peck, 18 How. 267 ; New England Ins. Co. v. Brig Sarah Ann, 13 
 Pet. 387 ; The Sch. Tilton, 5 Mason, 465 ; The Friendship, 2 Curtis, C. C. 426; 
 Taylor v. The Royal Saxon, 1 Wallace, C. C. 311 ; The Taranto, 1 Spi-ague, 170. 
 We shall consider this subject more fully hereafter. See post, c. 7, sect. 1.
 
 188 LAW AXD JTBISDICTION OF ADiHRALTT. [BOOK H. 
 
 contracts of consortship^ and wharfage- and towage.-^ But there 
 is no jurisdiction in matters of account between part-owners,* 
 although the part-owners sailed the ressel, and the libellant was a 
 carpenter on board.-^ And equitable co-owners of a vessel, who 
 are also material men, cannot sue in admiralty the other co-owners 
 to secure their bill for supplies, if their claim constitutes a portion 
 of the accounts of the part-owners.® 
 
 So where several persons join together to carrv on an adventure 
 in trade for their mutual benefit, one contributing a vessel, and 
 the other his skill, labor, experience, etc., and there is to be a com- 
 munion of profits on a fixed ratio, it is a contract over which a • 
 court of admiralty has no jurisdiction," But the fact that the master 
 of a vessel is part-owner, and in his capacity of owner is indebted 
 to the other owners, does not prevent him from suing them for his 
 wages as master.^ There is no jurisdiction over an account be- 
 tween the owners of a vessel and their general agent for money 
 
 1 Andrews r. Wall, 3 How. 568. The appellees, in this case, had filed a peti- 
 tion in the admiralty court in Florida, setting forth that they were owners of 
 a schooner, which had been consorted with the sloop Globe in the business of 
 wrecking. That while so consorted, the Globe had performed a salvage service, 
 and that payment had been decreed her by the admiralty court, and that a por- 
 tion of the salvage was due the petitioners by virtue of the consortship, and 
 praved that the sum due them might be retained by the court and paid to them. 
 Mr. Justice Story, delivering the opinion of the court, held that they had, on 
 general principles, jurisdiction to maintain the suit, that it was to enforce a mari- 
 time contract for services to be rendered on the sea, and an apportionment of the 
 salvage earned therein. The jurisdiction was also sustained on the independent 
 ground that the suit was for proceeds in the hands of the admiralty, and that such 
 suits might always be maintained by the parties in interest. 
 
 « Ex parte Lewis, 2 Gallis. 483; The Phebe, Ware, 360; Johnson v. The 
 M-Donou<ih, Gilpin, 101. See Ives v. The Buckeye State, 1 Newb. Adm. 69 ; 
 and Eussel v. The Asa R. Swift, id. 553. 
 
 ^ Ward V. Brig Banner, U. S. D. C. Michigan, 14 Law Rep. 465. 
 
 * Steamboat Orleans v. Phoebus, 1 1 Pet. 1 75. And in a late case where the 
 master of a vessel who was also part-owner, made a contract of affreightment with a 
 lumber company, of which he was also a member, and the cargo was consigned to 
 him, the supreme court refused to take jurisdiction, on the ground that there being 
 acompHcated account to adjust, the matter more properly belonged to a court of 
 equity. Grant v. Poillon, 20 How. 162. 
 
 ' Kellum V. Emerson, 2 Curtis, C. C. 79. 
 
 ' Hall V. Hudson, 2 Sprague, 65. See also Hazard v. Howland, id. 68. 
 
 ' Ward V. Thompson, 22 How. 330. 
 
 ^ Dexter v. Munroe, 2 Sprague, 39.
 
 CH. I.] JURISDICTION AS DETERMINED BY THE SUBJECT-MATTER. 189 
 
 paid to their use.^ The court has no po-^er to decree the sale of a 
 ship for an unpaid mortgage, nor, on that account, can it declare a 
 ship to be the property of the mortgagees, and decree the posses- 
 sion of it to be given to them.^ And in a case "where the owners 
 of different vessels agreed to form a line for carrying passengers 
 and freight between New York and San Francisco, they dividing 
 the profits between them, it "was held to be but a contract for a 
 limited partnership, and that an action for a breach of it would 
 not lie in admiralty.^ 
 
 It has been held that a ship-broker who obtains a crew for a 
 vessel has a lien on her for his services and for advances for their 
 wages.* 
 
 But stevedores have no lien in rem for their services in load- 
 ing a vessel.^ Nor can they sue in personam for their services, in 
 admiralty.^ They may, however, proceed against remnants in the 
 registry." And a person employed to visit a vessel from time to 
 time to see to her safety, ventilate her, and try her pumps, etc., 
 cannot sue in the admiralty to recover compensation for his ser- 
 vices, but he can maintain a suit if he navigates the vessel from 
 
 * Minturn v. Maynard, 17 How. 477. 
 
 ' Bogart V. Steamboat John Jay, 17 How. 399, s. c nom. The John Jay, 3 
 Blatchf. C. C. 67. In Schuchardt v. Ship Angelique, 19 How. 239, it was held 
 where a mortgage existed upon the moiety of a vessel which was afterwards 
 libelled, condemned and sold by process in admiralty, and the proceeds brought 
 into the registry of the court, that the mortgagee could not file a hbel against a 
 moiety of the proceeds, but that his proper course should have been either to 
 have appeared as claimant when the first libel was filed, or to have applied to the 
 court by petition for a distributive share of the proceeds. In a note to The Gran- 
 ite State, 1 Sprague, 277, 278, it is said that prior to these cases, jurisdiction had 
 been exercised over questions of property between the mortgagor and mortgagee 
 both in Massachusetts and the Eastern District of Pennsylvania, in cases which 
 have not been published. 
 
 ' Yandewater v. Mills, 19 How. 82, nom. Yandewater v. The Steamship 
 Yankee Blade, 1 McAll. C. C. 9. 
 
 « The Gustavia, Blatchf. & H. Adm. 189. 
 
 * The Amstel, Blatchf. H. Adm. 215 ; The Bark Joseph Cunard, Olcott, Adm. 
 120 ; M'Dermott v. The S. G. Owens, 1 Wallace, C. C. 3 70. 
 
 * Cox V. Murray, Abbott, Adm. 340. The action in this case was to recover 
 damages for the breach of an executory contract, no services having been actually 
 performed. But the language of the court, both in this case and in those cited iu 
 the preceding note, fully sustains the position of the text. 
 
 ' Emerson v. Proceeds of The Pandora, 1 Newb. Adm. 438.
 
 190 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 one anchorage to another. ^ And a person hired to scrape the 
 bottom of a vessel, preparatory to her being coppered, cannot sue 
 in admiralty .2 So the expense of compressing a cargo for the pur- 
 pose of more convenient stowage, the cost of advertising the vessel 
 for sea, and posting the advertisements, commissions for procur- 
 ing freight, and wages of lightermen, do not give a lien on the 
 ship.^ Nor has a ship-broker any lien on the vessel for services in 
 drawing a contract between the owner of horses shipped as part 
 of the cargo, and persons who were to accompany the vessel and 
 take charge of the horses, as hostlers.^ 
 
 It has also been determined that the admiralty has no jurisdic- 
 tion over a preliminary agreement to execute a maritime contract, 
 and Mr. Justice Story has said that, " if there were a contract to 
 build a ship, or to sign a shipping paper, or to execute a bottomry 
 bond, and the party refused to perform it, it has never been my 
 impression that the enforcement of such a contract belonged to the 
 admiralty." ^ 
 
 ^ Gurney i'. Crockett, Abbott, Adm. 490. 
 
 2 Bradley i^. Bolles, Abbott, Adm. 569. 
 
 ^ The Bark Joseph Cunard, Olcott, Adm. 120. 
 
 * The Gustavia, Blatchf. & H. Adm. 189. 
 
 ' Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 16. See also The Sch. Trib- 
 une, 3 Sumner, 144. In The Pacific, 1 Blatchf. C. C. 569, a contract to carry a 
 passenger from New York to San Francisco was broken before the ship sailed, 
 by the refusal of the owners to comply with their agreement in respect to the 
 fitting up of the vessel, and the number of passengers that were to be carried. 
 It was held that the admiralty had jurisdiction.
 
 CH. II.] THE SUPREME COURT OF THE UNITED STATES. 191 
 
 CHAPTER II. 
 
 OF THE JURISDICTION OF THE SEVERAL COURTS OF ADMIRALTY 
 IN THIS COUNTRY. 
 
 SECTION I. 
 
 THE SUPREME COURT OF THE UNITED STATES. 
 
 This court has no original jurisdiction in admiralty, but receives 
 appeals from the circuit court, where the matter in dispute exclu- 
 sive of costs, exceeds the sum or value of two thousand dollars.^ 
 If the matter in controversy is exactly two thousand dollars, no 
 appeal lies.^ This is also held to mean a property value, and 
 unless the fact of value is shown on the record, or by evidence 
 aliunde, the court has no jurisdiction to hear or to re-examine 
 the case.^ 
 
 No appeal lies from the district court to the supreme.* And it 
 must appear from the record that the circuit court had jurisdiction 
 of the case, by an appeal to it duly entered in the district court.^ 
 If the libellant claims less than a sum exceeding two thousand 
 dollars, he cannot appeal by showing that interest being added 
 makes up the requisite amount, unless the interest is specially 
 
 1 Act of March 3, 1803, c. 40, § 2, 2 U. S. Stats, at Large, 244. 
 
 ^ Walker v. United States, 4 "Wallace, 163. It is not sufficient to claim that 
 the damages are " eighteen hundred dollars and upwards." Olney v. Steamship 
 Falcon, 17 How. 19. 
 
 ^ Thus where a decree was made against the claimant of a vessel and his sure- 
 ties, and they were arrested, but afterwards released on habeas corpus, on the 
 ground that they could not be imprisoned, as the law of the State had abolished 
 imprisonment, and a writ of error was then taken by the libellant, it was held 
 that the supreme court had no jurisdiction of the case. Pratt v. Fitzhugh, 1 
 Black, 276. 
 
 * The Sloop Sally v. The United States, 5 Cranch, 372. 
 
 ^ Ballance v. Forsyth, 21 How. 389. In this case the court allowed the appel- 
 lant leave to withdraw the transcript which had been filed, and to use it on the 
 appeal being brought again before the court.
 
 192 LAW AND JURISDICTION OF ADMIRALTY. [BOOK U. 
 
 claimed in the libel. ^ If judgment is given for the libellant, for 
 an amount less than a sum exceeding two thousand dollars, the 
 respondent cannot appeal by showing that the interest on the judg- 
 ment, at the time of the appeal, added to the judgment, amounted 
 to more than two thousand dollars.^ And affidavits that the matter 
 in dispute exceeds two thousand dollars, are not admissible.^ In a 
 case where, upon a libel to recover damages against ship-owners, a 
 decree was passed in the circuit court against them for over two 
 thousand dollars, with leave to set off a sum due them for freight, 
 and the respondents elected to set off the balance, and a decree was 
 then entered for less than two thousand dollars, it was held that no 
 right of appeal to the Supreme Court existed, although the proctors 
 for the respondents, at the time of making their election, filed a state- 
 ment in writing, that the election to set off was made without waiver 
 of their right to appeal from the decree.* The court will also take 
 jurisdiction where the decree in the circuit court was rendered 
 fro forma because the presiding judge had been of counsel in the 
 case.^ But the court will not take jurisdiction by agreement of 
 parties, if the amount in dispute, however agreed by counsel, is 
 shown by the case not to be sufficient,^ or if on account of some 
 
 ^ Udall V. Steamship Ohio, 1 7 How. 1 7 ; Olney v. Steamship Falcon, 1 7 How. 
 19. See Godfrey v. Gilmartin, 2 Blatchf. C. C. 340. 
 " Knapp V. Banks, 2 How. 73 ; Walker v. United States, 4 Wallace, 163. 
 
 * Richmond v. City of Milwaukie, 21 How. 391. Where several persons join 
 in a libel and claim damages amounting in the aggregate to over two thousand 
 dollars, and one of them only appeals to the Supreme Court, he may show by affi- 
 davits that his damage exceeded two thousand dollars. The Grace Girdler, 6 
 Wallace, 441. 
 
 * Sampson v. Welsh, 24 How. 207. 
 
 * Steamer Oregon v. Rocca, 18 How. 570. 
 
 ' Mordecai v. Lindsay, 19 How. 199. In Gruner v. The United States, 11 
 How. 163, the vessel was seized for a violation of the registry laws, and while the 
 suit was pending in the district court, a written agreement was filed by the dis- 
 trict attorney and the proctor for the claimant, that the vessel should be soUl and 
 the proceeds paid into the registry of the court, to abide the ultimate decision of 
 the suit, the rights of neither party to be prejudiced by the sale. The vessel was 
 sold for $ 850, and was afterwards condemned. There was an agreement on 
 record, signed by the attorneys of the parties, admitting that the vessel was worth 
 over two thousand dollars. The court held that the admission of the parties 
 would be evidence of the value if nothing more appeared in the record, but that 
 the consent of the parties could not give the court jurisdiction, and that, as it 
 appeared on the face of the record that the sum in controversy was below two 
 thousand dollars, the appeal must be dismissed.
 
 CH. II.] THE CIRCUIT COURTS OF THE UNITED STATES. 193 
 
 informality the appeal should be dismissed,^ or if the case is not of 
 a maritime nature.^ 
 
 The Supreme Court has also " power to issue writs of prohibition 
 to the district courts, when proceeding as courts of admiralty and 
 maritime jurisdiction."^ This writ is issued where the district 
 court has not jurisdiction of the cause brought before it.* The 
 writ commands the person to whom it is directed not to do some- 
 thing which, by the suggestion of the relator, the court is informed 
 he is about to do. If the thing is already done, the writ of pro- 
 hibition cannot undo it, and the only effect of the writ is to sus- 
 pend all action, and to prevent any further proceeding. Hence, 
 in a case where a writ was applied for to prevent a judge of a dis- 
 trict court from proceeding any further in a certain cause in 
 admiralty, and a rule was granted on the judge to show cause why 
 the writ should not issue, and the judge thereupon, after the rule 
 had been served upon him, on petition of the libellant, dismissed 
 the suit, it was held that there was no ground for issuing the 
 writ, as the suit was ended.^ 
 
 SECTION 11. 
 
 THE CIRCUIT COURTS OF THE UNITED STATES. 
 
 These courts have only an appellate admiralty jurisdiction from 
 a district court, where the matter in dispute, exclusive of costs, 
 exceeds the sum or value of fifty dollars,*^ and the appeal can be 
 made only from final decrees of a district court.'^ As to all pro- 
 
 * Montgomery v. Anderson, 21 How. 386 ; Ballance v. Forsyth, id. 389. 
 « Cutler V. Rae, 7 How. 729. 
 
 ' Act of 1789, c. 20, 1 U. S. Stats, at Large, 81. 
 
 * United States v. Peters, 3 Dallas, 121. 
 
 * United States v. Hoffman, 4 Wallace, 158. It was also held in this case that 
 the fact that there were other suits pending against the same relator, of the same 
 character, in the same court, could have no legal force in the case before the 
 court. It was said that if the relator could satisfy the court that the other cases 
 were proper cases for the exercise of their authority, the court would probably issue 
 writs instead of a rule. 
 
 ^ Act of March 3, 1803, c. 40, § 2, 2 U. S. Stats, at Large, 244. 
 ^ Thus where a final decree of condemnation had been made of forfeited prop- 
 erty, and no appeal had been interposed, and, after execution had been issued, the 
 
 VOL. II. 13
 
 194 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 ceedings subsequent to the appeal, they are incidents of the prin- 
 cipal cause, and belong to the court which remains in possession 
 thereof, and the property therefore follows the appeal into the 
 circuit court. ^ If there be an appeal to the supreme court, the 
 property, in proceedings i7i rem, remains in the circuit court, and 
 will be disposed of as the supreme court directs.^ 
 
 The jurisdiction, both of the circuit and district courts, in prize 
 as well as other causes, is limited by the bounds of their respective 
 circuit or district ; and it is therefore essential that the person or 
 the thing against which the suit is directed, be within their local 
 jurisdiction .3 The exceptions to this rule are those for which 
 
 parties obtained a remission from the secretary of the treasury, and petitioned the 
 district court that the executions which had been issued might be superseded, 
 and they permitted to comply with the terms of the remission, and the district 
 court having refused to grant the petition, the petitioners appealed to the cii-cuit 
 court, the court xlismissed the appeal, on the ground that it was not regularly 
 before the court. The final decree was made some time before, and no appeal 
 had been made, and it had been settled in McLellan v. United States, 1 Gallis. 
 227, " that this court has no jurisdiction over the proceedings on the bond, which 
 is but an admiralty stipulation, unless it has possession of the cause to which it 
 belongs." The Brig HoUen, 1 Mason, 431. See also Mordecal i'. Lindsay, 19 
 How. 199, and cases supra. 
 
 ' The Grotius, 1 Gallis. 503 ; Hayford v. Griffith, 3 Blatchf C. C. 36 ; The 
 Collector, 6 Wheat. 194. In this case, it is said to be irregular for the marshal to 
 distribute proceeds without order of court, but the irregularity may be cured by 
 consent of all parties, if there be no mala jides. 
 
 2 The Collector, 6 Wheat. 194. The 24th section of c. 20, Acts of 1789, 1 
 U. S. Stats, at Large, 85, prescribes that " the Supreme Coui-t shall not issue 
 execution in causes that are removed before them by writs of error, but shall 
 send a special mandate to the circuit court to award execution thereon." The 
 act of 1803, c. 40, which changes the mode of carrying the case up from a writ of 
 error to an appeal, provides that such appeals shall be subject to the same rules, 
 regulations, and restrictions as are prescribed by law in cases of writs of error. 
 
 ^ In Ex imrte Graham, 4 Wash. C. C. 211, 212, the court, speaking of the 
 inability of the courts to carry process out of their own districts, and reciting the 
 provisions of the Judiciary Act of 1789, said: "These provisions appear most 
 manifestly to circumscribe the jurisdiction of those courts as to the person of the 
 defendant, by the limits of the district where the suit is brought ; and that the 
 process of those courts was considered by the legislature to be bounded by the 
 same limits, is very obvious from two subsequent acts passed ; the one on the 2d 
 of March, 1793, authorizing subpoenas for witnesses to attend in the courts of one 
 district to run into any other district, not exceeding in civil cases one hundred 
 miles from the place of holding the court ; and the other on the 3d of March, 
 1797, which authorizes writs of execution upon judgments obtained at the suit of
 
 CH. II.] THE CIRCUIT COURTS OF THE UNITED STATES. 195 
 
 express provision is made by law. It would seem to follow, there- 
 fore, that no court can send process into another district tlian that 
 in which it sits, to compel appearance ; nor can a prize proceed- 
 ing be directed against a person who is neither an inhabitant of 
 nor actually within the district where process is served. So a 
 decree against merchandise rendered in one district is valid 
 against the merchandise, if it appear that the party charged with 
 it had or has possession of it or of its proceeds ; and it may be 
 enforced on proper application to courts of other districts. But a 
 libel in another district, against a resident citizen thereof, for the 
 value of the merchandise, he being charged with having come into 
 possession of it since the condemnation, cannot be sustained if he 
 pleads that he was no party to the proceedings in the district 
 where the decree was made, and that no process was served upon 
 him there. ^ 
 
 If on appeal to the circuit court it appears that the judge is in 
 anyways concerned in interest therein, or has been of counsel for 
 either party, or is so related to or connected with either party as 
 to render it improper for him, in his opinion, to sit in the trial of 
 such suit, it is the duty of such judge, on application of either 
 party, to cause the facts to be entered on the records of the court, 
 and also to make an order that an authenticated copy thereof, with 
 all the proceedings in such suit or action, shall be forthwith cer- 
 tified to the next convenient circuit court in the next adjacent 
 State, or in the next adjacent circuit ; ^ which circuit court shall, 
 
 the United States, in any of their courts in one State, to run, and be executed, in 
 any other State or Territory. It is very apparent that these provisions were 
 made, not because they were supposed by Congress to be necessary in consequence 
 of the eleventh section of the judicial act before mentioned, but because the 
 jurisdiction of the courts was essentially confined by their organization within the 
 limits of their respective districts, for, it is to be observed, that that section applies 
 exclusively to original suits, and to the parlies to those suits, and therefore it 
 imposed no restraint as to writs of execution, and subpoenas for witnesses, so as to 
 render the above provisions at all necessary." See also Toland v. Sprague, 12 
 Pet. 300, 330; and post, p. 218. 
 
 ^ For the rules in these cases, see Wilson v. Graham, 4 Wash. C. C. 53 ; Ex 
 parte Graham, 4 Wash. C. C. 211. 
 
 - In Richardson v. City of Boston, 1 Curtis, C. C. 250, the plaintiff was a cit- 
 izen of Rhode Island and brought suit in the United States circuit court in the 
 district of Massachusetts. Both the judges of that court being disqualified, the 
 case had to be removed to another circuit, and the question was whether it should
 
 196 LAW AND JURISDICTION OF ADMIRALTY. [ROOK II. 
 
 upon such record and order being filed witli the clerk thereof, take 
 cognizance thereof in the same manner as if such suit or action 
 had been rightfully and originally commenced therein, and shall 
 proceed to hear and determine the same accordingly, and the 
 proper process for the due execution of the judgment or decree 
 rendered therein, shall run into and may be execnted in the dis- 
 trict where such judgment or decree was rendered, and also in 
 the district from which such suit or action was removed.^ 
 
 SECTION III. 
 THE DISTRICT COURTS OF THE UNITED STATES. 
 
 The statute of 24th September, 1789,^ gave to these courts 
 original cognizance of all civil causes of admiralty and maritime 
 jurisdiction ; and they thereby acquired all the powers of the 
 courts of admiralty, both on the instance and the prize sides, and 
 have jurisdiction of all cases of maritime trespass or tort.^ 
 
 The original jurisdiction of the district court is not ousted by 
 any State laws which relate to the same subject. As for example, 
 laws respecting pilotage or liens of mechanics or material men, 
 
 be removed to the circuit court of Rhode Island or of New York. The case was 
 ordered to be certified to Rhode Island. Curtis, J., said: " The leading idea of 
 the law is, I think, proximity of place ; and that circuit court which is competent 
 to act, and nearest to the subject of the controversy, the witnesses, the parties, 
 and the court whence the removal is to take place, is the most convenient circuit 
 court within the meaning of this act." The learned judge also said : " There are 
 two governing elements contained in the statute. The first is, " the most con- 
 venient circuit court " ; the second, " in the next adjacent state or circuit." It is 
 not difficult to see why the alternative was given, allowing a removal to a circuit 
 court in the next adjacent circuit, instead of confining it to the next adjacent 
 State. In admiralty appeals, or writs of error from the district court, if the judge 
 of the Supreme Court be interested, it would not be in accordance with our system, 
 and scarcely decorous in itself, to remove the cause to another district in the same 
 circuit, to be heard by another district judge; and it is possible that a circuit 
 court might not be found in the next adjacent State." 
 1 Act of 1839, c. 36, § 8, 5 U. S. Stats, at Large, 322. 
 
 * Ch. 20, § 9, 1 U. S. Stats, at Large, 76. 
 
 * Davis V. A New Brig, Gilpin, 473 ; The Amiable Nancy, 1 Paine, C. C. Ill, 
 3 Wheat. 546, and cases cited in the reporter's note ; Keene v. The United 
 States, 5 Cranch, 304.
 
 CH. II.] THE DISTRICT COURTS OF THE UNITED STATES. 197 
 
 even if their laws are adopted and enforced by the courts of the 
 United States.^ Their effect is, then, to give to the State courts a 
 jurisdiction on these subjects concurrent with that of admiralty. 
 A party may elect to go into either court, but if he goes into admi- 
 ralty he will recover there no more than the State laws would per- 
 mit him to recover in the State courts. In such a case, and in all 
 other cases where the State court and the United States court 
 have concurrent and co-ordinate jurisdiction, the right to maintain 
 jurisdiction belongs to that court which exercises it first and takes 
 possession of the thing. If, therefore, the sheriff attach property, 
 and it is afterwards libelled in the district court, and process of 
 attachment is delivered to the United States marshal, he should 
 return the previous attachment, and not attempt to take it from 
 the sheriff's hands.^ The same may be true where the State court 
 has, by virtue of a special statute, power to enforce to the same 
 extent the claim which is the subject of the suit in the admiralty 
 court, in which case the party would lose nothing by being de- 
 prived of his right to sue in admiralty.^ 
 
 Further than this we are not inclined to go, and were the ques- 
 tion still an open one, we should say that the lien for seamen's 
 wages might be enforced in the admiralty court against the vessel, 
 notwithstanding she was under arrest in the State court. Our 
 reasons for this are that the lien for wages is by our law para- 
 mount, and would attach to the ship notwithstanding she were 
 sold by order of a State court, and consequently no injury could 
 result to the attaching creditor ; and also on account of the great 
 hardships which result from depriving seamen of their wages while 
 the suit in the State court is dragging its weary length along, 
 
 ' Hobart v. Drogan, 10 Pet. 108. 
 
 « Hagan v. Lucas, 10 Pet. 400; The Oliver Jordan, 2 Curtis, C. C. 414 ; The 
 Robert Fulton, 1 Paine, 620. It was held, in these last two cases, that a material 
 man could not enforce his lien in the admiralty court, while the vessel was under 
 arrest by State process by another material man. 
 
 ^ Keating v. Spink, 3 Ohio State, 105. It was held, in this case, that a sheriff 
 who had a vessel under arrest by process under the water-craft law of the State, 
 had no right to surrender it to the United States marshal on a suit for seamen's 
 wages in the admiralty court, and that he was liable to the creditor in the suit in 
 the State court for having given up the possession. Some reliance was placed on 
 the distinction pointed out in the text, that by the law of Ohio the seamen might 
 have intervened and had their claim for wases satisfied in the State court.
 
 198 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 through several years.^ But a majority of the Supreme Court of 
 the United States having decided otherwise, we must take the law 
 as we find it, and accordingly state that when a vessel is under 
 arrest by a State court, for any debt of the owner, the power of 
 the admiralty is for the time entirely suspended.^ But the sheriff 
 
 ' This precise point arose in the ease of Poland v. The Brig Spartan, Ware, 
 134, 147. The suit was brought in the district court of Maine, for seamen's 
 wages, against the freight and cargo of the vessel. One defence was that the 
 property had been attached by sundry creditors of the charterers, and the suits 
 were then pending in the State court. Judge Ware said : " It is argued that, 
 as different creditors are each pursuing their own rights against this property 
 in different courts, it is a proper rule, to prcA'ent collision of judicial authority, to 
 give precedence to those who first lay their hands on the fund. This priority 
 might be decisive, if both creditors stood in the same relation to this specific 
 property. But the reason no longer holds when the claim of one of the parties 
 IS in its nature a privileged claim. The very essence of a privilege is to give the 
 creditor a preference over the general creditors of the debtor ; and if such be the 
 claim of the seamen, the attachment only created a lien on the property subject 
 to such prior incumbrance. It can only extend to the whole right of the owner, 
 and that was to hold the property after discharging the lien." And in Certain 
 Logs of Mahogany, 2 Sumner, 589, which was a libel in rem for freight, it was 
 objected that a replevin suit was then pending in the State court to determine the 
 right of property to the cargo libelled. Slory, J., said : " A suit in a State court 
 by replevin, or by an attachment under process, of the property, can never be 
 admitted to supersede the right of a court of admiralty to proceed by a suit in 
 rem to enforce a right against that property, to whomsoever it may belong. The 
 admiralty suit does not attempt to enter into any conflict with the State court, as 
 to the just operation of its own process; but it merely asserts a paramount right 
 against all persons whatever, whether claiming above or under that process. No 
 doubt can exist that a ship may be seized under admiralty process for a forfeit- 
 ure, notwithstanding a prior replevin or attachment of the ship then pending. 
 The same thing is true as to the lien on a ship for seamen's wages or a bottomry 
 bond." See also Riggs v. The Sch. John Richards, 1 Newb. Adm. 73. 
 
 ' In Taylor v. Carryl, 24 Penn. State, 259, the vessel arrived in Philadelphia 
 in October, 1847. She was attached in the State court for a debt due from her own- 
 ers in November of that year. A libel for wages was filed in the admiralty court, 
 January 21, 1848. A sale was ordered by that court on the 4th of February, and 
 the vessel was sold by the marshal on the 15th of the same month. Wall v. The 
 Royal Saxon, 2 Am. Law Reg. 324. In the State court a sale was ordered on the 
 29th of January, and the vessel was sold on the 9th of February. The present 
 suit was an action of replevin to determine the title as between the purchasers at 
 the two sales, and the court held that the district court had no power over the 
 property while it was in the possession of the State court. The charge of Wood- 
 ward, J., at Nisi Prius may be found in 2 Am. Law Reg. 333. While the re- 
 plevin suit was pending, the purchaser of the vessel under the sale by the marshal
 
 CH. II.] DISTRICT COURTS OF THE UNITED STATES. 199 
 
 may waive his right of possession, and if the marshal can obtain 
 possession of the vessel with his consent, or with the consent of his 
 depnty, the right of the sheriff is at an end.^ A question of a 
 similar nature may arise, when the freight of a vessel is liable, 
 and a monition issues from the admiralty ordering the person in 
 possession of it to pay it into court. Is it any defence for the per- 
 
 instituted a petitory suit in the district court, and the vessel was ordered to be 
 . delivered to him. On appeal to the circuit court, Mr. Justice G'ner, though he 
 was clearly of the opinion that the petitioner had a good title, yet held that the 
 replevin suit pending in the State court was a good bar to further proceedings in 
 admiralty. Taylor v. The Royal Saxon, 1 Wallace, C. C. 311. The suit in the 
 State court was then brought before the Supreme Court of the United States by 
 a writ of error, and the decision of the State court was held to be correct. 20 
 How. 583, Taney, C. J., Wayjie, J., Grier, J., and Clifford^ J., dissenting. We 
 would call the attention of the profession to the opinion of the learned chief jus- 
 tice in this case, as one which has been seldom equalled, in a clear and forcible 
 exposition of the rights and powers of the courts of admiralty in this country. 
 After remarking that the power which had created the court could give the right 
 of trial by jury, if it saw fit, the learned judge continued : " I can therefore see 
 no ground for jealousy or enmity to the admiralty jurisdiction. It has in it no one 
 quality inconsistent with or unfavorable to free institutions. The simplicity and 
 celerity of its proceedings make a jurisdiction of that kind a necessity in every 
 just and enlightened commercial nation. The delays unavoidably incident to a 
 court of common law, from its rules and modes of proceedings, are equivalent to 
 a denial of justice, where the rights of seamen or maritime contracts or torts are 
 concerned, and seafaring men the witnesses to prove them ; and the public confi- 
 dence is conclusively proved by the well-known fact, that, in the. great majority of 
 cases, where there is a choice of jurisdictions, the party seeks his remedy in the 
 court of admiralty in preference to a court of common law of the State, however 
 eminent and distinguished the State tribunals may be." See also Freeman v. 
 Howe, 24 How. 450 ; Buck v. Colbath, 3 Wallace, 342 ; The Circassian, 1 Bened. 
 Adm. 128. In The Gazelle, 1 Sprague, 378, the court refused to issue a warrant 
 of arrest while the vessel was in the custody of the State court, but as soon aa 
 she was sold by the sheriff granted the requisite permission, holding that the sale 
 did not divest nor impair the Hen of the seamen for wages. 
 
 1 The Julia Ann, 1 Sprague, 382. The vessel, in this case, was In the custody 
 of the sheriff, and in possession of a keeper appointed by the sheriff, and the 
 party in possession had written authority from the sheriff to hold the vessel. This 
 fact was not disclosed to the marshal, but the keeper consented to hold the vessel 
 under the marshal, and did so until the sale, and received his fees therefor. 
 When the sheriff was informed that the keeper was holding under the marshal, 
 he did not oust him, but said he knew nothing about the marshal, and told the 
 keeper to keep on, and no action was taken in the court till after the sale. Under 
 these circumstances the court held that the purchaser at the sale by the marshal 
 was entitled to possession.
 
 200 LAW AND JURISDICTION OF ADMIRALTY. . [BOOK II. 
 
 son to say, that prior to the issuing of the monition he was sum- 
 moned by a trustee or garnishee process, in a State court, and the 
 freight attached ? It has been held that this is no defence, and 
 that the freight must be paid into the admiralty court. ^ 
 
 If a person who has a claim against a vessel, as, for example, a 
 material man,^ or a seaman,^ brings a suit in a common-law court 
 and attaches the vessel, he may discontinue such suit, and sue in 
 rem in admiralty, as the lien, not depending on possession, is not 
 lost by such an attachment. 
 
 We have no doubt that a suit cannot be brought against a vessel 
 owned by government ; ^ nor can a private claim be the subject of 
 •a suit on the instance side of the court, after a vessel has been 
 captured jure helli^ although the libel is filed before proceedings 
 are begun in the prize court. ^ 
 
 At common law, if the property of one person is attached as the 
 property of another, the former may assert his right of property 
 by a writ of replevin, and it has been held, that he may do the 
 same in admiralty by a petitory suit." In England, a sbip was 
 
 > The Sailor Prince, U. S. D. C. New York, Blatchford, J., June, 1867. This 
 ■was a libel for wages by the seamen against the ship and freight. A monition 
 issued against the consignees of the cargo, and they replied that the owners of 
 the vessel had been previously sued in the supreme court of New York, and the 
 freight had been attached in their hands. It did not appear that the State officer 
 had the actual possession of the freight money, but the court put the case on the 
 broad ground that Taylor v. Carryl did not apply, and that the lien of the sea- 
 men must be enforced by the admiralty court in preference to the claim of a 
 general creditor, and that if the proceedings in the State court should be a bar, 
 the seamen would be without remedy, as the money could not be followed, where- 
 as, in the ease of the attachment of a vessel, the only injury resulting from the 
 proceedings in the State court would be the delay, as the vessel could be seized 
 for the lien of the seamen after her sale by the State officer. A similar decision 
 was made by Judge Lou-ell, in the case of The Caroline, U. S, D. C. Mass., 1867. 
 
 ^ The Paul Boggs, 1 Sprague, 369. 
 
 " The Sch. Highlander, 1 Sprague, 510. 
 
 * See Briggs v. Light-Boats, 11 Allen, 157. 
 
 ^ The question whether the property belongs to the government should not be 
 decided before an appearance, and on motion. The Othello, 1 Bened. Adra. 43- 
 
 « The Nassau, 4 Wallace, 634. 
 
 ' The Taranto, 1 Sprague, 170. While acquiescing in the justice of this de- 
 cision, we do not see how the marshal could take the vessel under the decision in 
 Taylor v. Carryl, supra. And this case is a good example of the power of a per- 
 son to effectually deprive the court of admii'alty of its entire jurisdiction, under
 
 CH. II.] DISTRICT COURTS OF THE UNITED STATES. 201 
 
 seized bj a sheriff upon process from the court of King's Bench ; 
 afterwards, admiralty process issued in a suit for wages, under 
 which she was sold, and the claim of the sheriff to the surplus pro- 
 ceeds was allowed as against the former owner of the ship, on the 
 ground that admiralty would take a judgment on record as a debt, 
 although it would not inquire the claims of general creditors.^ 
 
 The legislature of a State can neither amend the judgment nor 
 determine the jurisdiction of any of the courts of the United 
 States.2 
 
 The judge of the district court may hold court at any place 
 within the district that "the nature of the business and his 
 discretion shall direct " ; ^ and orders, generally, may be at cham- 
 bers as well as in open court. It is said that the various ex parte 
 orders which admiralty proceedings sometimes require quite sud- 
 denly, make this rule necessary.* It has, liowever, been seriously 
 doubted by Mr. Justice Story whether the district court can re- 
 ceive stipulations in vacation and deliver property thereon, before 
 
 that decision. In the case of The Taranto. a company of miners -n-ere about to 
 sail for California in a vessel which they had purchased, but which stood in the 
 name of their agent, who refused to give up the vessel. The vessel was also under 
 attachment in the State court, in a suit against the agent for supplies furnished. 
 The court held that as the property did not belong to the agent the attachment 
 was not valid, and decreed possession of the vessel to the libellants. As to the 
 stores not paid for, it was decreed that the libellants could not be entitled to 
 them. The opinion in this case was rendered in less than two weeks after the 
 libel was filed, whereas if the owners had resorted to a writ of replevin, supposing 
 they had been able to give bonds to double the value of the vessel, the case could 
 not have been decided under a year, and probably would have been in court 
 much longer, yet, if we understand the effect of the decision in Taylor r. Carryl, 
 the common-law remedy was the only one left to the owners, although as their 
 whole property was invested in the vessel, it might have been impossible for them 
 to have availed themselves of it. 
 
 1 The Flora, 1 Hagg. Adm. 298. The creditor, in this case, who seized the 
 vessel under the authority of the King's Bench, consented to the sale, and claimed 
 merely to come in for the surplus after paying the sum due the seamen. '• But," 
 says Ta>iej/, C. J., in Taylor v. Carryl, 20 How. 583, 603, " if the marshal could 
 not lawfully arrest while she was in the possession of the sheriff, he could not law- 
 fuUv sell under that arrest, nor while the sheriff still held possession, and no con- 
 sent of parties would make it a valid marshal's sale, and give a good title to the 
 purchaser, if the sale was without authority of law." 
 
 - United States v. Peters. 5 Cranch, 115. 
 
 " Act of 1789, ch. 20, § 3. 1 U S. Stats, at Large, 73. 
 
 * United States i\ Sch. Little Charles, 1 Brock. C C. 380.
 
 202 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 the return term of the process. ^ We believe, however, that this is 
 done in practice, but we think not against the will or without the 
 consent of the libellant. 
 
 If a suit is brought in the district court, and it appears that the 
 judge " is in anyways concerned in interest, or has been of counsel 
 for either party, or is so related to, or connected with, either party, 
 as to render it improper for him, in his opinion, to sit on the trial 
 of such suit or action, it shall be the duty of such judge, on appli- 
 cation of either party, to cause the fact to be entered on the records 
 of the court ; and also an order that an authenticated copy thereof, 
 with all the proceedings in such suit or action, shall be forthwith 
 certified to the next circuit court of the district ; and if there be 
 no circuit court in such district, to the nest circuit court in the 
 State ; and if there be no circuit court in such State, to the most 
 convenient circuit court in an adjoining State ; which circuit court 
 shall, upon such record being filed with the clerk thereof, take 
 cognizance thereof, in the like manner as if such suit or action 
 had been originally commenced in that court, and shall proceed to 
 hear and determine the same accordingly ; and the jurisdiction of 
 such circuit court shall extend to all such cases so removed as 
 were cognizable in the district court from which the same was 
 removed." ^ 
 
 We have spoken hitherto only of the courts which have ad- 
 miralty jurisdiction within the United States ; and it is certain 
 that no courts can liave this jurisdiction in the States but those 
 which are established by Congress in pursuance of and in con- 
 formity with the third article of the Constitution of the United 
 States.^ But it is held that this limitation does not extend in this 
 respect, at least, to the Territories ; because Congress legislates 
 for them with the combined powers of the State and general gov- 
 ernments. An act of a Territory created a court with authority 
 to take jurisdiction of a case of salvage ; and in such a case which 
 
 * In Ex parte Robbins, 2 Gallis. 320, 322, Story, J., said : " Admitting that the 
 district court can deliver property on bail in vacation, and before the return term 
 of the process (which admits of very serious doubts), no delivery on bail could 
 properly be made without notice to the district-attorney (the United States being 
 interested in the suit), and a hearing before the district judge." See also Brig 
 Alligator, 1 Gallis. 145, 148. 
 
 2 Act of 1821, c. 51, 3 U. S. Stats, at Large, 643. 
 
 * See ante., p. 154.
 
 CH. II ] DISTRICT COURTS OF THE UNITED STATES. 203 
 
 came before it, a decree of sale for salvage of a cargo which had 
 been stranded and brought within its Territorial limits, was made 
 by the Territorial court, and sustained by the Supreme Court, and 
 a sale made under it was held to be valid and to have changed the 
 property.^ 
 
 ' American Ins. Co. ik 356 Bales of Cotton, 1 Pet. 511, was as follows : The in- 
 surance company libelled 356 bales of cotton, in the South Carolina district, de- 
 manding restitution thereof, on the ground that the property had been abandoned 
 to them by the owners. Canter, the claimant, claimed on the ground that they 
 had been sold to him, by virtue of an order of a Territorial court of Florida, con- 
 sisting of a notary and five jurors, to pay salvage assessed by them at 76 per cent. 
 The district judge pronounced this decree a nullity, and ordered the restoration 
 of the cotton, subject to 50 per cent salvage. The circuit court decreed the 
 whole cotton to the claimant, on the ground that the proceedings of the court at 
 Key West were legal, and transferred the property ; and this decree was affirmed 
 by the Supreme Court, Chief Justice Marshall delivering the opinion.
 
 204 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 CHAPTER III. 
 
 OF APPEALS GENERALLY. 
 
 By an appeal, the judgment and decree of the court are 
 suspended ; and the whole cause, both as to its law and its 
 fact, is to be heard de novo in the appellate court. ^ Nor is the 
 cause a res adjudicata, until the final sentence of the appellate 
 court. Any statute, therefore, which is passed before such final 
 decree, is to be considered, and if the case before the court 
 arose on a statute which is repealed ^ or expires by its own lim- 
 
 ^ Anonymous, 1 Gallis. 22. It was held in this case that the circuit court 
 had authority to allow amendments in revenue cases or proceedings in rem 
 brought by appeal from the district court. In Gloucester Ins. Co. v. Younger, 2 
 Curtis, C. C. 322, 335, the case came before the circuit court under an agreement 
 that the decision of the district judge should be final on all questions of fact, and 
 that no evidence should be introduced in the appellate court except the opinion 
 of the district judge, or a statement of facts made thereon ; but that all questions 
 of law from facts proved, were to be open on appeal. Mr. Justice Curtis disap- 
 proved of this course and offered to discharge the agreement, but as neither party 
 desired it, he determined the case on the agreement, although he stated that he 
 had encountered much embarrassment in doing so, and should execute a similar 
 agreement afterwards with much reluctance, if at all. 
 
 " An interesting case which finally turned on this point occurred in Louisiana. 
 The Act of Congress of March 2, 1807, 2 U. S. Stats, at Large, 428, passed for 
 the prevention of the slave-trade, directed that any vessel hovering about and 
 intending to land negroes on the coast of the United States, should be forfeited, 
 and the negroes delivered to any persons appointed by the several States for the 
 purpose of disposing of them. The Josefa Segunda was libelled under this act, 
 and the cargo of negroes delivered to the sheriff of Louisiana, in accordance with 
 a statute of that State, which was passed in pursuance of the act of Congress, and 
 which also directed that one half the proceeds of the sale of such negroes should 
 be delivered to the treasurer of the Charity Hospital at New Orleans, and one 
 half to the commanding officer of the capturing vessel, meaning the public vessel 
 contemplated by the act of Congress. In 1820, the final decree of condemnation 
 was pronounced in the Supreme Court. 5 Wheat. 338. In the mean time, the 
 sheriff, by the consent of all parties, had sold the negroes and lodged tlie proceeds 
 in the United States Bank, subject to the order of the court below. To the pro- 
 ceeds of this sale there were seven claimants, none of whom fell within the 
 description, in the statute of Louisiana, of the individuals who should be entitled
 
 CH. III.] APPEALS GENERALLY. 205 
 
 itatioii ^ before the final decree is passed, the case is at an end. 
 But if the property does not follow the case, the court in whose 
 
 to them. Their clahns were, therefore, rejected by the Supreme Court, in 1825. 
 10 Wheat. 312. As to the proceeds of the sale of the vessel, the court said, 10 
 Wheat. 331, 332, " Upon the best consideration which we have been able to give 
 the case, we are of opinion that it is a casus omissus, or rather that all the benefi- 
 cial interest vests in the United States The remarks which have already 
 
 been made, dispose of the case as far as i-espects the proceeds of the vessel ; and 
 we think they are decisive as to the claim to the proceeds of the sale of the 
 negroes. The case, as to this matter, is also a castis omissus in the act of Louisi- 
 ana." 
 
 In 1830, the case came up again, nom. United States v. Preston, 3 Pet. 57, on 
 " appeal from so much of the decree of the court below as awarded to the State of 
 Louisiana, the proceeds of the sales of certain slaves." The court said, " that as 
 the final condemnation in this court took place March 13, 1820, and as previous 
 to that time was passed the act of March 3, 1819 (3 U. S. Stats, at Large, 450 and 
 532), by which a new arrangement is made as to the disposal of persons of color, 
 seized and brought in under any of the acts prohibiting the traffic in slaves, the 
 power to deliver them to the order of the States was taken away before the 
 final decree of this court." Then, according to the principle of Yeaton v. United 
 States, 5 Cranch, 281, if they had been specifically before the court at the date of 
 that decree, they must have been delivered, not to the State according to the act 
 of 1807, but to the United States, according to the act of 1819. But they had 
 already been sold, and the court said : " We would not be understood to intimate 
 that the United States are entitled to this money, for they had no power to sell. 
 Nor do we feel bound to remove the difficulties which grow out of this state of 
 things." This was indeed a curious case. The slaves were sold by consent of 
 the parties, before final condemnation of the vessel. The disposal of them was in 
 violation of the law regulating such matters at the time of the decree. The 
 sheriff, therefore, acted wi'ongfully, but was not liable to anybody, as he had only 
 converted forfeited property into another form. But, under the laws relating to 
 the slave-trade, there was no one who could claim this money ; neither the State 
 of Louisiana nor the claimants, for so the court decided ; not the United States, 
 for there is no law by which the United States receives the price of slaves ; not 
 the slaves themselves, of course. The S 65,000 deposited by the sheriff of the 
 parish of New Orleans in the United States Bank lies there yet (or its remains 
 lie there), so far as we know or can infer from the law. 
 
 ^ In Yeaton v. United States, 5 Cranch, 281, Marshall, C. J., said: "In admi- 
 ralty cases, an appeal suspends the sentence altogether, and it is not res adjutlicata 
 until the final sentence of the appellate court is pronounced. The cause in the 
 
 appellate court is to be heard de novo, as if no sentence had been passed 
 
 In prize causes, the jirinciple has never been disputed, and in the instance court, 
 it is stated in 2 Browne's Civil Law, that in cases of appeal it is lawful to allege 
 what has. not before been alleged, and to prove what has not before been proved. 
 Tbe court is, therefore, of opinion that this cause is to be considered as if no sen-
 
 206 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 custody it remains may always make any proper and necessary 
 order respecting it.^ 
 
 Questions have arisen as to the effect of joinder of parties on the 
 right of appeal. The statute defines the amount which gives the 
 right ; and in suits for torts, unless an ad damnum he claimed 
 equal to the amount which gives the right of appeal, that right 
 does not exist. But in admiralty, parties are permitted to join, for 
 convenience and economy, whose rights and interests are so dis- 
 tinct and independent that they could not be joined at common 
 law. And it seems to be now settled that no party can appeal, 
 unless he has, himself, and separately from others, a claim, or 
 unless the opposite party has recovered against him, separately, an 
 amount which, by itself, is equal to that which, by the terms of the 
 statute, gives the right of appeal. Thus, all the crew of a ship 
 may join in libel for wages ; but only he whose claim exceeds fifty 
 dollars, separately considered, can appeal to the circuit court ; and 
 only he whose claim exceeds two thousand dollars can appeal 
 thence to the Supreme Court.^ And where several libels were filed 
 by shippers of cargo to recover for damages done to their goods, 
 and the actions were ordered to be consi)lidated by the court, it 
 was held that the interests of the parties were distinct, and no 
 appeal would lie, except where the separate amount demanded by 
 each libellant exceeded two thousand dollars.^ When, however, 
 many libellants join in one libel, and their interests are joint, 
 although not coequal, then an appeal lies, if the total amount 
 exceed the sum required by the statute, although the amounts 
 which would belong to each one is less.^ If a suit is brought 
 
 tence had been pronounced ; and if no sentence had been pronounced, it has long 
 been settled, on general principles, that after the expiration or repeal of a law no 
 penalty can be enforced nor punishment inflicted for violations of the law com- 
 mitted while it was in force, unless some special provision be made for that pur- 
 pose by statute." See also United States v. Ship Helen, 6 Cranch, 203 ; Schooner 
 Rachel v. United States, 6 Cranch, 329. 
 
 1 The Grotius, 1 Gallis. 503, per Story, J.; The Collector, 6 Wheat. 194. 
 
 2 Oliver v. Alexander, 6 Pet. 143. 
 » Rich V. Lambert, 12 How. 347. 
 
 * Shiehls v. Thomas, 17 How. 3. In this case, the representatives of a person 
 deceased claimed, under a bill in equity, moneys which Shields, the administrator, 
 had converted to his own use. The complainants filed a bill in the Chancery 
 Court of Kentucky, and obtained a decree which exceeded S 2,000, the portion 
 due each complainant being decreed to him separately, and being less than
 
 CH. III.] APPEALS GENERALLY. 207 
 
 against certain goods for freight, and two or more persons appear 
 as claimants and give a joint bond, but each claims different par- 
 cels, and a decree is rendered against each one separately for the 
 freight of the goods claimed by each, the rights of each are distinct 
 and independent, and only those who are obliged to pay more 
 than the sum specified in the statute, exclusive of costs, can 
 appeal. And if the whole of the freight is jointly decreed against 
 
 $ 2,000. A motion was made to dismiss the bill, because " the sum due each com- 
 plainant is severally and specifically decreed to him, and that the amount thus 
 decreed is the sum in controversy between each representative and the appel- 
 lant" (Shields). 
 
 But the court held, " that the matter in controversy in the Kentucky court was 
 the sum due to the representatives of the deceased collectively, and not the par- 
 ticular sum to which each was entitled when the amount was distributed among 
 them, according to the laws of the State. They all claimed under one and the 
 same title. They had a common and undicided interest in the claim, and it was 
 perfectly immaterial to the appellant how it was to be shared among them. He 
 had no controversy with either of them on that point ; and if there was any diffi- 
 culty as to the proportions in which they were to share, the dispute was anioncr 
 themselves and not with him. It Is like a contract with several to pay a sum of 
 money. It may be that the money, when recovered. Is to be divided between 
 them in equal or unequal proportions. Yet, if a controversy arises on the con- 
 tract, and the sum In dispute upon it exceeds two thousand dollars, an appeal 
 would clearly lie to this court, although the Interest of each individual was less 
 than that sum." 
 
 The court commented on the above cases as follows : " The case of Oliver v. 
 Alexander, 6 Pet. 143, was a suit for seamen's wages. And although the crew 
 are allowed by law, for the sake of convenience and to save costs, to join In a suit for 
 wages, yet the right of each seamen is separate and distinct from his associates. His 
 contract Is separate, and his recovery does not depend upon the recovery of others, 
 but rests altogether upon Its own evidence and merits. And he does not recover 
 a portion of the common fund to be distributed among the claimants, but the 
 amount due to himself on his own separate contract. The case of Rich v. Lam- 
 bert, 12 How. 347, was decided on the same ground. The several shippers who 
 owned the goods which had been damaged had no common interest in the goods. 
 The interest of each was separate, and his contract of afireightment was separate. 
 And the libel of each was upon his own contract with the ship-owner, and for his 
 individual and separate property. The cases of Stratton v. Jarvis, 8 Pet. 4, and 
 Spear v. Place, 11 How. 522, were both salvage cases, where the property of each 
 owner Is chargeable with Its own amount of salvage. The salvage service is 
 entire ; but the goods of each owner are liable only for the salvage with which 
 they are charged, and have no common liability for the amounts due from the 
 ship or other portions of the cargo. It Is a separate and distinct controversy 
 between himself and the salvors, and not a common and undivided one, for which 
 the property Is jointly liable."
 
 208 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 the claimants, all should join in an appeal. ^ In respect to salvage 
 claims, it has been decided that an appeal will not lie to the Su- 
 preme Court where the amount of salvage due from any one owner 
 of the property saved is less than two thousand dollars, although 
 tlie whole amount due exceeds that sum. In otlier words, al- 
 though the suit may be in rem against all the property saved, yet 
 the rights and liabilities of each owner are separate and distinct.^ 
 But we should be inclined to hold that the interests of salvors 
 were so far joint that they might all appeal, if their united interest 
 amounted to the requisite sum, provided the amount due from any 
 one owner of the property saved was sufficient.^ 
 
 If, however, the libellants in salvage formed two or more dis- 
 tinct sets or bodies, who performed distinct services and had 
 distinct demands, they would not be regarded, we should presume, 
 in tlie case of appeal, as one, althougli they joined in one libel ; for 
 they ought properly, and perhaps would be required, to file several 
 libels, only tliose joining who rest on a community of service, of 
 merit, and of demand. 
 
 Where several libels are filed for salvage against a vessel, and 
 decrees are entered for all the libellants, and one appeals, his ap- 
 peal may affect collaterally the other decrees, as if, for instance, 
 the vessel of the appellant was entitled to the entire amount of 
 salvage decreed, and not merely one third, as determined by the 
 inferior court.^ 
 
 It is said to be always prudent, if one party appeals, for the 
 other party to appeal also. For if he do not, and it should happen 
 that the appellate court thouglit him entitled to a more favorable 
 
 1 Clifton V. Sheldon, 23 How. 481. 
 
 ^ Stratton v. Jarvis, 8 Pet. 4 ; Spear v. Place, 11 How. 522. 
 
 ^ This precise point has not yet been decided, but it would seem to fall within 
 the principle adopted in the case of Shields v. Thomas, 1 7 How. 3, cited supra. 
 See Marvin on Wreck and Salvage, § 253, 254, where the very learned author 
 comes to the conclusion, that although the rights and interest of the salvors are 
 separate and distinct, because "payment to one, or a release or forfeiture of the 
 interest of one, being no bar to the recovery of the others," yet that they should 
 be considered " as possessing a ^wasi joint interest for the purposes of appeals, and 
 that they may appeal whenever their united demand against any single claimant 
 equals the sum required by law to authorize an appeal." 
 
 * The Island City, 1 Black, 121. This was so stated by the court, but, as the 
 appeal was dismissed, the manner in which the decree would be aflected does not 
 appear.
 
 CH. III.] APPEALS GENERALLY. 209 
 
 judgment, he would not have it without an appeal.^ But what if 
 he could not appeal ? If a libellant in the district court for assault 
 and battery lays his ad damnum at one hundred dollars and re- 
 covers fifty, lie can appeal and the defendant cannot.^ If he 
 
 ^ Stratton v. Jar vis, 8 Pet. 4 ; Houseman r. Sch. North Carolina, 15 Pet. 40, 
 50; Canter v. American Ins. Co. 3 Pet. 307, 318; Airey v. Merrill, 2 Curtis, C. 
 C. 8 ; Allen v. Hitch, id. 147. In all these cases, with the exception of that of 
 Canter v. American Ins. Co., the libellant did not appeal, and it was held that he 
 was limited to the amount which he had recovered in the inferior court. In 
 Canter v. American Ins. Co., the court had decreed restitution of the property to 
 the claimant, but nothing was said as to damages. The libellant only appealed, 
 and it was held that the claimant could not demand damages in the appellate 
 court. In Allen i'. Hitch, Curtis, J., speaking of these cases, said : " These cases 
 show that the appellate court will neither increase the amount awarded below, nor 
 consider a subject of claim there decreed upon and denied, unless the party who 
 desires a reversal of the decree take an appeal." In The Water Witch, 1 Black, 
 494, two consignees libelled the vessel by separate libels, for damages done to the 
 cargo, and the owner of the vessel libelled the cargo for freight. The district 
 court found that the amount of damages exceeded the freight, and made a 
 decree for the consignees for the amount of damage less the freight. From this 
 decree the claimant of the vessel appealed, but the consignees did not. Held 
 that the circuit court had the power to alter the decree, giving the consignees 
 the amount of the damage done and the claimant the freight due. 
 
 '^ Shirley v. Titus, 1 Sumner, 447. The rule being in all cases of this nature 
 that the " matter in disjiute " within the meaning of the statute is the amount 
 claimed by the libellant, and not the amount actually recovered, but if the libel- 
 lant recovers less and does not appeal, then the " matter in dispute " is the 
 amount actually recovered, and the respondent has no right of appeal unless this 
 amount is greater than the sum specified in the statute. Gordon v. Ogden, 3 Pet. 
 33 ; Smith v. Honey, id. 469 ; Cooke v. Woodrow, 5 Cranch, 13 ; Wise v. Colum- 
 bian Turnpike Co. 7 Cranch, 276. But see Wilson v. Daniel, 3 Dall. 401 ; Greigg 
 V. Reade, Crabbe, 64. In Walker v. United States, 4 Wallace, 163, Chief Justice 
 Chase said : " It has been a good deal controverted whether the sum or value in 
 controversy is to be determined by reference to the amount claimed, or the • 
 amount of the judgment, or the amount in dispute in this coui-t. It has been 
 long settled, however, that when the judgment is for the defendant or for the 
 plaintiff, and for less than two thousand dollars, and the plaintiff sues out the writ 
 of error, this court has jurisdiction if the damages claimed In the declaration ex- 
 ceed that sum ; but that if judgment is for plaintiff and not more than two thou- 
 sand dollars, and the defendant prosecutes in error, this court has not jurisdiction, 
 for the amount in controversy, as to the defendant, is fixed by the judgment." 
 See also Knapp v. Banks, 2 How. 73. In Lee v. Watson, 1 Wallace, 337, the 
 writ and original declaration showed that the amount in controversy did not ex- 
 ceed one thousand dollars ; the evidence offered on the trial by the plaintiff 
 showed that it did not exceed seven hundred doUai-s. In the court below, leave 
 VOL. II. 14
 
 210 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 appeals, and upon the new trial a full defence, or circumstances 
 greatly lessening the libellant's claim were put in proof, we should 
 be unwilling to say that the court could not regard them. We 
 know of no authority for this, and should infer from the general 
 principles of admiralty, that such a result would follow only where 
 the party who did not appeal might have done so had he thought 
 proper. Indeed, we should ourselves incline to the view, that 
 if either party appeals, the rule that the appellate court tries the 
 whole case, de novo, would cause the same justice to be done to both 
 parties, as if both could have appealed, and both had appealed. 
 
 If the libel be for a maritime trespass, or assault and battery 
 against two or more, and there is a several decree, each defendant 
 has the same rights of appeal that he would have if there were 
 separate libels ; and if the decree be joint, the rule is the same if 
 the defendants sever in their pleas or answers, or, if their answer, 
 though joint, be a denial in the nature of a plea of the general 
 issue. But if they join in a justification, it is said they must join 
 in an appeal from a joint decree.^ 
 
 was given to amend the declaration by striking out the amount of damages and 
 inserting two thousand one hundred dollars. The Supreme Court held that it 
 had no jurisdiction, and said that reference must be had both to the debt claimed, 
 and to the damages alleged, or the prayer for judgment. See Ryan v. Bindley, 
 1 Wallace, 66. 
 
 * In Thomas v. Lane, 2 Sumner, 1, this subject is very fully discussed. It wag 
 a libel brought by a seaman against the master and the mate. The respondents 
 made a joint answer, alleging also some matters in individual justification of the 
 assault. The district court decreed one hundred dollars, in which decree Joi'dan 
 the mate acquiesced, but Thomas the master did not. Story, J., said : — 
 
 " But the question here is not so much as to the effect of a joint justification or 
 defence, as it is as to the several right of appeal of the parties charged with a tort 
 in a joint libel. It seems admitted by the argument, that if the parties had sev- 
 ered in their defence (as they clearly might have done), that either of them 
 might have sustained a several appeal. If that be so, it must be upon the ground 
 that a tort charged as joint may be established by proof of its being committed 
 by either party ; and, in such case, that there may be a several decree of guilt as 
 to one, and acquittal as to another. My opinion is, that there is no difference as 
 to the right of appeal, whether the respondents sever or join in their answer or 
 pleadings, if the defence is several in its nature, as a general denial of the matters 
 alleged, in the nature of the general issue ; for then there may be a several decree 
 of guilt as to one, and of acquittal as to the other. It may be otherwise where 
 there is a joint justification by the respondents ; for then it is difficult to perceive 
 how either can separately contest its proof or sufficiency. The more pressing diffi"
 
 CH. III.] APPEALS GENERALLY. 211 
 
 The practice of the courts is settled, where in prize cases an 
 appeal is made and not prosecuted ; and doubtless the same rules 
 would apply in other cases. That is, the appellate court may pro- 
 nounce the appeal to be deserted, and may remit the cause to the 
 court below for final proceedings, or may permit the party who 
 has obtained the decree in the court below, to try or argue the 
 case ex pa7-te, and then affirm the decree if they see cause. ^ And 
 
 culty is, when there is a joint decree against all the defendants for damages in tort, 
 ■whether one can appeal alone. There is a distinction well known at the common 
 law, between suits founded on the joint contract of the parties defendant, and suits 
 founded upon their tort. In the former, the contract must be proved to be joint, 
 as it is charged ; in the latter, it need not. Upon a joint justification in tort, a 
 writ of error lies only by all the parties to the justification ; for all are aggrieved 
 if any are. But if they plead severally, and some are acquitted and the others 
 are found guilty, the latter may maintain a writ of error alone, for they alone are 
 
 aggrieved In short, the appeal must be joint when the interest is joint ; 
 
 and several where there are distinct and separate interests, represented by inde- 
 pendent parties in the same suit. 
 
 " In cases of tort, it seems to me that the same rule must by analogy prevail, 
 where the defendants have not a joint interest, and do not, by their pleading, as- 
 sume a joint defence. In personal trespasses like the present, though the tort 
 should be jointly charged, it is also several in its nature, and one defendant may 
 be found guilty, and the other acquitted. It would seem strange, if the decree of 
 the district court should pronounce for a joint trespass and give damages accord- 
 ingly, that one party should not be entitled to an appeal unless the other would 
 join in it ; that one party should not be allowed to establish his innocence upon 
 the appeal, because the other had, by his submission to the decree, admitted his 
 own guilt. Each defendant, in such a case, has a distinct and several interest in 
 the suit. He may answer severally, and a final decree may be entered in his 
 favor. And if he denies the whole charge jointly with the other defendant, by a 
 general answer in the nature of the general issue, he is not thereby deprived of 
 
 this right to a separate acquittal, if the evidence warrants it However, if 
 
 the decree were for joint damages against both defendants, I do not well see how 
 the libellant could maintain a separate appeal against one, for that would be to 
 claim several damages against each. But it would be different as to the defend- 
 ants ; for the charge being in its nature several, as well as joint, one might be ag- 
 grieved by the decree, when the other was not, and, therefore, might be entitled 
 
 to a separate appeal My opinion is, that, in this case, a several appeal 
 
 well lies by Thomas from the decree for joint damages, upon the ground that the 
 asserted trespass is several as well as joint ; and that Thomas has a distinct and 
 independent interest and responsibility in the suit, unaffected by the decision as 
 to Jordan." 
 
 ' The Privateer Montgomery v. Sch. Betsey, 1 Gallis. 416. See The Elizabeth, 
 1 Hagg. Adm. 226 ; The San Juan Nepomuceno, id. 265, 267.
 
 212 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 the appellate court may either tax the costs, or direct this to be 
 done in the court below. ^ 
 
 Whenever an appeal case is heard and decided, and a mandate 
 goes down to the court below to carry the decree into effect, there 
 may be an appeal from that court on the execution of that mandate ; 
 because it is necessary that the appellate court should have the 
 power of securing the due execution of its decree.^ But on 
 such appeal, nothing prior to the mandate comes before the appel- 
 late court as a question by itself. And, therefore, after a case is 
 sent back to the circuit court, the objection cannot be taken on a 
 second appeal that the court had no jurisdiction to entertain the 
 appeal in the first instance from the circuit court, on the ground 
 that the decree in that court was not a final one.'^ But all the 
 prior proceedings, documents, and evidence, are in the hands of 
 the appellate court, for the purpose of deciding accurately any 
 questions which may arise subsequently to the mandate.* If there 
 
 ^ The Privateer Montgomery v. Sch. Betsey, 1 Gallis. 416. 
 
 ' Himely v. Eose, 5 Cranch, 313 ; Boyce v. Grundy, 9 Pet. 275. In Sibbald 
 V. The United States, 12 Pet. 488, 492, the court said : " The inferior court is 
 bound by the decree as the law of the case, and must carry it into execution, ac- 
 cording to the mandate. They cannot vary it, or examine it for any other pur- 
 pose than execution, or give any other or further relief; or review it upon any 
 matter decided on appeal for error apparent ; or intermeddle with it, further than 
 
 to settle so much as has been remanded If the special mandate is not 
 
 obeyed or executed, then the general power given to ' all the courts of the United 
 States to issue any writs which are necessary for the exercise of their respective 
 jurisdictions, and agreeable to the principles and usages of law,' by the 14th 
 section of the judiciary act, fairly arises, and a mandamus, or other appropriate 
 writ will go." In United States v. Fremont, 18 How. 30, an appeal was dismissed 
 on the ground that it was not entered in the Supreme Court in time, and also on 
 the ground that as the inferior court having taken no action in the case, except 
 to enter the mandate on its records, there was nothing to appeal from. In 
 Ex jmrie Dubuque K 1 Wallace, 69, it was held that the inferior court had no 
 authority but to obey the mandate, and that it could not order a new trial, and 
 that mandamus would lie from the appellate court. See Milwaukie R. v. Soutter, 
 2 Wallace, 510. 
 
 ' Washington Bridge Co. v. Stewart, 3 How. 413 ; Whyte v. Gibbes, 20 How. 
 541. 
 
 * The Santa Maria, 10 W^heat. 431. A decree for general restitution of prop- 
 erty had been made in this case. It appeared on the face of the proceedings 
 that the property had been appraised at its value, including the duties to the 
 United States by the claimant, and a stipulation for the amount given. It was
 
 CH. III.] APPEALS GENERALLY. 213 
 
 be a general decree of restitution in the Supreme Court of the 
 United States, no party can set up new claims or new liens in the 
 court below, even if they would have been allowed had they been 
 asserted before the original decree.^ So if interest be not men- 
 tioned in the decree, none will be allowed.^ 
 
 If a bond be given in the district court conditional to pay or do 
 a certain thing in case of condemnation in that court, and there be 
 an appeal to the circuit court and condemnation there, it has the 
 same effect to forfeit the bond.^ 
 
 An appeal, as has been already stated, takes up the whole case, 
 and it will be heard and decided by the appellate court on its 
 merits. But it has been said that the appellate court is very un- 
 willing to vary the decree of the lower court, in cases of salvage, 
 when the question is merely one of amount or proportion ; as it 
 is deemed especially important that cases of this kind should be 
 finally disposed of without delay, if it can be avoided.* Yet it is 
 
 held tliat the decree awarded only the value of the property to the libellaut, and 
 that the claimant was entitled to deduct the duties. 
 
 1 The Santa Maria, 10 Wheat. 431. 
 
 - Hiiuely v. Rose, 5 Cranch, 313. The decree of the Supreme Court in this case 
 said nothing about interest. The property in dispute had been sold, and the 
 court said: " If this money remains in possession of the court, it carries no interest ; 
 if it be in the hands of an individual, it may bear interest, or otherwise, as the 
 court shall direct." See also The Santa Maria, 10 Wheat. 431 ; Boyce v. Grundy, 
 9 Pet. 275 ; Hemmenway v. Fisher, 20 How. 255 ; The Ann Caroline, 2 Wallace, 
 538, 550. 
 
 ^ United States v. Four Part Pieces of Woollen Cloth, 1 Paine, C. C. 435. 
 See also United States v. Schooner Little Charles, 1 Brock. C. C. 380. 
 
 * Tyson v. Pryor, 1 Gallis. 133 ; The Sybil, 4 Wheat. 98. In Hobart v. Dro- 
 gan, 10 Pet. 108, 119, Story, J., said : " This court is not in the habit of revising" 
 decrees of the court below " as to the amount of the salvage, unless upon some 
 clear and palpable mistake or gross over-allowance of the court below. It is 
 equally against sound policy and public convenience to encourage appeals of this 
 sort in matters of discretion, unless there has been some violation of the just prin- 
 ciples which ought to regulate the subject." In Walsh v. Rogers, 13 How. 284, 
 which was a case of collision, Grier, J., said: "In such cases the oral examina- 
 tion of witnesses before the court, with a stringent cross-examination by skilful 
 counsel, is almost the only method of eliciting truth from such sources. This may 
 be done in the district court, and sometimes, possibly, on appeal to the circuit court. 
 But such a course of sifting out the truth in doubtful cases cannot be pursued 
 here. We are disposed, therefore, to require that the appellant should be held to 
 make out a pretty clear case of mistake in the court below, before he should 
 expect a reversal of their judgment. Raising a doubt on contested facts, is not
 
 214 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 obvious that where a party has a right of appeal given him by law, 
 " he has a right to demand the conscientious judgment of the ap- 
 pellate court on every question arising in the cause," and so it was 
 once held.^ Later decisions have, however, practically made it 
 useless to appeal on questions of fact to the Supreme Court of the 
 United States, when both the district and circuit courts have 
 agreed.^ And on appeals from the district court to the circuit 
 
 sufficient for the action of this court. An appeal should not be a mere specula- 
 tion on chances." See also The Cuba, Lush. Adm. 14. In The Constitution, 
 Brow. & L. Adm. 324, the Privy Council said : " We must either affirm or alter a 
 sentence on appeal, and those who call upon us to alter it, must impress us with 
 a reasonable conviction that it is wrong." 
 
 ^ Post V. Jones, 19 How. 150, 160. See also The Thetis, 3 Hagg. Adm. 14, 2 
 Knapp, 390 ; The Messenger, Swabey, Adm. 191. 
 
 ^ In Morewood v. Enequist, 23 How. 491, 495, Grier, J., said : " We have fre- 
 quently said that appellants should not expect this court to reverse a decree of the 
 circuit court merely upon a doubt created by conflicting testimony." In The Mar- 
 cellus, 1 Black, 414, 41 7, the same learned judge said : " In this, as in all other cases 
 of the kind, there is great discrepancy and conflict in the testimony of the wit- 
 nesses, as to every averment in the pleadings. We have had occasion to remark 
 more than once, that when both courts below have concurred in the decision of 
 questions of fact under such circumstances, parties ought not to expect this court 
 to reverse such a decree, merely by raising a doubt founded on the number and 
 credibility of witnesses. The appellant in such case has all presumptions against 
 him, and the burden of proof cast on him to prove affirmatively some mistake 
 made by the judge below, in the law or in the evidence. It will not do to show 
 that on one theory, supported by some witnesses, a different decree might have 
 been rendered, provided there be sufficient evidence to be found on the record to 
 establish the one that was rendered." In The Water Witch, 1 Black, 494, 500, 
 the same learned judge said : " The weight of the testimony, as decided by the 
 judges of both courts, inclined in favor of the libellant, and we see no reason to 
 differ from them. The weight of testimony is not always with numbers, and this 
 court should not have their time spent in hearing arguments whether the eleven 
 deponents on one side ought to be believed rather than ten on the other. In such 
 cases, the concurrent finding of two courts ought to satisfy the losing party." See 
 also Newell v. Norton, 3 Wallace, 257, 268; The Hypodame, 6 id. 223. So in 
 Virden v. The Brig Caroline, U. S. C. C. Del., 1857, 6 Am. Law Reg. 222, 228, 
 Taney, C. J., stated the law as follows : " It is, therefore, the practice of appel- 
 late courts, where its opinion approximates to the one entertained by the court 
 below, not to disturb its judgment, although it may not fully concur in the propri- 
 ety of the sum awarded. But where it is otherwise, it is undoubtedly the duty of 
 the appellate tribunal to decide the case upon its own judgment as to the right and 
 just claims of the parties." In The Clarisse, Swabey, Adm. 129, 134, a case of sal- 
 vage, the Privy Council said : " It is a settled rule, and one of great utility, par- 
 ticularly with reference to cases of this description, that the difference ought to be
 
 CH. III.] APPEALS GENERALLY. 215 
 
 court, it has been held that where the evidence is nicely balanced 
 and the case depends altogether upon the credibility of witnesses, 
 the circuit court is not inclined to interfere with the decision 
 below. ^ 
 
 Appeals must be from final decrees. ^ Some controversy has 
 arisen as to what is a final decree, but the following points may 
 now be considered as settled. A decree dismissing a libel in 
 rem for want of prosecution is not a final decree.^ If the court 
 decree that the libellant is entitled to recover damages, and the 
 cause is sent to an assessor to determine the amount, this decree 
 is not final ; * and, generally, if a case is sent to a master, the 
 decree is not final.^ And if the report of the master determining 
 the amount is accepted by the court, and a decree passed that 
 such an amount is due, but no order is made for the payment of 
 the money because there are other cases against the vessel, and the 
 amount in court may not be large enough to pay all, tliere is no 
 final decree.^ 
 
 So if the property libelled is ordered to be restored with costs 
 and damages, no appeal lies until the amount of the damages is 
 
 very considerable to induce a court of appeal to interfere upon a question of mere 
 discretion." See also The Cuba, Lush. Adm. 14. 
 
 1 The Sampson, 4 Blatchf. C. C. 28 ; The Florida, id. 470. 
 
 = See Canter v. American Ins. Co. 3 Pet. 307, 317. Mr. Justice Story in this 
 case said : " It is of great importance to the due administration of justice, and is 
 in furtherance of the manifest intention of the legislature, in giving appellate juris- 
 diction to this court upon final decrees only, that causes should not come up here 
 in fragments, upon successive appeals." 
 
 ' The Merchant, 4 Blatchf. C. C. 105. 
 
 * Chace v. Vasquez, 11 Wheat. 429. In Mordecai v. Lindsay, 19 How. 199, the 
 case was decided in favor of the libellants in the district court, and then ordered 
 to be sent to an assessor to report the amount. Without further proceedings being 
 had, the respondents appealed to the circuit court, where the case was beard on 
 its merits, and the decree of the district court reversed. The libellants then 
 appealed to the Supreme Court, where the counsel moved that they might be per- 
 mitted to amend the record by consent, by inserting in it what might be agreed 
 upon by them as a final decree. But the court held, that as the case never came 
 properly before the circuit court, it could not come before the Supreme Court, and 
 the case was sent back to the circuit court that the appeal might be dismissed by 
 it for want of jurisdiction, leaving the parties to obtain the final decree in the 
 district court. 
 
 ' Beebe v. Russell, 19 How. 283 ; Farrelly v. Woodfolk, 19 How. 288 ; Humis- 
 ton V. Stainthorp, 2 Wallace, 106. 
 
 ' Montgomeiy v. Anderson, 21 How. 386.
 
 216 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 ascertained.^ The word "final" has been defined by the Supreme 
 Court of the United States to apply to all judgments and decrees 
 which determine the particular cause ; and it is not necessary that 
 tiie subject-matter in dispute should be finally decided. Thus, if 
 after the decree is pronounced, merely ministerial duties are to be 
 performed, as the sale of mortgaged property on a decree ordering 
 a sale, the decree is considered as final.^ So if the decree directs 
 costs to be tased.2 
 
 A decree in a cause of prize which disposes of the whole matter 
 in controversy, upon a claim filed by particular parties, which is 
 final as to them and their rights, and final also, so far as the claim- 
 ants and their rights are concerned, as to the United States, and 
 which awards execution against the claimants, is a final decree 
 from which an appeal lies.^ 
 
 A decree adjudging that the defendant pay a certain sum into 
 court within a limited time, or in default thereof the court will 
 appoint a receiver, is a final decree.^ And if the jurisdiction of 
 the inferior court is objected to, it would seem that the decision of 
 the court upon this question would be a final decree which might 
 be appealed from under the 2oth section of the judiciary act.^ 
 
 ^ The Palmyra, 10 Wheat. 502. 
 
 - Ray V. Law, 3 Cranch, 179. 
 
 ' Craig V. Steamer Hartford, 1 McAll. C. C. 91. 
 
 * In Withenbury v. United States, 5 Wallace, 819, several libels were filed for 
 the condemnation as prize of war of large quantities of cotton and other goods. 
 On motion these libels were consolidated, and various claims were interposed in 
 the consolidated suit for portions of the property libelled. Among others was 
 that of Withenbuiy, who denied the validity of the capture and claimed a certain 
 number of bales. Upon a hearing of the cause, an order was made dismissing the 
 claim with costs, for which an execution was ordered. On appeal a motion ivas 
 made to dismiss, on the ground that there had been no final decree, because no 
 disposition had been made of the libel or of the cotton or its proceeds. The 
 court held that the decree was final, Clifford, J., dissenting. 
 
 ^ AVabash Canal v. Beers, 1 Black, 54. 
 
 ® Weston V. City Council of Charleston, 2 Pet. 449, 464. This case was brought 
 before the court on a writ of error to the highest State court in South Carolina, 
 under the 25th section of the judiciary act which provides "that a final judgment 
 or decree in any suit in the highest court of law or equity of a State in which a 
 decision in the suit could be had, . . . .where is drawn in question the validity of 
 a statute of, or an authority exercised under any State, on the ground of their 
 being repugnant to the constitution, treaties, or law of the United States, and the 
 decision is in favor of such their validity, .... may be re-examined and reversed 
 or affirmed in the Supreme Court of the United States." In the court of common
 
 CH. IV.] JURISDICTION IN CASES OF SEIZURES. 217 
 
 If the decree is rendered in respect to any subject which is 
 merely within the discretion of the court, no appeal lies, as in 
 respect to costs,^ amendments,^ a petition to open a decree,^ to 
 reinstate a cause which has been dismissed,^ to grant a new trial,^ 
 or to dissolve an injunction, unless the bill has been finally dis- 
 posed of.*" 
 
 When an order is made which is intended merely to carry out 
 a decree, this cannot be said to be a final decree from which an 
 appeal lies, as an order of sale in execution of an original decree ; "^ 
 or an attachment against a party who refuses to obey a decree of 
 the court.^ 
 
 Where a provisional decree was entered for the libellant for 
 $4,000 and interest and costs, with liberty to either party, within 
 twenty days, to take an order of reference to a commissioner to 
 ascertain and report the amount due, and on the coming in of the 
 report, either party to be at liberty to move the court to frame the 
 decree in correspondence therewith, this was held not to be a final 
 decree.^ 
 
 In causes of seizure for the breach of the revenue laws, the 
 right of appeal depends upon the value of the property at the time 
 of seizure, and not on the net proceeds, after expenses, charges, 
 duties, etc., are deducted. ^"^ 
 
 pleas it was decided that a certain ordinance of the city of Charleston was uncon- 
 stitutional ; but on application to the highest court in the State the decision was 
 reversed, and the writ of error was then brought ; and it was held that the decree 
 was a final one, and that the writ of error would lie. See also Holmes v. Jenni- 
 son, 14 Pet. 540. 
 
 ^ Canter v. American Ins. Co. 3 Pet. 307 ; Harmony v. United States, 2 How. 
 210 ; United States v. Brig Malek Adhel, 2 How. 210, 237. 
 
 " Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206 ; United States v. 
 Buford, 3 Pet. 12 ; Walden v. Craig, 9 Wheat. 576 ; Chirac v. Reinicker, 11 id. 280. 
 
 ' Brockett v. Brockett, 2 How. 238. 
 
 * Welsh V. Mandeville, 7 Cranch, 152. 
 
 * See Sparrow v. Strong, 3 Wallace, 97. 
 
 ^ McCollum V. Eager, 2 How. 61 ; Gibbons v. Ogden, 6 Wheat. 448 ; Yerden 
 V. Coleman, 18 How. 86. See also, generally, Smith v. Trabue, 9 Pet. 4; Boyle 
 V. Zacharie, 6 Pet. 648; Toland v. Sprague, 12 Pet. 300; Evans v. Gee, 14 Pet. 
 1 ; Barton v. Forsyth, 5 Wallace, 190. 
 
 ^ Carr v. Hoxie, 13 Pet. 460. 
 
 « McMicken v. Perin, 20 How. 133. 
 
 " The Yuba, 4 Blatchf. C. C. 314. 
 
 *" United States v. 84 Boxes of Sugar, 7 Pet. 453.
 
 218 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 CHAPTER IV. 
 
 OF JURISDICTION IN CASES OF SEIZURES. 
 
 The district court is the primary court of revenue, having 
 original jurisdiction in all cases of seizures under the statutes of 
 the United States concerning imposts, navigation, or trade ; it 
 may try all questions and entertain all suits, either for the con- 
 demnation or acquittal of the property seized ; and may decree 
 restoration and compel delivery of the property or of its proceeds 
 or value, into the possession of those whom it finds ultimately to 
 be entitled thereto ; ^ and may do this as well by summary decree 
 or decretal order, if the case be already before the court, as upon 
 original proceedings. 
 
 It does not derive its jurisdiction from any possession, actual or 
 supposed, of its officers, but from the act and the place of the 
 seizure for the forfeiture ; ^ and if it once acquire jurisdiction, it 
 seems that this is not avoided by any subsequent irregularity.^ 
 
 * The Abby, 1 Mason, 360. 
 
 " The libel should, therefore, aver that the vessel has been seized in the district 
 where suit is brought, and that the seizure still subsists. The Washington, 4 
 Blatchf. C. C. 101. 
 
 ^ The Bolina, 1 Gallis. 75. On p. 81, Story, J., said: "In the admiralty, in all 
 proceedings in rem, the court has a right to order the thing to be taken into the 
 custody of the law, and it is presumed to be in the custody of the law, unless the 
 contrary appears ; and when once a vessel is libelled, then she is considered as in 
 the custody of the law, and at the disposal of the court ; and monitions may be 
 issued to persons having the actual custody, to obey the injunctions of the court. 
 The jurisdiction of the admiralty, however, is not founded on that circumstance." 
 
 And on p. 83, " The district court of the United States derives its jurisdiction, 
 not from any supposed possession of its officers, but from the act and place of 
 seizure for the forfeiture. Act 24th September, 1789, c. 20. And when once it 
 has acquired a regular jurisdiction, I do not perceive how any subsequent irreg- 
 ularity would avoid it. It may render the ultimate decree ineffectual in certain 
 events, but the regular results of the adjudication must remain. I do not appre- 
 hend that an accidental destruction by fire would prevent the court from protect- 
 ing its ofEcers from prosecution by pronouncing, if just, a regular condemna- 
 tion." 
 
 In the case of Jennings v. Carson, 4 Cranch, 2, the principles of admiralty law
 
 CH. IV.] JURISDICTION IN CASES OF SEIZURES. 219 
 
 The court of the district in which the seizure is first made (with- 
 out regard to the place where the forfeiture occurs), has exclusive 
 original cognizance of it ; ^ and if the property be carried into 
 another district, the circuit court will remand the property to the 
 district in which it was originally seized.^ But if the seizure be 
 made upon the high seas,^ or within the territory of a foreign 
 power,* that court has cognizance of it, into which court, or the 
 district of which court, it is finally carried. If the seizure is on 
 land, the court proceeds as a court of common law, with a jury, 
 and the general course of the English Exchequer upon informa- 
 tions in rem is followed.^ 
 
 These two jurisdictions, admiralty and common law, though 
 vested in one court, are perfectly distinct and independent, and 
 cannot be blended together.^ But if the seizures be upon waters 
 
 as to the jurisdiction of the court over the property, were fully laid down by Mar- 
 shall, C. J. The privateer Addition, cruising under a commission during the war 
 with Great Britain, captured the Sloop George and libelled her in the court of 
 admiralty for New Jersey, where she was condemned and decreed to be sold. 
 The claimant, Jennings, appealed, and the decree was reversed by the circuit 
 court. Pending the appeal the vessel was sold ; and Jennings brought a suit 
 against the captors as wrongdoers. The court held, that the moment a vessel was 
 libelled, it was in the custody of the law, not of the captors, and that the court of 
 admiralty, having possession of the property, had an undoubted right to sell it for 
 the benefit of the parties. The law of these two points was ably examined under 
 the principles then acknowledged (1807), and the conclusions there laid down 
 appear to be now well settled. 
 
 In regard to the question of irregularity in the record and in the manner of 
 sale, the court said, in Jennings v. Carson : " At any rate, the court of admiralty 
 must be supposed to have done its duty, and to have been in possession of the 
 
 thing in contest, if its duty required that possession The George and her 
 
 cargo, therefore, must be considered as being in custody of the law, unless the 
 contrary appears. If this conclusion be right, it follows that the regularity of the 
 sale is a question of no importance to the defendants, since that sale was the act 
 of a court having legal possession of the thing, and acting on its own authority." 
 
 * Keene v. United States, 5 Cranch, 304. 
 2 The Abby, 1 Mason, 360, per Story, J. 
 8 The Abby, 1 Mason, 360. 
 
 * The Ship Richmond v. United States, 9 Cranch, 102; The Merino, 9 Wheat. 
 391. 
 
 * United States v. Fourteen Packages of Pins, Gilpin, 235 ; 651 Chests of Tea 
 V. United States, 1 Paine, C. C 499, 504 ; The Sarah, 8 Wheat. 391. 
 
 « In The Sarah, 8 Wheat. 391, Marshall, C. J., after stating the case, pro- 
 ceeded as follows : " By the act constituting the judicial system of the United
 
 220 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 navigable from the sea by vessels of ten or more tons bnrden, this 
 
 States, the district courts are courts both of common law and admiralty jurisdic- 
 tion. In the trial of all cases of seizure on land, the court sits as a court of com- 
 mon law. In cases of seizure made on waters navigable by vessels of ten tons 
 burden and upwards, the court sits as a court of admiralty. In all cases at com- 
 mon law, the trial must be by jury. In cases of admiralty and maritime jurisdic- 
 tion, it has been settled in the cases of United States v. La Vengeance, 3 Dall. 
 297; United States v. Sch. Sally, 2 Crancb, 406; and United States j?. The 
 Betsey & Charlotte, 4 Cranch, 443 ; that the trial is to be by the court- 
 Although the two jurisdictions are vested in the same tribunal, they are as distinct 
 from each other as if they were vested in different tribunals, and can no more be 
 blended, than a court of chancery with a court of common law. The court for the 
 Louisiana district was sitting as a court of admiralty ; and when it was shown that 
 the seizure was made on land, its jurisdiction ceased. The libel ought to have 
 been dismissed, or amended by charging that the seizure was made on land. The 
 direction of a jury in a case where the libel charged a seizure on water was 
 irregular ; and any proceeding of the court, as a court of admiralty, after the fact 
 that the seizure was made on land appeared, would have been a proceeding with- 
 out jurisdiction. The court felt some disposition to consider this empanelling of a 
 jury at the instance of the claimants, as amounting to a consent that the libel 
 should stand amended ; but on reflection, that idea was rejected. If this is con- 
 sidered as a case at common law, it would be necessary to dismiss this appeal ; 
 because the judgment could not be brought before this court but by writ of error. 
 If it is considered as a case of admiralty jurisdiction, the sentence ought to be re- 
 versed, because it could not be pronounced by a court of admiralty on a seizure 
 made on land. As the libel charges a seizure on water, it is thought most 
 advisable to reverse all the proceedings to the libel, and to remand the cause to 
 the district court for further proceedings, with directions to permit the libel to be 
 amended." 
 
 In 1828, the same case came on to be heard again, under the name of United 
 States V. 422 Casks of Wine, 1 Pet. 547, judgment having been rendered in the 
 court below in favor of the claimants. The appeal was made on the ground that 
 the original claimants. Hazard & Williams, were not the real owners of the wine 
 under seizure. The court held that it was too late for this ground to be taken, 
 because it should have been taken before the trial in the court below. The court 
 said : " The objection is founded upon a mistaken view of the time, nature, and 
 order of the proceedings proper in suits in rem whether arising on the admiralty 
 or exchequer side of the court. In such suits the claimant is an actor, and 
 entitled to come before the court in that character only, in virtue of his proprie- 
 tary interest in the thing in controversy ; this alone gives him a persona standi in 
 judicio. It is necessary that he should establish his right to that character, as a 
 preliminary to his admission as a party ad litem, capable of sustaining the litiga- 
 tion. He is, therefore, in the regular and proper course of practice, required, in 
 the first instance, to put in his claim upon oath, averring in positive terms, his 
 proprietary interest. If he refuses so to do, it is a sufficient reason for a rejection 
 of his claim. If the claim be made through the intervention of an agent, the
 
 CH. IV.] JURISDICTION IN CASES OF SEIZURES. 221 
 
 court had admiralty jurisdiction by the statute by libel without 
 jury.^ 
 
 If tlie libel charge the seizure as having been made on the tvater, 
 when in fact it was made on the land, it is bad, and must be either 
 amended or dismissed.''^ 
 
 The district court has, however, no jurisdiction to enforce a lien 
 for duties, by information in admiralty ; because its revenue juris- 
 diction, by procednre in rem, extends only to seizures for for- 
 feitures under the laws of impost, navigation, or trade. But an 
 action at common law may be instituted by the United States and 
 in their name, in the district or in the circuit court, to recover 
 possession of goods if they have a legal lien on them, or to recover 
 damages for the illegal taking or detaining them.^ 
 
 agent is, in like manner, required to maiie oath to his belief of the verity of the 
 claim, and, if necessary, he may also be required to produce and prove hig 
 authority, before he can be admitted to put in the claim. If this is not done, it 
 furnishes matter of exception, and may be insisted upon by the adverse party, for 
 the dismissal of the claim. If the claim be admitted upon this preliminary proof, 
 it is still open to contestation, and, by a suitable exceptive allegation in the admi- 
 ralty, or by a correspondent plea in the nature of a plea in abatement to the 
 person of the claimant, in the exchequer, the. facts of proprietary interest suffi- 
 cient to support tlie claim may be put in contestation and formally decided. It 
 is in this stage of the proceedings, and in this only, that the question of the 
 claimant's right is generally open for discussion. If the claim is admitted without 
 objection, and allegations or pleadings to the merits are subsequently put in, it is 
 a waiver of the preliminary inquiry, and an admission that the party is rightly in 
 court and capable of contesting the merits." But when, after the merits have 
 been passed upon, it appears that the rights of some third person have been 
 wrongfully invaded, it Is a matter for the consideration of the court, but, in no 
 shape, a matter which the original jjwmovent could require at its hands. 
 
 ' The JMargaret, 9 Wheat. 421. 
 
 = The Sarah, 8 Wheat. 391. 
 
 ^ United States v. 350 Chests of Tea, 12 Wheat. 486. In this case, a libel was 
 filed against 350 chests of tea, for the purpose of compelling the payment of the 
 duties thereon. The teas had been landed and stored, and fraudulently and 
 secretly taken from the store-house. The court decided that the duties having 
 been " secured to be paid," according to the statute, they were not now due, and 
 proceeded, p. 497, "By the 9th section of the judiciary act, the district courts 
 have exclusive original cognizance," etc. (giving the substance of the section). 
 " Now it is not pretended that this is a civil cause of admiralty and maritime 
 jurisdiction ; and it has already been shown that there Is no law of the United 
 States, of impost or otherwise, to warrant the seizure of the teas in question, or to 
 subject them to forfeiture. But even If there were such a law, the only proceed-
 
 222 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 ing which could have been instituted under it must have been to forfeit the arti- 
 cles seized, and not to subject them to the payment of duties. If the case be not 
 one of forfeiture, we can perceive no ground upon which the district court could 
 entertain a suit by way of libel to enforce the payment of duties. No jurisdiction 
 is conferred upon that court in such a case, either by the above section of the 
 judiciary act, or by any other act of Congress. There is no doubt but that a suit 
 at common law might be instituted in that court as well as in the circuit court, in 
 the name of the United States, founded upon their legal right to recover the pos- 
 session of goods upon which they have a lien for duties, or damages for the illegal 
 taking or detaining of the same. But the remedy which has been selected is not 
 one which can obtain the sanction of this court."
 
 CH. v.] SUITS BY FOREIGNERS IN ADMIRALTY. 223 
 
 CHAPTER V. 
 
 OF SUITS BY FOREIGNERS IN ADMIRALTY. 
 
 The general subject of admiralty jurisdiction is commerce ; for 
 even its revenue and its military jurisdiction relate mainly to com- 
 mercial matters. These are at home on the ocean, and as they 
 make it a highway from country to country, instead of a barrier 
 between them, they may be said to connect nations into some 
 measure of fellowship and unity ; and this, it may be believed, will 
 grow with the advancing civilization of mankind. It might, there- 
 fore, be expected that courts which deal with these subjects of 
 universal interest should not only be governed by similar princi- 
 ples in different nations, and adopt similar forms, but that they 
 should exercise a kind of common jurisdiction. They sometimes 
 enforce each other's decrees, or complete in one country what is 
 done in another. And frequently the citizens of one nation sue 
 in the admiralty courts of another, and when comity demands it, 
 their petitions will be heard and their causes determined. 
 
 In England, in an early case on this subject, an American vessel 
 which had been captured was recaptured by her crew and taken 
 to England. Some of the crew who were English subjects, and 
 had shipped on tl^ voyage to England with no intention of return- 
 ing to America, libelled the ship for salvage, and the court enter- 
 tained jurisdiction of the case. And subsequently four American 
 seamen petitioned for reward for their services in the rescue, and 
 it was allowed them.^ 
 
 In all matters which properly belong to the jus gentium, and 
 where justice requires that the court should act, it will do so ; as 
 in case of bottomry bonds. ^ In respect to seamen's wages, as a 
 
 1 The Two Friends, 1 Rob. Adm. 271, 276. See also The Good Intent, cited 
 1 Rob. Adm. 286, where an American vessel was recaptured from the French by 
 an American armed ship, and there being no opposition to the jurisdiction of the 
 court, salvage was allowed. 
 
 2 The Gratitudine, 3 Rob. Adm. 240 ; The Jacob, 4 id. 245 ; The Madonna 
 D'Idra, 1 Dods. 37.
 
 224 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 general rule the court will take jurisdiction, if the suit is com- 
 menced with the consent of the representative of the country to 
 which the ship belongs.^ And in some cases where this consent 
 cannot be obtained, the court will proceed without it.^ It seems, 
 however, that the consent of the foreign minister is essential, not in 
 respect to the jurisdiction of the court, but merely as to the exer- 
 cise of its discretion.^ The court is unwilling to enforce a mere 
 municipal law of a foreign country, although it has jurisdiction of 
 tlie subject-matter.^ It is for this reason, that the court will not 
 
 » The Courtney, Edw. Adm. 239 ; The Madonna DTdra, 1 Dods. 37. 
 
 ^ The Vrow Mina, 1 Dods. 234. In this case, a ship which belonged to an 
 alien enemy, came to England under a British license, and was libelled for wages. 
 The court entertained the suit, and stated that as the consent of the accredited 
 minister could not be obtained, it would not be required. The same point was 
 decided in The Maria Theresa, 1 Dods. 303, and the further reason was added, 
 that the courts of the country to which the ship belonged would not grant relief 
 on account of the illegality of the voyage. 
 
 ^ The Golubchick, 1 W. Rob. 143. The vessel in this case belonged to Russia, 
 and was libelled for wages. The master appeared under protest, stating that the 
 suit had been commenced without the consent of the Russian consul, or any other 
 accredited agent of that government in the country. Dr. Lusliington held, that 
 " the court must possess original jurisdiction over the subject-matter, or it can 
 have none at all ; for the consent of a foreign consul or minister never could con- 
 fer a jurisdiction upon a British court of judicature." The learned judge, how- 
 ever, said that he wished " it to be understood, that in all future cases of this kind, 
 it must be held to be indispensable, that notice of the intended proceedings should be 
 given, in the first instance, to the representative of the foreign government. In 
 so directing, I do not mean to intimate that the court would feel imperatively 
 bound to act in accordance with the views that might be entertained by such rep- 
 resentative ; but I consider it is expedient that such intimation should be given, 
 in order that, if any objection should be taken against the prosecution of the pro- 
 ceedings in this court, the court being informed of the grounds upon which such 
 objection is taken, might be enabled to form its own judgment of the sufficiency 
 of such objection, and adopt such a course as may be most conducive to the fur- 
 therance of justice in the cause." See also The Milford, Swabey, Adm. 366 ; The 
 Herzogin Marie, Lush. Adm. 292; The Octavie, Brow. & L. Adm. 215; The 
 Nina, Law Rep. 2 Adm. 44. 
 
 * The Courtney, Edw. Adm. 239. In this case, the statute of the United 
 States was printed on the back of the shipping articles, requiring the master, in 
 case of the discharge of the seamen in a foreign port, to pay to the American 
 consul three months' wages over and above their wages then due, two thirds of 
 which were to go to the seamen and one third to the treasury of the United 
 States. The court entertained the suit for wages under the shipping articles, but 
 refused to enforce the provisions of this statute. In The Madonna D'Idra, 1 Dods.
 
 CH. v.] SUITS BY FOREIGNERS IN ADMIRALTY. 225 
 
 generally take jurisdiction of possessory suits between foreigners^ 
 Nor will it entertain a suit by a British part-owner in a foreign 
 ship to arrest her until bail is given for her safe return to her 
 home port.2 
 
 Stipulations in the shipping articles, that no suit should be 
 
 37, a claim was made by some Greek sailors -who had shipped at Smyrna for 
 London, for their wages, and also for an allowance for their subsistence until 
 they could return to their country. There was evidence that, by the customary 
 regulations of Turkey, it was the duty of a master to take his crew back in his 
 own vessel, or to find conveyance for them in another vessel, and that, in case of 
 the sale, the proceeds were liable for the support of the crew, and to procure them 
 the means of conveyance to their own country. A sufficient sum for the sub- 
 sistence of the crew was accordingly allowed, in addition to their wages. The 
 court, after referring to the custom above cited, said : " This, I think, effectually 
 distinguishes the present case from the American cases which were lately before 
 the court. The American seamen did not there attempt to establish their right, 
 as due to them by the universal usage and custom of their country, or as forminnf 
 part of the contract under which they sailed, but upon the ground of a statute 
 lately introduced. As the demand was made upon a mere legislative act of that 
 country, the court declined to interfere, but it held there, that if the subject- 
 matter in dispute between the parties had formed part of the contract, it would 
 have upheld the demand." 
 
 ^ The Johan & Seigmund, Edw. Adm. 242. The vessel in this case belonged 
 to Hamburg. The suit was brought by the owners of fifteen sixteenths to recover 
 possession of the vessel from the master, who owned one sixteenth. Sir William 
 Scott said : " The court, with the consent of the parties and of the accredited 
 agent of the country to which they belong, certainly does hold plea of causes 
 between foreigners, arising on the jus gentium ; but this, I think, is a case which 
 cannot be so considered, because, whatever may have been the general rule 
 under the old civil law in cases of possession, it has been variously modified by the 
 municipal law of different countries ; and, therefore, by entertaining this suit I 
 might deprive the parties of those rights to which they are entitled by the law of 
 their own country, as administered in those courts to which they are directly and 
 properly amenable." See also The Martin of Norfolk, 4 Rob. Adm. 293. In The 
 See Reuter, 1 Dods. 22, the same learned judge said : " The court, therefore, is 
 very unwilling to enter upon such questions ; and has never, I believe, enter- 
 tained suits of this kind, unless the cases have been referred to its decision by the 
 consent of parties, or by the intervention of the representative of the foreign state 
 devolving the jurisdiction of his own country on this court." In this case, how- 
 ever, there being an order of the court exercising admiralty powers in the coun- 
 try to which the ship belonged, decreeing that the master should give up the ves- 
 sel, the court enforced the decree. 
 
 ' In The Graff Arthur Bernstorff, 2 Spinks, Adm. 30, Dr. Lushingtonm\\\ad,iQ(l 
 that he would entertain jurisdiction if it appeared that the part-owner had such 
 a remedy by the law of the country to which the ship belonged. 
 VOL. 11. 15
 
 226 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 brought, except in the port of the country to which the ship 
 belonged, would undoubtedly be enforced in England, but the 
 admiralty court would take jurisdiction if the voyage were broken 
 up and abandoned in England.^ 
 
 It is, however, in the judicial discretion of the court to import 
 the law of a foreign country into its proceedings, and it sometimes 
 declines to do so, if such an adoption would work injustice to 
 others.2 Whether freight is liable to a master for his wages is 
 a question of remedy and not of contract, and depends, therefore, 
 on the lex fori? 
 
 In this country, it seems to be settled, after some controversy, 
 that our admiralty courts have full jurisdiction over suits between 
 foreigners, if the subject-matter of the controversy is of a maritime 
 nature. It is, however, a question of discretion in every case, and 
 the court will not take cognizance of the cause, if justice would 
 be as well done by remitting the parties to their home forum. In 
 one of the most elaborately considered cases on this subject, juris- 
 diction was exercised in the case of a bottomry bond, although the 
 contract was made between subjects of the Sublime Porte, and it 
 did not appear that it was intended that the vessel should come to 
 the United States.* Claims for salvage, which depend for their 
 determination upon the law of nations, will generally be consid- 
 ered by our courts.^ It is, however, in cases of seamen's wages 
 
 ^ The Wilhelm Frederick, 1 Hagg. Adm. 138. The same rule has been adopted 
 bv the common-law courts, where the seaman is wrongfully discharged in a for- 
 eign country, Sigard v. Roberts, 3 Esp. 71 ; or compelled by cruelty to leave the 
 vessel, Limland v. Stephens, 3 Esp. 269. 
 
 ^ The Johannes Chrlstoph, 2 Spinks, Adm. 93. 
 
 3 The Milford, Swabey, Adm. 362. 
 
 * The Jerusalem, 2 Gallis. 191. See also The Aurora, 1 Wheat. 96. 
 
 ^ The Bee, Ware, 332. In the case of One Hundred and Ninety-four Shawls, 
 Abbott, Adm. 317, which was a case of salvage of English goods by an English 
 ship. Judge Beits held, that although the court had jurisdiction, yet that the 
 exercise of a sound discretion required him to dismiss the prosecution and to remit 
 the property and cause to the proper forum in Great Britain. The learned judge 
 stated that when the only question was as to the rate of reward, the court would 
 be solicitous to give every practicable despatch to the suit. The reasons for dis- 
 missing the suit were, that the owner, in his answer, charged embezzlement and 
 spoliation of the property ; that the provisions of the English statute relating to 
 salvage could be best adjudicated upon in England; that the vessel in which the 
 goods originally were, had been the subject of salvage and had been taken to
 
 CH. v.] SUITS BY FOREIGNERS IN ADMIRALTY. 227 
 
 that the power of the coiirts is most frequently invoked, and it is 
 well settled that cognizance of a suit will be taken whenever jus- 
 tice demands that it should be done ; ^ as where the voyage is 
 broken up at a port of this country,^ or the seaman is compelled 
 
 England by other salvors, and tliat all the questions relative to the salvage service 
 could be best determined together ; that the vessel to which the salvors belono-ed, 
 was on a voyage to England at the time the service was rendered ; and that the 
 articles saved were especially adapted to the English market, and were trans- 
 shipped from a vessel bound to London and near that port, and the court doubted 
 whether such conduct, if excusable in law, gave a claim to remuneration as for a 
 meritorious salvage. 
 
 ' The Ada, Daveis, 407. The law on this subject is ably stated in the cele- 
 brated case of Taylor v. Carryl, 20 How. 583, 611, by the learned chief justice 
 of the Supreme Court of the United States : " It is true, that it is not in every 
 case obligatory upon our courts of admiralty to enforce it in the case of foreign 
 ships, and the right or duty of doing so, is sometimes regulated with particular 
 nations by treaty. But as a general rule, where there is no treaty regulation, and 
 no law of Congress to the contrary, the admiralty courts have always enforced the 
 lien, where it was given by the State or nation to which the vessel belonged. In 
 this respect, the admiralty courts act as international courts, and enforce the lien 
 upon principles of comity. There may be, and sometimes have been, cases in 
 which the court, under special circumstances, has refused to interfere between the 
 foreign seamen and ship-owner ; but that is always a question of sound judicial 
 discretion, and does not affect the jurisdiction of the court." It should be re- 
 marked, that although this citation is taken from a dissenting opinion, yet the 
 decision of the court proceeded on another ground, and this doctrine was not 
 doubted. 
 
 In Ellison v. Ship Bellona, Bee, 112, the court said: " Courts of admiralty 
 have a general jurisdiction in causes, civil and maritime The case of sea- 
 men's wages comes within the description of causes ; and this jurisdiction has been 
 uniformly exercised by me, as regards foreigners generally." In this case, the 
 court took jurisdiction in a suit for wages against a foreign vessel havin"- letters of 
 marque. It was, however, said that no action could be brought in a fbreio-n coun- 
 try against, a ship of war, because the seamen look to the government of the 
 country by whom they are employed. Nor, it is said, would an action lie against 
 a privateer, because the share of prize is settled between the owners and crew, 
 and before the seamen are entitled to any prize money, the validity of the prize 
 must be determined by the proper courts of the nation to which the captors 
 belong. 
 
 * In The Gazelle, 1 Sprague, 378, in The Barque Havana, 1 Sprague, 402, 
 and in Peake v. Bark Havana, November, 1857, all in the district court for 
 the Massachusetts district, Judge Sprague held, that where a foreign vessel was 
 attached and sold by State process for an ordinary debt of the owners, and 
 the voyage was thus broken up, the seamen might sue in admiralty for their 
 wages.
 
 228 LAW AND JURISDICTION OF ADMRALTY. [BOOK II. 
 
 to desert on account of cruel treatment,^ or is entitled to be dis- 
 charged on account of a deviation.^ 
 
 It seems to be questioned, whether a foreign seaman is entitled 
 to sue in this country, if discharged here by his own wish, or with 
 his consent.^ But it is very clear that he is not, if he leaves the 
 vessel of his own accord before the voyage is finished, and when 
 he could return to his own country.^ And our courts, if neces- 
 sary, will enforce the provisions of a foreign statute,^ though, if 
 possible, they prefer in such a case to remit the parties to their 
 home forum.^ The same rule prevails in this country as in Eng- 
 
 1 Weiberg v. Brig St. OlofF, 2 Pet. Adm. 428. 
 
 '' Weiberg v. Brig St. Oloff, 2 Pet. Adm. 428. There was also cruel treatment 
 in this case. The same point, as to the question of the effect of a deviation, was 
 decided in the case of Moran v. Baudin, 2 Pet. Adm. 415. But in Bucker v. 
 Klorkoeter, Abbott, Adm. 402, 409, there is a dictum of Judge Belts, that he 
 would not take cognizance of a case where the seaman claimed his discharge solely 
 on the ground of a deviation. In Jansen v. The Heinrich, Crabbe, 226, where 
 the seamen were held entitled to leave the vessel, because they bad not signed 
 shipping articles, no question was made as to the jurisdiction of the court. 
 
 ^ It was held in The Infanta, Abbott, Adm. 2G3, that the court wpuld not take 
 jurisdiction in such a case. See also Graham v. Hoskins, Olcott, Adm. 224. In 
 The Brig Napoleon, Olcott, Adm. 208, the libellant was an American citizen, and 
 the case is not, therefore, contrary to those above cited, though the language of 
 the court appears to conflict. But in Johnson v. Dalton, 1 Cow. 543, the 
 supreme court of New York took cognizance of a marine tort, on the sole ground 
 that the libellant had been legally discharged, though the voyage was not ended. 
 And in Pugh v. Gillam, 1 Calif 485, where the plaintiff, a British subject, shipped 
 on time and was discharged by the master, seven days before the time expired, 
 because the vessel was about to sail on a long voyage, it was held that he could 
 sue in our courts, though the vessel and captain were English. 
 
 * Gonzales v. Minor, 2 Wallace, C. C. 348 ; • Thomson v. Ship Nanny, Bee, 
 217; Willendson v. The Forsoket, 1 Pet. Adm. 197; Henry u. Curry, Abbott, 
 Adm. 433; The Pacific, Blatchf & H. Adm. 187. In Gardner v. Thomas, 14 
 Johns. 134, the Supreme Court refused to entertain a suit, where it did not 
 appear but that the parties intended to return to their own country at the termi- 
 nation of the voyage. In Lynch v. Crowder, U. S. D. C. New York, 12 Law- 
 Rep. 355, the seamen shipped in England to a port in this country, and thence to 
 a port of discharge in the United Kingdom. The master assented to their leaving 
 in this country, but afterwards withdrew his consent, and the dissent of the Bi-itish 
 consul to the suit was also filed. Under these circumstances. Judge Betts 
 refused to allow the case to proceed, but held that as the master had given his un- 
 reserved consent to their discharge, and there was no proof that he had with- 
 drawn it before costs were incurred, the respondents should pay summary costs. 
 
 ' See ante, p. 172, n. 6. 
 
 * One Hundred and Ninety-four Shawls, Abbott, Adm. 317.
 
 CH. v.] SUITS BY FOREIGNERS IN ADMIRALTY. 229 
 
 land, respecting stipulations in the shipping articles preventing 
 the seamen from suing save in the home port. They have no 
 application, if the voyage is broken up in a foreign country. ^ Our 
 courts, it would seem, go somewhat farther than the English 
 courts in requiring the assent of the minister or consul of the 
 foreign country to which the parties belong ; ^ and some recog- 
 nition on his part of the court is usually required. His assent 
 cannot have anything to do with the question of jurisdiction, for 
 the reasons that we have already stated, but it becomes essential 
 in another point of view. For the court is not obliged to take 
 
 ' Backer v. Klorkgeter, Abbott, Adm. 402. The case of Aertsoa v. Ship 
 Aurora, Bee, IGl, which is sometimes cited to the point that the court will in no 
 case interfere where the shipping articles stipulate that all disputes shall be regu- 
 lated according to the law of the country to which the vessel belongs, was decided 
 on the ground that the libellant had made out no case for relief. 
 
 ^ In Davis v. Leslie, Abbott, Adm. 123, 134, after stating the English rule, 
 Judge Belts said : " But in the courts of the United States, this precautionary- 
 condition is not required ; and jurisdiction will ordinarily be exercised, if the 
 voyage has been terminated by full completion or abandonment, or if the con- 
 tract of hiring is dissolved by the wrongful act of the owner or master." But in 
 The Infanta, decided in April of the same year, Abbott, Adm. 263, 268, the same 
 learned judge said : " It is expected that a foreign seamen seeking to prosecute an 
 action of this description in the courts of this country, will procure the official 
 sanction of the commercial or political representative of the country to which he 
 belongs ; or that good reason will be shown for allowing his suit, in the absence of 
 such approval." The language of Mr. Justice Grier, in Gonzales v. IMinor, 2 
 "Wallace, C. C. 348, is much to the same effect. Without deciding whether the 
 court would hear any case which was prosecuted without the consent of the con- 
 sul, the learned judge said: "But when the court does entertain such cases with- 
 out the request of the representative of the government, they will require the 
 libellants to exhibit such a case of peculiar hardship, injustice, or injury, likely to 
 be suffered without such interference, as would raise the presumption of a request, 
 because it is in fact conferring a favor on such foreign state." And in Hay v. 
 Brig Bloomer, U. S. D. C. Mass., March, 1859, Sprague, J., said : "The usual 
 course in the case of a libel by a foreign seaman against his vessel, is to direct the 
 clerk to inform the consul of the government of the pendency of the suit, that he 
 may take such notice of it as he thinks proper ; and, unless there were strong 
 circumstances in the case, the court would not proceed in rem against a foreign 
 vessel, without the assent of the commercial representative here of the foreign 
 government of the country where she belonged." See also Lynch v, Crowder, 
 U. S. D. C. New York, 12 Law Rep. 355. In The Barque Havana, 1 Sprague, 
 402, as the accounts depended somewhat upon English law and usages, the aid of 
 the British consul, as assessor, was invoked.
 
 230 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 jurisdiction in any suit between foreigners, and does so for one 
 of two reasons, either to protect its own citizens, as wliere foreign- 
 ers are discharged upon our shores, or on account of the comity 
 of nations. In this latter case, the consent of the accredited min- 
 ister of the foreign country is of importance. If he expressly sig- 
 nifies his dissent, this is equivalent to an avowal on the part of 
 the foreign government that they have no desire that our courts 
 should exercise jurisdiction, and of course, no principles of comity 
 require it. And a statute expressly providing that, except in 
 certain cases, seamen shall not sue in a foreign country, would 
 have the same effect. ^ 
 
 In one case, the libellant, an American citizen, had been hired 
 in Boston for a voyage in an English registered vessel with an 
 English master, from Boston to St. Jago and back to a port in the 
 United States. The voyage was performed and the crew dis- 
 charged in Boston. An action was commenced in a cause of per- 
 sonal damage, and the English consul filed a protest to the juris- 
 diction of the court, setting forth that the vessel was a British 
 vessel, and the commander a British subject. Also, " that an in- 
 vestigation of some of the alleged causes of damage must call in 
 question official acts and conduct of a British functionary in regard 
 to British subjects, for which he is responsible only to his own gov- 
 ernment." Mr. Justice Curtis overruled the protest, and, on the 
 merits, affirmed a decree in favor of the libellant.^ 
 
 Jurisdiction has also been sustained of a suit brought by an 
 alien against the consul of his nation, who was also an alien, and 
 who resided in the district, to recover the amount of official fees 
 improperly exacted.^ 
 
 * Hay V. Brig Bloomer, U. S. D. C. Mass., March, 1859. The court seem to 
 rely in this case on the statutes of the 7th & 8th Victoria, c. 112, in 1844, and 
 the 13th & 14th Victoria, c. 93, § 94, in 1850. No notice seems to have been 
 taken of the 17th & 18th Victoria, c. 104, § 190. But see Roberts v. Knights, 7 
 Allen, 449. 
 
 * Patch V. Marshall, 1 Curtis, C. C. 452. 
 
 ' Lowry V. Lousada, U. S. D. C. Mass., Lowell, J., 1 Am. Law Review, 92.
 
 CH. VI.] PROCEEDS IN THE REGISTRY. 231 
 
 CHAPTER VI. 
 
 OF THE JURISDICTION OF THE ADMIRALTY OVER PROCEEDS IN 
 
 THE REGISTRY. 
 
 When a vessel or other property against which a suit is brought 
 is sold, and the proceeds brought into the registry, the power of 
 the court to distribute these proceeds is unquestioned, but the 
 right of the court to decree that third persons, who could not have 
 proceeded against the property in rem, may receive a proportion of 
 the proceeds of that property to satisfy their claims against the 
 owner, does not seem to us to be clearly settled j)n principle, if it is 
 on authority, and the growth of the power of the admiralty courts, 
 in this particular, is to be attributed to a desire, on their part, to 
 mitigate the hardships imposed on material men by the jealousy of 
 the common-law courts. 
 
 Thus in England, prior to the passage of a late statute, material 
 men could not enforce their lien against the vessel in admiralty ; 
 but at one time they were permitted to receive on their petition 
 the amount due to them from the surplus proceeds in the registry. ^ 
 The power of the court to decree payment out of the proceeds in 
 such a case, when the payment was opposed by the owners, was 
 soon afterwards denied.^ And although the authority of this case 
 was denied and the old rule maintained by Sir John Nicholl, a short 
 time afterwards,^ yet his decision was reversed by the Privy Coun- 
 cil, on the ground that there was no difference between the right 
 
 ^ See cases cited 3 Hagg. Adm. 148, note. In most, if not in all of these cases, 
 however, no appearance was made in behalf of the owners. In The John, 3 Rob. 
 Adm. 288, the court decreed, in the case of a foreign ship, that a material man 
 might have payment of the proceeds in the registry, but denied the right to a 
 general creditor of the owners, on the ground that the nature of the accounts ren- 
 dered his demand more fit for a court of chancery. The court said : " The court 
 of admiralty would not attempt to interfere, where the demand itself is the subject 
 of a dispute which the powers of a court of equity are alone competent to 
 settle. 
 
 = The Maitland, 2 Hagg. Adm. 253. 
 
 * The Neptune, 3 Hagg. Adm. 129.
 
 232 LAW AND JUEISDICTION OF ADMIRALTY. [BOOK IL 
 
 of action against proceeds, and that against the thing itself, where 
 the claim is opposed by the owner, or by a pei'son claiming under 
 him, as a mortgagee in possession.^ And a mortgagee, not in pos 
 session, has also been denied a share of the proceeds. ^ But where 
 a vessel, which had been seized by the sheriff on execution, was 
 taken by the officers of the court of admiralty, and sold by order 
 of that court, and the sheriff petitioned that the balance of the pro- 
 ceeds after the judgment in the admiralty court had been satisfied, 
 should be paid over to him, the Privy Council, on appeal, decreed 
 that it should be done in preference to paying the balance to the 
 owner. ^ 
 
 The power of the admiralty court to adjudicate between rival 
 claimants to the balance of proceeds in the registry after satisfying 
 liens, has been asserted in England by the House of Lords in a 
 well-considered opinion.^ 
 
 In this country a liberal policy has been pursued, and the 
 general principle has been laid down, that where proceeds are 
 rightfully in the possession and custody of the admiralty, " it is an 
 inherent incident to the jurisdiction of that court to entertain 
 supplemental suits by the parties in interest, to ascertain to whom 
 those proceeds rightfully belong, and to deliver them over to the 
 parties who establish the lawful ownership thereof." ^ It is not, 
 
 ^ The Neptune, 3 Knapp, P. C. 84. This decision was followed in the case of 
 The New Eagle, 2 W. Hob. 441, where the court refused the petition of one who 
 alleged that he had advanced a sum of money for the service of the vessel in the 
 payment of seamen's wages, etc., and ordered the proceeds to be paid to the mort- 
 gagees. Dr. LusMngton, referring to the case of The Neptune, said : " After that 
 decision, it is impossible to make a distinction between the proceeds and the ship 
 itself." 
 
 2 The Portsea, 2 Hagg. Adm. 84 ; The Exmouth, id. 88, note. 
 
 ^ The Flora, 1 Hagg. Adm. 298. This case is generally cited as an authority 
 to the point, that a judgment debt in a common-law court may be proved against 
 the proceeds in admiralty. And the authority for this inference is the remark of 
 the court that, " although the court of admiralty cannot enter into the contracts 
 of general creditors, yet it may be bound to take a judgment on record as a debt." 
 The decision seems, however, to have rested mainly on the ground that the right 
 of the sheriff against the proceeds, on an attachment, was not lost by a sale under 
 the admiralty court, its judgment being satisfied. 
 
 * Place V. Potts, 5 H. L. Cas. 383, affirming the decision of the Exchequer 
 Chamber, 10 Exch. 370, which affirmed the decision of the Court of Exchequer, 
 8 Exch. 705. See also The Dowthorpe, 2 W. Rob. 73. 
 
 ^ Andrews v. Wall, 3 How. 568, 573, per Story, J.
 
 CH. VI.] PROCEEDS IN THE REGISTRY. 233 
 
 however, to be understood that in this country the general credit- 
 ors of the owner may, by petition, cLaim the proceeds in the regis- 
 try, but the right is limited generally, at least, to those whose debt 
 " is either of itself or in its origin a lien on the ship, or other thing 
 out of which the moneys were produced." ^ 
 
 Where the lien is waived by intendment of law ,2 or is lost by a 
 neglect to enforce it within the proper time,^ it has been held that 
 the claim may be enforced against the proceeds. But some courts 
 have gone further, and it has been held that after the liens are all 
 satisfied out of the proceeds of the sale, the surplus funds remain- 
 ing in court are subject as against the owner to the claim of the 
 master, although he can only sue in personam for wages.^ And 
 in another case, a stevedore, who, we have seen, cannot sue either 
 in personam or in rem^ was allowed to have his claim paid out of 
 the proceeds after all other claims were satisfied.*^ It has also 
 been held that the admiralty will take jurisdiction in matters of 
 account between part-owners in respect to the surplus proceeds ; ''' 
 but this doctrine, we think, is not supported on principle or on 
 authority. 
 
 No distinction seems to be made in this country between the 
 right of a mortgagee in possession and one who is out of possession, 
 but the proceeds are given to either in preference to the owner or 
 a general creditor, on the grotmd that the mortgagee has a lien at 
 law.^ 
 
 1 Gardner v. The Ship New Jersey, 1 Pet. Adm. 223, 226. 
 - Zane v. The Brig President, 4 Wash. C. C. 453. See also The Boston, 
 Blatchf. & H. Adm. 309, 328. 
 
 8 The Stephen Allen, Blatchf. & H. Adm. 175. 
 
 * The Santa Anna, Blatchf. & H. Adm. 79. 
 ^ See ante, p. 189, n. 5, 6. 
 
 * Emerson v. Proceeds of The Pandora, 1 Newb. Adm. 438. But in the case 
 of The Ship Panama, Olcott, Adm. 343, where the owner of the vessel claimed 
 the right to the proceeds against the mortgagee and had paid the claim of a 
 stevedore, it was held that he could not deduct the amount from the proceeds due 
 the mortgagee. 
 
 ^ The L. B. Goldsmith, 1 Newb. Adm. 123. 
 
 5 Harper v. The New Brig, Gilpin, 536 ; Leland v. Ship Medora, 2 Woodb. & 
 M. 92; The Ship Panama, Olcott, Adm. 343 ; Remnants in Court, id. 382. The 
 right of a lien creditor is, however, preferred to that of a mortgagee. Justi Pon 
 v- The Proceeds of the Brig Arbustci, U. S. D. C. New York, 6 Am. Law Reg. 
 511.
 
 234 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 A surety on a bond or stipulation in admiralty, who has paid 
 the money in accordance with the decree of the court, stands in the 
 place of the original debtor, and is entitled to the proceeds after 
 the claims for which the vessel was libelled are paid. But his 
 right is no greater than that of the original debtor, and his claim 
 to the proceeds is postponed to creditors who have liens on the 
 property.! 
 
 Where there are several suits against the proceeds, and the 
 amount in the registry is not sufficient to pay them all, they will 
 be paid according to their precedence. Thus a claim for seamen's 
 wages is generally paid first, a bottomry bond next, and the claim 
 of a material man next. Where there are several claims filed by 
 material men, and one of them has obtained a decree of the court 
 in his favor, he will be paid in priority to the others, and the others 
 will share ratably .^ So where a collision takes place, and one of 
 the parties injured institutes proceedings against the vessel in fault, 
 and at his own expense prosecutes his suit to a decree in his 
 favor, another party injured by the collision, who has taken no 
 part in the litigation, except to file a libel before the decree was 
 rendered in the first case, cannot share in the proceeds of the ves- 
 sel until the claim of the first party is satisfied in full.^ If the differ- 
 ent demands are of the same nature, priority in beginning the suit 
 will not give priority in payment, if the other demands are brought 
 to the attention of the court before a decree in the suit first brought 
 is rendered.* The possessory lien of a shipwright is subject to 
 maritime liens attaching to the ship when taken into the ship- 
 wright's yard, as salvage and mariner's wages then due ; but is 
 entitled to preference over claims for wages earned, or necessaries 
 furnished subsequently.^ In England, the master has a lien for 
 wages, but he cannot, if he binds himself formally in the terms of 
 a bottomry bond, enforce this lien against the claim of the bond- 
 holder ; ^ but if he is not personally liable on the bond, his claim, 
 
 * Carrol v. The T. P. Leathers, 1 Newb. Adm. 432. 
 
 * The Wm. F. Safford, Lush. Adm. 69. 
 
 ' Wood worth v. Insurance Co. 5 Wallace, 87. See also The Clara, Swabey, 
 Adm. 1 ; Bernard v. Hyne, 6 Moore, P. C. 56. 
 
 * The Desdemona, Swabey, Adm. 158. 
 ' The Gustaf, Lush. Adm. 506. 
 
 * The Jonathan Goodhue, Swabey, Adm. 524.
 
 CH. VI.] PROCEEDS IN THE REGISTRY. 235 
 
 though postponed to that of the seamen for their wages, is pre- 
 ferred to that of the bondholder.^ And even where the master is 
 formally bound, if the bottomry bond is on ship, freight, and 
 cargo, his claim will be satisfied first, if the bond would exhaust 
 the ship and freight, but ship, freight, and cargo are sufficient to 
 satisfy the claims of both the master and bondholder.^ 
 
 The possessory lien of the master of a vessel for freight and 
 general average, earned and incurred subsequently to the giving of 
 a bottomry bond, is entitled to precedence over a bottomry bond.^ 
 
 The proceeds in the registry of an admiralty court cannot be 
 attached by process of foreign attachment issuing from a common- 
 law court.* 
 
 And where a sum of money in court has been decreed to be 
 paid to a libellant, the court will not, on application of a creditor, 
 appropriate it to a debt due by the libellant.^ And if the vessel is 
 bailed in one action, and arrested and sold in another, and the 
 proceeds paid into the registry, the court will not apply the balance 
 remaining, after satisfying the decree in the second suit, to pay- 
 ment of any excess of the decree in the first over the amount of 
 bail, but will pay the balance to the owners of the vessel sued.^ 
 
 ^ The Salacia, Lush. Adm. 545. 
 
 2 The Edward Oliver, Law Rep. 1 Adm. 379. 
 
 * Cargo ex Galum, Brow. & L. Adm. 169. 
 
 * The Albert Crosby, Lush. Adm. 101. Dr. LusMngton said: "I should cer- 
 tainly interfere by attaching any person who meddled with my registi-ar." 
 
 ' Brackett v. The Hercules, Gilpin, 184. 
 « The Wild Ranger, Brow. & L. Adm. 84.
 
 236 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 CHAPTEE VII. 
 
 OF THE PRINCIPLES OF ADMIEALTY JURISPEUDENCE. 
 
 We shall endeavor to treat of these in connection with the 
 several topics which we have before enumerated. We divided 
 them into three classes ; the first of which consisted of those suits 
 in admiralty which arise from private and civil claims, grounded 
 on maritime contracts, either express or implied, or on maritime 
 torts or trespass. The list of these is long ; because it enumerates 
 nearly or quite all the topics which are embraced in the law of 
 shipping. In treating of that subject, we were sometimes obliged 
 to state by anticipation the principles of admiralty jurisprudence ; 
 and as the admiralty court takes cognizance in this country of 
 nearly all the cases or questions which can arise under the law of 
 shipping, and in the far greater number of instances applies the 
 same principles as the common-law courts, we have necessarily 
 exhibited these principles in treating of that topic. What we pur- 
 pose to do now, therefore, is to state what is peculiar to courts of 
 admiralty, omitting whatever is common to them and courts of 
 common law, because stated elsewhere, so far as we are able to do 
 this, and leave what we have to say of admiralty intelligible. It 
 will be impossible to avoid all repetition, but we shall do so as far 
 as we can. 
 
 SECTION I. . . 
 
 OF THE RIGHTS AND DUTIES OF SHIP-OWNERS. 
 
 It has been held in admiralty in England that a party holding a 
 regular bill of sale of a ship has the legal title, and is entitled to 
 the possession of it against any asserted equitable claim in others. 
 In other words, the English court of admiralty, prior to the pas- 
 sage of the 3 & 4 Vict. c. 65, in determining causes of possession, 
 looked only to the legal title to the vessel, and paid no respect to
 
 CH. VII.] RIGHTS AND DUTIES OF SHIP-OWNERS. 237 
 
 any equitable interests.^ It may be doubted whether our courts 
 of admiralty would declare so broad a principle as this ; although 
 the regular bill of sale would doubtless have great force here.^ 
 And even in England it is made a question how far a court of 
 admiralty must regard itself as so far . ministerial, that it must 
 decree possession on the bare legal title, under a bill of sale, in 
 
 ^ See cases ante, p. 187, n. 1. 
 
 ^ It has, however, been distinctly held that our courts of admiralty have no 
 jurisdiction to try questions of equitable title to vessels, and can only pass on the 
 legal title. The Wm. D. Rice, U. S. D. C. Mass., Nov. 1857, per Ware, J., 20 
 Law Rep. 501 ; and in Kellum v. Emerson, 2 Curtis, C. C. 79, 82, Mr. Justice 
 Curtis said : " The equitable title of the libellant, as a cestui que trust, being 
 denied, it must be tried ; and if found to exist, a court of equity would protect it 
 and grant the appropriate relief. But a court of admiralty has not jurisdiction 
 to try such an equitable title, and to grant the relief appropriate to it. Though 
 it may, by a petitory suit, try the title to a vessel, I apprehend this must be con- 
 fined to legal titles. I am not aware that in any case it has gone beyond these, 
 and tried and determined and undertaken to compel the performance of mere 
 trusts. Still less that it has done so to determine rights, not to a vessel, but to its 
 proceeds." See also Kynoch v. The S. C. Ives, 1 Newb. Adm. 206, where the court 
 refused to decree possession of the vessel to one to whom the owner had contracted 
 to sell her. In The Oriole, 1 Sprague, 31, it was held, where there was a con- 
 tract for the sale of a vessel, the purchaser to have title upon the performance of 
 a condition at a future day, and in the mean time to have possession, that on the 
 breach of the condition the owner was entitled to possession. The court refused 
 to go into the equities of the case. In The John Jay, 3 Blatchf. C. C. 67, a 
 libel in rem was filed to foreclose a mortgage. In the circuit court a motion for 
 leave to amend the libel was made so as to change the action to a possessory suit. 
 The motion was refused, and Nelson, J. doubted whether the court could have 
 jurisdiction if the libel were in that form, and said : " I am not aware of any case 
 or of any settled practice or usage of the courts of admiralty in this country, 
 afiirming the jurisdiction of those courts in cases where the title to, or rights of 
 property in vessels, simply, has been in dispute, and where the ^proceedings have 
 been instituted to recover the possession, except between part-owners." On 
 appeal, Wayne, J., said, that courts of admiralty had never taken jurisdiction to 
 enforce the payment of a mortgage, " or by a possessory action to try the title, or 
 right to the possession of a ship." Bogart v. The John Jay, 17 How. 402. In 
 The Taranto, 1 Sprague, 170, a company was formed for the purpose of proceed- 
 ing to California, a vessel bought, and the bill of sale was permitted by a vote of 
 the company to stand in the names of their agent and treasurer, and of the cap- 
 tain. These parties refusing to give up the vessel, a petitory and possessory suit 
 was brought, and it was contended for the respondents that the legal title of the 
 ■vessel being in them, the court could not enforce a mere equitable title. The 
 court, however, decreed that the title was in the libellauts, and ordered the vessel 
 to be given up.
 
 238 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 opposition to the equity of the case.^ And the court there will 
 not interfere to give possession of the ship's register to any party 
 whose title to be considered as the registered owner is open to 
 objection and doubt.^ In this country, it has been held in the 
 prize court that the legal ownership is to be decided by the bill of 
 sale ; and that any equitable interests existing in the claimants 
 are immaterial to the question of ownership.^ But if a party has 
 declared himself in the acts of a court a part-owner in a privateer, 
 he cannot cast off this character, or the responsibilities which 
 attach to it for damages assessed against the privateer, even when 
 his name does not appear on the ship's papers.* 
 
 The distinction above referred to, between petitory and posses- 
 
 * The case of The Sisters seems to have been earnestly contested. As the case 
 stands in 3 Rob. Adm. 213, it is reported that Charno'ck proceeded in the court 
 to obtain possession. The other side contended that the allegation of title was 
 not sufficient to admit him to the court. (It was a recital of the bill of sale, and 
 an allegation that he had never sold or transferred the possession.) The allega- 
 tion was admitted as sufficient. In The Sisters, 4 Rob. Adm. 275, it is reported 
 that an allegation was given on the part of the assignees of the estate of Tubbs 
 (possessor in the first suit), pleading several letters and exhibits, and alleging 
 " that Charnock bought only as agent of Kirkpatrick, and that part of the pur- 
 chase-money had been paid to Charnock by his employer." A correspondence 
 was exhibited, which was asserted to have passed between them, for the purpose 
 of showing that Charnock acted as the agent of Kirkpatrick. The counsel on 
 the other side said that all the parties had become bankrupt, " and the question is 
 whether Charnock shall be sti-ipped of his legal title without retaining so much 
 as is due to him on the purchase." 
 
 The court said : " How does it appear that there is any money due to Charnock 
 on this account ? That may be a material fact ; because I am not disposed to 
 hold as a clear recognized principle, that in suits of possession, this court is abso- 
 lutely ministerial, and that it is, in all cases, bound to give its aid. If Mr. Char- 
 nock has ah'eady acted in such a manner as to put the property into the possession 
 and at the disposal of the person for whom he bought as agent, the coui-t may, 
 perhaps, think itself at liberty to hold its hand, and leave all the parties to find 
 their proper remedies in a court which'can look into the whole of the transaction, 
 and dispense all the justice that belongs to every part of it. But if the money 
 has not passed to Mr. Charnock for the payment of this purchase, which it is 
 alleged he made merely as agent, then the equity of the case will be against Mr. 
 Tubbs." The case stood over, and is reported as above in The Sisters, 5 Rob. 
 Adm. 155. See The Empress, Swabey, Adm. 160 ; The Victoria, id. 408. 
 
 2 The Frances, 2 Dods. 420. 
 
 ' The San Jose Indiano, 2 Gallis. 268, 284. 
 
 ♦ The Mary, 1 Mason, 365.
 
 CH. VII.] EIGHTS AND DUTIES OF SHIP-OWNERS. 239 
 
 sory suits, which prevailed in England, prevents the decisions of 
 their admiralty from applying fully to our own courts. Lord 
 Stowell, while asserting both the right and the practice of his 
 court to transfer possession from an actual holder, " sometimes by 
 its own movement, sometimes at the instance of other courts," 
 declares that it moves within very narrow limits, " if it proceeds 
 at all originally upon a question of title." ^ Thus, it would act 
 where the possessor had no right, or where force and violence or 
 fraud were manifest, but it would not enter into the question, if 
 there was a course of transactions involving fraud. Now we know 
 no good reason and no authoritative decision which would lead us 
 to suppose that an American court of admiralty would confine 
 itself within such narrow limits, or refuse to enter into a full in- 
 vestigation of any such case, in all its relations.^ It has, indeed, 
 been the admitted right and the practice of English admiralty, 
 from a remote period to the present day, to take jurisdiction where 
 part-owners cannot agree about the employment of a ship, and to 
 apply a remedy to the case which no other courts could apply. In 
 doing this, they have certain rules ; but we should not believe 
 that they would be recognized as of binding authority. Tlius, a 
 majority of part-owners, — that is, a majority in interest, — may 
 dispose of a ship as they will, provided they give the dissenting 
 minority adequate security for the safe return of the ship, in the 
 proper form and to the satisfaction of the court.^ But the reason 
 why this jurisdiction of admiralty has always been admitted, which 
 is " that ships are made to plough the seas and not to lie by the 
 walls," ^ applies just as strongly where a majority refuse to employ 
 her at all. In this way, they might overcome the opposition of a 
 minority, and compel them to let her proceed without any security 
 at all, if the court interfere only when the majority wished to send 
 her somewhere. It has, therefore, been asserted by our supreme 
 court that, if a majority refuse to employ her at all, the minority 
 may employ the ship on giving security. And if the interests for 
 
 ' The Pitt, 1 Hagg. Adm. 240, 243. 
 
 ^ This question is discussed at length by Mr. Justice Story, in the ease of The 
 Sch. Tilton, 5 Mason, 465, to which we refer the reader for a full and learned 
 exposition of the law on this subject. See also The Friendship, 2 Curtis, C. C. 
 426. 
 
 ^ Ouston V. Hebden, 1 Wilson, 101. 
 
 * Molloy, book 2, ch. 1, § 2.
 
 240 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 the employment and against it are equal, the court will give pos- 
 session to those part-owners who are for employment. This has, 
 as yet, only been asserted obiter ; and, in our judgment, the Eng- 
 lish authorities do not sustain it. But the assertion of the Supreme 
 Court has never been withdrawn, and we think it rests on good 
 reasons.^ 
 
 * In Steamboat Orleans v. Phoebus, 11 Pet. 175, Mr. Justice Story said : " The 
 majority of the owners have a right to employ the ship in such voyages as they 
 may please, giving a stipulation to the dissenting owners for the safe return of 
 the ship, if the latter, upon a proper libel filed in the admiralty, require it. And 
 the minority of the owners may employ the ship in the like manner, if the major- 
 ity decline to employ her at all. So the law is laid down in Lord Tenterden's 
 excellent treatise on Shipping." This may be law, and we think it is ; but the 
 point did not arise in this case, it being an application by an owner of one sixth 
 of the vessel, to have her sold, on the ground that the vessel was being used con- 
 trary to his wish and interest ; but we do not understand any passage in Abbott 
 on Shipping, as asserting all of this doctrine. The only passages we find, read as 
 follows : " The law of this country appears to possess an important advantage over 
 all the ordinances that have been cited, because, while it authorizes the majority 
 in value to employ the ship, 'upon any probable design,' it takes care to secure the 
 interest of the dissentient minority from being lost in the employment of which 
 they disapprove. And for this purpose, it has been the pi'actice of the court of 
 admiralty, from very remote times, to take a stij^ulation from those who desire to 
 send the ship on a voyage, in a sum equal to the value of the shares of those who 
 disapprove of the adventure, either to bring back and restore to them the ship, or 
 to pay to them the value of their shares. When this is done, the dissentient part- 
 owners bear no proportion of the expenses of the outfit, and are not entitled to a 
 share in the profits of the undertaking ; but the ship sails wholly at the charge 
 and risk, and for the profit of the others," . ..." If the minority happen to have 
 possession of the ship, and refuse to employ it, the majority also, may, by a similar 
 warrant, obtain possession of it, and send it to sea, upon giving such security." 
 . ..." It does not appear that any of the cases which I have just referred to, 
 arose upon an equal division of voices or interests in the ship." It seems that this 
 must mean, that when the majority have possession, they may not send her to sea 
 without giving security to the dissentient part-owners, if the latter demand it ; 
 and when the minority have possession of the ship, the majority may, on giving 
 security, take her and employ her. But nothing is said here, of the case of a 
 majority preferring to do nothing, and of the minority acquiring thereby a right 
 of control. If the court in Steamboat Orleans v. Phoebus mean to rely on 
 Abbott for their law, it would not seem that they have authority enough for all 
 their conclusions. 
 
 In 3 Kent Com. 152, it is also said : " If the part-owners be equally divided in 
 opinion in respect to the employment of the ship, either party may obtain the like 
 security from the other seeking to employ her." For this, he also refers to 
 Abbott, and in the next note, quotes from Steamboat Orleans v. Phoebus. Per-
 
 CH. VII.] RIGHTS AND DUTIES OF SHIP-OWNERS. 241 
 
 In England, a decree of possession lias been refused to one who 
 
 haps the mistake, if it be one, arose from this passage in Abbott, which immedi- 
 ately follows that last quoted : " but a learned civilian who wrote near the end of 
 the 17th century (Godolphin, Introduction to Admiralty Jurisdiction), having 
 spoken of this power of the majority, adds, that the same thing may also be 
 effected by the one part only, in case of equality in partnership ; this doctrine is 
 adopted by Molloy, and is followed in the practice of the court of admiralty." 
 The words, " and this doctrine is followed in the court of admiralty," seem to be 
 all that this assertion is based upon. It does not appear to be a quite sufficient 
 foundation ; and unless Abbott had means of information other than the reports 
 give us, he was mistaken. A short review of the cases will show whether this be 
 so or not. 
 
 In The New Draper, 4 Rob. Adm. 287, before dispossessing a master, and part- 
 owner to the amount of seven sixteenths shares, at the suit of nine sixteenths, the 
 court said, that for so small a majority to dispossess a part-owner in possession, 
 some reason was necessary. The reason was given and proved sufficient. It had 
 been argued, that all the parties proceeding in the suit was not authorized. The 
 court said there was no competent proof of that, though there had been time to 
 get it, and it could not hold loose conversations sufficient to defeat the consent 
 by which the suit had proceeded so long. Thus intimating, perhaps, that if proof 
 could have been produced, the case would have been diff'erent. Supposing two 
 sixteenths had withdrawn from the nine sixteenths, or that one sixteenth had 
 gone over to the seven sixteenths, what would have been the consequence ? 
 
 In The Valiant, 1 W. Rob. 64, 67, Dr. Lushington said : " I am of opinion that this 
 court can never proceed to change the possession, save at the application of a 
 majority of the whole of the legal interests." 
 
 The See Renter, 1 Dods. 22, was on application of a majority of the interests. 
 So was The John of London, 1 Hagg. Adm. 342. See remarks to this effect in 
 The Windsor Castle, 1 Notes of Cases, 118. 
 
 In The Egyptienne, 1 Hagg. Adm. 346, n., upon the fourth default being 
 granted by the court, it was moved to decree possession " to the sole executrix of 
 H. L. deceased, who was, whilst living, the true and lawful owner of one half part 
 or shai'e of the said sloop." " This motion was refused, but the court granted a 
 monition, calling upon the other interest to appear and show cause." The re- 
 porter then adds : " The monition was not extracted, and the cause has dropped." 
 
 In The Elizabeth & Jane, 1 W. Rob. 278, on a request by a moiety for a 
 monition to the other moiety to appear and show cause, the counsel for the peti- 
 tioners argued, that " unless possession was decreed as prayed, the vessel must 
 inevitably perish, contrary to all principles of justice and the policy of the mari- 
 time law." He cited The Egyptienne, and, among others, the very authorities 
 cited from the civil law by Abbott, namely, Godolphin's View of Admiralty Juris- 
 diction ; Molloy, lib. 2, c. 1 ; and, finally, Abbott on Shipping as above. 
 
 But Dr. Lushington considered that the court was not authorized to interfere in 
 any case, except where the majority in interest invoked the protection of the 
 court. This is a strong case, for it was decided Nov. 11, 1841, more than a year 
 
 VOL. II. 16
 
 242 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 owned only a moiety.^ We should expect that our courts would 
 decide any question of this kind which came before them, only as 
 its merits, and all its merits, required.^ Doubtless, if a majority 
 concur in desiring any especial employment, this would be a strong 
 primd facie reason in its favor. But if it were made clear to the 
 court that they wished to oppress the minority, or that the employ- 
 ment they proposed was certainly and in a high degree inexpe- 
 dient, because unsafe and foolish, we know not why they should 
 be bound to give her to the majority for any such purpose. And 
 if the majority would employ her in this way, or not at all, we 
 know no reason why she should not be either sold or given to the 
 minority, on their security. 
 
 It has been said that the majority employing a ship against the 
 will of the minority, must give security for her safe return.-^ The 
 
 after the statute of 3 & 4 Vict. c. 65 (7th Aug. 1840), and it seems to oppose 
 Abbott, Kent, and Story, at least as to English practice. But it will be noticed 
 that the court say they would send the parties to another tribunal ; probably, to 
 a court of chancery. In this country, would not the admiralty take the place of 
 the equity court ? It exercises many of the functions of a court of equity. And 
 it would be inequitable for one moiety to be subjected to a serious loss from the 
 obstinacy of the other moiety. 
 
 Upon the question of possession between dissentient part-owners, two principles 
 appear to meet and conflict ; namely, the rights of the majority, and public policy. 
 If a moiety is divided against a moiety, the law can give possession to either only 
 on public grounds. And if a court of admiralty can interfere, it is only on the 
 consideration j)ro bono publico ; and that may have lost something of its force, 
 since the present abundant supply of ships. Formerly ships were scarcer, and it 
 was in some measure an infringement on the rights of the mercantile public, a 
 breach of a duty, if not of a kind of implied conti-act, to let a ship He still; but 
 now there are, generally at least, more ships than there is business for. 
 
 There may be a difference, too, between taking the possession from one moiety 
 to give it to the other, and compelling the moiety already in possession to give 
 bonds. For the latter there may be reasons which do not apply to the former. 
 
 ^ The Egyptienne, 1 Hagg. Adm. 346; The Elizabeth & Jane, 1 W. Rob. 
 278. 
 
 ^ See Coverdale v. The North America, Crabbe, 420, and the case of The Vin- 
 cennes, decided by Wai'e, J., but not reported, cited post, near the end of c. x. 
 
 ' In The Marengo, 1 Sprague, 506, the owner of one fourth of a whale ship, 
 before any preparation had been made for a new voyage, gave notice to the 
 owners of the major part that he would not pay anything towards outfits or 
 expenses for a new voyage, but did not say in terms that he should dissent from 
 the voyage, or apply for security for the return of his quarter part, until the ves- 
 sel was nearly ready for sea ; but it did not appear that the major part-owners
 
 CH. VII.] RIGHTS AND DUTIES OF SHIP-OWNERS. 243 
 
 common bond taken in England from the majority goes no further ; 
 and it has been intimated in this country, that the recusant part- 
 owner should have no freight, because he makes no advances for 
 outfit, but may have his vessel secured to him, because, as he 
 makes no profit, he should incur no loss.^ This may be sound 
 doctrine in all of those cases in which the dissentient minority are 
 distinctly in fault. But there may be an honest difference of 
 opinion ; and although the majority in that case ought to prevail, 
 we see no reason why the minority should not be paid for the use of 
 their property ; and we should not expect that our courts would hold 
 themselves bound by any rule in admiralty, to confine the security 
 to the return of the ship in all cases. The authorities, however, 
 seem to be opposed to any payment for the use of the ship.^ 
 
 had been misled or subjected to any loss by such delay. Held, that the libellant 
 was entitled to security by stipulation for the return of the vessel, in double the 
 value of his interest, and that such return should be to the port of New Bedford 
 where all of the owners resided. The libellant requested that his part of the 
 outfits of the preceding voyage which remained on board should not be included 
 in the estimate of the value of his part of the vessel, and this request was 
 granted. 
 
 1 See Willings v. Blight, 2 Pet. Adm. 288. 
 
 ' The question, whether the bond should secure the freight as well as the ves- 
 sel, is one of importance ; and we find no decisive authority to determine it. In 
 The Apollo, 1 Hagg. Adm. 306, peremptory payment of the bond was decreed. 
 " Upon the question of jurisdiction, it is not unimportant to observe^ that the 
 court has repeatedly gone the length of taking those stipulations in favor of a 
 dissentient copartner, and upon his application that a security may be given for 
 the safe return of the vessel from the voyage to which he dissents, or otherwise 
 for the estimated value of his share." Nothing is said about freight. Nor do we 
 know that any admiralty court has declared that the bond may be taken for the 
 freight. The estimated profits of the voyage are a difficult subject of computa- 
 tion, and that is the objection Abbott (p. 102) takes to the remedy proposed by 
 the common-law courts for the use of the ship by the minority, without their 
 consent. The reason given that " as he bears no expense, he shall have no 
 profit," is hardly logical or sufficient, for from that it would seem, that his right 
 to profits depended on his expenditures for fitting out ; but the interest of the 
 money he has invested in the ship is not considered. In Gould v. Stanton, 16 
 Conn. 12, it was held that until a dissentient part-owner applies to the admiralty 
 court, he is liable for his proportion of the expenses already incurred in fitting 
 the vessel out, but after he seeks the protection of the court he is not liable for 
 any expenses, nor entitled to any earnings. 
 
 In The Marengo, U.' S. D. C. Mass., 1866, Loivell,\J., 1 Am. Law Review, 88, a 
 part-owner who had dissented from the employment of a vessel on a voyage, and
 
 244 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 Ill England, it is held that a British part-owner of a foreign 
 ship, cannot arrest the vessel for the purpose of obtaining bail to 
 be given for her safe return to her home port. Dr. Lushington, 
 however, intimated that if a dissenting part-owner had such a 
 remedy, by the law of the country to which the vessel belonged, 
 he would take the matter into consideration. ^ 
 
 The fact that a part-owner has not complied with the acts of 
 Congress, in delivering up the old license and obtaining a new one 
 on becoming an owner, does not prevent his applying to the court 
 for security for the safety of the vessel on a voyage not approved 
 by him, such omission not being for purposes of fraud or conceal- 
 ment.^ 
 
 Of the power of the court of admiralty to decree a sale on a 
 question between part-owners, we shall speak when we consider 
 the subject of Sale by order of Admiralty.^ A decree of a court of 
 admiralty, awarding possession to a person, does not have the effect 
 of a sale, and pass the vessel free from all prior incumbrances.'* 
 
 We have already considered at some length^ the right of the 
 
 had taken a stipulation for her safe return, after the voyage had ended prosper- 
 ously applied to the court to recover compensation for the use of the libellant's 
 part of the vessel, and the value of his part of such of the outfits remaining 
 from the preceding voyage, which had been used on the voyage in question. The 
 libellant argued that the law which authorized another pei'son to use his property 
 ought to require payment to be made for that use ; but the court held that the 
 libellant was not entitled to recover for the use of his part of the vessel, and that 
 a court of admiralty had no jurisdiction over a claim for the use of the outfits. 
 Loioell, J., said : " It would be more strictly accurate to say, that the law allowed 
 the respondents to use their own property, or to dictate the use of the common 
 property. The libellant's property happened to be, from its own nature, insepara- 
 ble from theirs ; but it may have been as great a hardship for them to be obliged 
 to use it, involving, as such use must, an outlay and risk beyond their proper pro- 
 portion, as it was for the libellant to have the vessel go upon a voyage which he 
 did not approve. In the average of cases it is equally probable that the majority 
 would be embarrassed by the necessity of equipping and providing the whole 
 vessel, as that the minority would be embarrassed by the necessity of providing 
 for their part." 
 
 1 The Graff Arthur Bernstorff, 2 Spinks. Adm. 30. 
 
 ^ Fox V. The Lodemia, Crabbe, 271. 
 
 ^ See post, c. x. 
 
 * The Granite State, 1 Sprague, 277. 
 
 ^ See ante, Vol. I. p. 95, n. 2. In Richardson v. Mellish, 3 Bing. 229, an action 
 was brought to recover damages for the breach of an agreement. The facts were
 
 CH. VII.] KIGHTS AND DUTIES OF SHIP-OWNERS. 245 
 
 majority to dispossess a master who is a part-owner, and refer to 
 what we have there said. It has been held in England, that if the 
 owner of the greater part of the vessel brings a cause of possession 
 against the master, who is owner of the remaining part, the master 
 will not be allowed to retain possession upon an offer of security 
 to the amount of his co-owner's interest.^ 
 
 Under the English statute of 1854, which gives the court of 
 admiralty power to remove the master of a vessel, if the court is 
 satisfied that the removal is necessary, it has been held that the 
 removal is necessary if the master has committed a fraudulent 
 
 as follows. The plaintiff was in command of a vessel then under charter to the 
 East India Company, of which the defendant was owner of twelve sixteenths. 
 The defendant proposed to the plaintiff, and the plaintiff assented, to resign the 
 command in favor of the defendant's nephew upon receiving in exchange the 
 command of another ship, owned by the defendant, and then chartered for one 
 voyage. If the company acceded to the exchange, it was agreed that in case the 
 nephew died or resigned before the expiration of the four voyages for which the 
 ship was chartered, the plaintiff should succeed him. As a further inducement 
 to the plaintifi" to resign the command, the defendant undertook to procure a 
 beneficial alteration in the destination of the second vessel. The exchange was 
 approved by the company, and was made. The plaintiff became bankrupt 
 on his return from his first voyage, and the nephew died in the course of his 
 second voyage. The defendant, having refused to appoint the plaintiff to succeed 
 the nephew, was sued. After a verdict for the plaintiff, the court held, on motion 
 for a new trial, that after verdict there was a sufficient consideration for the 
 defendant's agreement; that the agreement was not illegal; and that the jury 
 might give damages for the loss of the two remaining voyages, though the second 
 had not been accomplished at the time of the action. Best, C. J., said that there 
 was no fraud as against the East India Comjiany, for they were apprised of the 
 whole transaction, and in respect to fraud on the co-owners, he said : " It appears 
 on the record that Mr. Mellish is sole owner, and therefore he could commit no 
 fraud on co-owners. . . . . Is there any fraud in the proceeding ? Sift it from 
 the top to the bottom, and what does it amount to ? Nothing more than this : 
 that a man who has the sole interest in one ship, and is about to procure an inter- 
 est in another, makes a bargain with the captain of the ship to exchange it for 
 another. Is there any fi-aud in that ? I say, no. I am aware of the difference 
 between a legal and a moral fraud. I see no legal fraud. I see nothing in public 
 policy against this sort of exchange being effected. It appears to me there would 
 be nothing corrupt — nothing improper in it ; if not, there is nothing to arrest 
 the judgment on the ground of illegality." This language is somewhat ambig- 
 uous, as the defendant was not the sole owner in both vessels, and the case seems 
 to go to the extent that such a transaction is not a fraud as against co-owners. 
 See also the remarks of the court on the case of Card v. Hope, 2 B. & C. 661. 
 1 The Kent, Lush. Adm. 495.
 
 246 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 breach of trust against the owners, such as making a payment of 
 £ 5 on ship's account, and charging a larger sum as paid, and the 
 court has the power to make this removal on the application of 
 one part-owner, though another who is ship's husband objects.^ 
 
 SECTION II. 
 
 OF CONTRACTS OF AFFREIGHTMENT. 
 
 Whether goods are carried in a vessel on freight or by charter, 
 the same rules of law are applicable in admiralty, unless the char- 
 terer hires the vessel wholly, and mans, equips, and sails her him- 
 self. In this case he is his own carrier, and the owner of the 
 vessel has no lien on the cargo for the money due from the hirer, 
 but the charterer himself, being qiiasi owner, has a lien on the 
 goods of other persons, if he carries them in a ship he has thus 
 hired.2 
 
 The first question we shall consider is, as to the jurisdiction of 
 admiralty over questions of freight ; then the application of the 
 rules of law to these questions in civil cases ; then cases which 
 arise under prize and capture. 
 
 In treating of the law of shipping, it was stated that the ship- 
 owner has a lien on the cargo for the freight due in carrying it. 
 This is the rule at common law as well as in admiralty, but the 
 latter court, by its suits and processes in rem, has a more prompt 
 and effectual jurisdiction in all cases of lien. Originally, the 
 admiralty courts acted principally and possibly altogether in per- 
 sonam,^ and even now it is admitted that its faction m rem is subor- 
 
 * The Royalist, Brow. & L. Adm. 46. The part-owner making the application 
 was owner of one half the vessel. The master was owner of one quarter, and the 
 ship's husband was owner of the other quarter. 
 
 ' The two kinds of charter-parties are spoken of in our chapter on the law of 
 shipping. See ante, Vol. I. p. 278. 
 
 * In The Sch. Boston, 1 Sumner, 328, 341, it is said: "The proceeding need 
 not indeed be in rem, for if the thing has come to the possession or use or benefit 
 of the owner, a compensation may be equally decreed upon a libel in personam. 
 So is the doctrine in The Hope and The Trelawney, and it is founded in the very 
 nature of the admiralty jurisdiction, which primarily acted in personam; and now 
 acts in rem, only as auxiliary to its general authority." In The Hope, 3 Rob. 
 Adm. 215, the objection to calling the owners to answer personally in a suit for
 
 CH. VII.] CONTRACTS OF AFFREIGHTMENT. 247 
 
 dinate and auxiliary to its general authority, or its action in 
 personam. Nevertheless, it is quite certain that our admiralty 
 courts claim and hold complete jurisdiction in rem as well as in 
 personam over all maritime contracts in which there is any lien, 
 either by force of law, or by an express pledge of the property by 
 way of security.^ Nor is an actual possession by the officers of 
 the court, of the property libelled, essential to the exercise of this 
 jurisdiction ; for the court may order the property into the cus- 
 tody of the law, and will for the purposes of justice, presume it to 
 be in that custody unless the contrary appears.^ 
 
 salvage was overruled. In The Trelawney, 3 Rob. Adm. 216, note, it was said in 
 the argument : " The old practice has always been, in the first instance, against 
 the person ; and several of the first chapters of Gierke's Practice, direct the pro- 
 ceedings to be against the person." The court said : " As the objection has been 
 pressed, I shall reserve this matter for further consideration ; at present, it may 
 be sufficient to say that the court will be extremely unwilling to hold that 
 because a salvor has chosen to proceed in the manner most favorable and most 
 accommodating to the other party, he shall be deprived of substantial redress in 
 this court." 
 
 In The Meg Merrilies, 3 Hagg. Adm. 346, a monition in personam, was decreed 
 in a suit for salvage. In The Brig Draco, 2 Sumner, 157, 180, Story, J., said: 
 " My own opinion has been long unequivocally expressed, that the admiralty has 
 a rightful jurisdiction over all maritime contracts in personam ; but that, in cases 
 of that sort, it cannot proceed in rem, unless there be a maritime lien, or a positive 
 pledge as security." 
 
 ^ In Sheppard v. Taylor, 5 Pet. 675, it is said, p. 711 : " Over the subject of 
 seamen's wages, the admiralty has an undoubted jurisdiction in rem as well as in 
 personam." See also The Centurion, Ware, 477. 
 
 ^ In The Sch. Boliana, 1 Gallis. 75, the court said : " Further ; in the admi- 
 ralty, in all proceedings in rem, the court has a right to order the thing to be 
 taken into the custody of the law, and it is presumed to be in the custody of 
 the law, unless the contrary appears ; and when once a vessel is libelled, she 
 is considered as in the custody of the law and at the disposal of the court, 
 and monitions may be issued to persons having the actual custody, to obey 
 the injunctions of the court. The jurisdiction of the admiralty, however, is 
 not founded on that circumstance." (We suppose this means the circumstance of 
 possession.) " It is notorious, that a condemnation may take place in a prize 
 cause, even when the prize is lying within the port of an ally or a neutral, and 
 this right of jurisdiction and condemnation equally applies to municipal seizures, 
 in the name of the sovereign, while the property is in a neutral port. If, indeed, 
 the possession of the sovereign be lost by recapture, or escape, or voluntary dis- 
 charge, the courts may thereby lose the jurisdiction acquired by the seizure, but 
 such loss is not to be presumed. On the instance side of the admiraltj', its juris- 
 diction is not, in general, founded on possession of the thing. It may exercise
 
 248 LAW AND JURISDICTION OF ADMIRALTY. [BOOK U. 
 
 That the ship has a lien on the cargo for the freight, is an 
 ancient and a universal rule. And the application of the law of 
 lien to cases of freight, by the rules of admiralty, is, we think, 
 or at least should be, more liberal and less technical than by those 
 of common law. But while this lien of the ship upon the cargo 
 for its freight has never been denied, there is a great and irrecon- 
 cilable diversity of opinion as to the origin, the nature, and the 
 principles of this lien. The common-law courts of England have 
 been always disposed to regard it as a mere common-law lien. 
 This we should expect ; and the inevitable consequence has been 
 a strong disposition, perhaps a prevailing tendency, in our own 
 common-law courts, to follow the English example. But this has 
 led to some difficulties ; and some judges refer it rather to the 
 peculiar principles of the law merchant. These differences are 
 not technical merely or theoretical. They certainly may lead to 
 important results, as they have led to difficult questions. But 
 these questions are due, we apprehend, in some degree at least, to 
 the antagonism between the common law and the Roman civil 
 law. 
 
 There may be difficulties in regarding the claim of the ship 
 upon the cargo as precisely a " privilegium " of the civil law, and 
 as we have already said in our first volume, we do not call it a 
 privilegium} It certainly, however, was an essential part of the 
 law merchant before that became a part of the common law of 
 England. And then, and now on the continent of Europe, it was 
 and is distinctly recognized, although the common-law lien is 
 nearly unknown. A privilegium^ which is well enougli translated 
 by the phrase, " a privileged claim," differs from a lien in tliis : it 
 does not depend in any degree upon possession ; that is, it does 
 not require that tlie creditor should ever have possession of the 
 thing to wliicli he may look for security ; nor if he has sucli pos- 
 session and loses it, does he thereby lose his security. On the 
 
 complete jurisdiction as to seamen's wages, as to marine torts, as to collisions, 
 and perhaps as to salvage, without it, and rest entii-ely on the process in per- 
 sonam." 
 
 In the case of Jennings v, Carson, 4 Cranch, 2, Marshall, C. J., fully discussed 
 the principle that the vessel when once libelled is in the possession and under the 
 control of the court. After showing that this power is inherent in the courts, and 
 not conferred by statute (as had been contended in argument), he shows that it 
 necessarily results from the constitution and character of a court of admiralty. 
 
 * See ante, Vol. I. p. 176, n.
 
 CH. VII.] CONTRACTS OF AFFREIGHTMENT. 249 
 
 other hand, a lien at common law is simply the right of holding 
 on to something now in possession, until some claim or debt con- 
 nected with that thing is discharged. We do not call this lien of 
 the ship on the goods a ^^ privilegmm,'' because we cannot say that 
 it has no reference, either in origin or continuance, to possession. 
 But neither do we regard it merely as a common-law lien, because 
 we do not consider it as a mere right to retain possession, and as 
 wholly dependent on possession, and as terminated at once and 
 necessarily by the loss of possession. 
 
 What are called liens in the law of shipping are none of them, 
 we think, mere common-law liens ; or mere continuances of the 
 right of possession. And we have noticed that text-writers who, 
 in the investigation of the principles which govern them, have 
 gone back to the early or foreign law, adopt perhaps without 
 intention the phraseology there used, and call the liens "privi- 
 leges," or " privileged claims." Thus, Abbott, in the beginning of 
 the chapter on the ship-owners' lien for freight, speaks of the lien 
 of the cargo on the ship, as ranking " low in the precedence of 
 privileged claims,^'' and to illustrate this, enumerates nearly all the 
 known liens against the ship, ten in number, as of more force ; 
 and then speaks of the " privilege " of the ship-owner against the 
 goods for his freight. 
 
 This right of the ship-owner to hold the cargo as security for 
 the freight, we hold to be in part a privilegium^ and so far not a 
 mere lien ; and therefore it is not dependent, necessarily and 
 entirely, upon possession, or the right of possession. And the 
 law merchant has many such " privileged claims " ; as, for ex- 
 ample, contracts of bottomry or respondentia. No one would 
 think of calling the rights which these contracts give, merely liens, 
 or of treating them as liens at common law. Nor is there any 
 more reason in the right itself for calling that of the ship-owner 
 against the cargo a lien only. The cause of this common error, 
 for we regard it as an error, is quite obvious. The main differ- 
 ence between a privilegium and a lien is, as we have seen, this : 
 the former is not dependent upon possession, but the latter is. 
 Now the contract of bottomry, for example, actually provides that 
 the ship shall go away, out of the possession and immediate reach 
 of the creditor (for which departure it provides the means), and 
 that the debt itself shall be due only on condition that the ship
 
 250 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 performs the voyage safely. It would, therefore, be merely absurd 
 to say that the security of the creditor depends, in this case, upon 
 his retaining possession, for the very essence and purpose, and the 
 very words, of the contract, require the ship to pass out of his 
 possession. 
 
 But in the contract for freight, the bargain is that the goods 
 shall be put into the possession of the ship-owner, and shall 
 remain in his possession until the freight becomes due and is paid. 
 Here, therefore, the nature of the bargain, and the terms of the 
 contract, give to this " privileged claim " that element of posses- 
 sion which the common law gives to every lien. The essence of 
 the bargain is, that the ship shall take possession of the goods and 
 carry them, and then keep possession of them for the freight. 
 And if the parties agree that the goods shall be delivered first, 
 that is, shall pass out of the possession of the ship-owner before he 
 gets his freight, and that he shall then look, not to the goods, but 
 to the shipper for his freight, this would destroy the security by ter- 
 minating the lien; and thus, in effect, it appears, to convert the 
 privilege into a lien. Or, in other words, tliis right of the ship to 
 the goods seems, for these reasons, to be perfectly dependent upon 
 possession, and therefore, we think, it has been called and treated 
 as a mere lien. But there is still a difference between these two 
 views of this right, which is more than technical, and may be very 
 substantial. It is this. If this right be a lien, it is at once de- 
 stroyed by any agreement which provides that the possession of the 
 ship-owner shall terminate in any way before he gets his freight. 
 Not so, if it is, or so far as it is, a iJi^ivilegium. There the security 
 of the cargo will not be lost, unless it is a fair inference, from all 
 the terms and circumstances of the contract, that the parties in- 
 tended to take this security away ; or unless (whatever be their 
 intention) it could not be enforced without injury to an innocent 
 third party, who had purchased the cargo, or acquired rights over 
 it. Valin says, as we have seen, that the ordinance of Louis XIV. 
 in practice permitted the ship-owner to retain his right against the 
 cargo fifteen days after it had been delivered, unless it were in the 
 mean time sold to a purchaser without notice. We do not suppose 
 our admiralty courts would adopt this or any other exact rule ; 
 but wherever there was a bargain which provided that the shipper 
 or consignee might take the goods first, and afterwards pay for
 
 CH. VII.] CONTRACTS OF AFFREIGHTMENT. 251 
 
 them, but which, by reason of its terms or its circumstances, 
 should be construed as indicating no intention on the part of the 
 ship-owner to give up his security on the cargo, we should con- 
 fidently expect a court of admiralty to protect this security by a 
 process in rem against the cargo .^ 
 
 Abbott remarks : " The clause whereby the merchant binds the 
 cargo, does not give to the owner a lien on the cargo for the per- 
 formance of the covenants in the charter-party, nor for any pay- 
 ments for which he might not detain it in the absence of such a 
 clause, so that with us the clause is inoperative."^ We appre- 
 hend tliat an American court of admiralty, always of course 
 regarding the equities of each case, would generally enforce by 
 adequate process that security upon the cargo which the terms of 
 the contract would purport to give.^ But it is certaim that ex- 
 press agreements, as to this lien or claim, might make the ques- 
 tion whether they confirmed, or annulled, or in any way qualified 
 the claim as given by the maritime law, one of great difficulty. 
 And, if a ship-owner wlio has this privileged claim, delays long, 
 and without cause or excuse, to enforce it, he would be held in 
 this case, as in all other cases of maritime lien, to have renounced 
 or lost it.* 
 
 The owner of the cargo has a lien on the ship for any injury he 
 may sustain by the fault of the ship or of the master. And this 
 
 * See ante, Vol. I. p. 178, n. ; and tbe case of Sears v. Certain Bags of Linseed, 
 there referred to. 
 
 2 Abbott on Shipping, 286. 
 
 * See ante, Vol. I. p. 303, note. 
 
 * In The Rebecca, Ware, 188, 211, which was an action in rem against a ves- 
 sel for damages sustained by goods on board, it was contended that the shipper 
 had lost his lien by neglecting to enforce it within a reasonable time. The evi- 
 dence was, that the shipper resided in New York, and the vessel belonged to 
 Portland, in Maine ; that as soon as the shipper heard of the loss he ordered 
 process to be commenced, but before it could be served she left the port and did 
 not return for nine months, when she was immediately arrested. In the inter- 
 vening period, she was engaged in transporting rocks between the Hudson 
 River and the Delaware Breakwater, and passed the city of New York at 
 every trip, and that twice she stopped at that port for a few days ; but there was 
 no evidence that these facts were known to the libellant, and the court was of the 
 opinion that the circumstances were not strong enough to justify a presumption 
 of knowledge on the part of the libellant that the vessel was at New York, and 
 it was held that the delay was no bar to suit.
 
 252 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 lien may be enforced in admiralty by a suit in rem. And the 
 vessel is regarded as pledged to the owners of the goods from the 
 moment the misfortune happens, and their claim will be held prior 
 to the general creditors of the owners. ^ This liability of the ship 
 begins on the reception of the goods by the master or some one 
 authorized by him, either on board the ship or at a wliarf. 
 Therefore if while the goods, after coming into the custody of the 
 master, are being transported by him on a lighter in the usual 
 course of trade at that port, and are damaged, the vessel is liable 
 in rem? And though this lien will be lost by unreasonable delay, 
 it is not defeated by a bond fide sale with transfer of possession, if 
 made before the shipper had the opportunity of enforcing his lien. 
 This would be so, even if the purchaser were ignorant of the lien, 
 unless the delay had been such as to cause or substantially con- 
 tribute to the purchaser's buying a vessel thus encumbered.^ 
 
 Nor will acceptance of the goods by the consignee, or a receipt 
 that they are delivered in good order, defeat or waive this lien, 
 unless made with a knowledge of the injury, or under circum- 
 stances which fairly indicate an intention to waive the lien. 
 
 In a case where a person took passage on board a vessel, but 
 his personal baggage did not reach him before he sailed, and it 
 was afterwards put on board another vessel by the agent of the 
 libellant, and a bill of lading given therefor, but the baggage never 
 arrived, it was held that this vessel was liable in rem, the case 
 being considered as an ordinary shipment on freight, and the 
 owner of the vessel not a gratuitous bailee.* 
 
 * The Rebecca, Ware, 188, 211 ; The Phebe, Ware, 263 ; The Waldo, Daveis, 
 161 ; The Sch. Volunteer, 1 Sumner, 551 ; Certain Logs of Mahogany, 2 Sum- 
 ner, 569; Steamboat Robert Morris v. Williamson, 6 Ala. 50; and cases cited 
 ante, Vol. I. p. 173, n. 1. In Rich v. Lambert, 12 How. 347, which was an action 
 in rem, no question was made as to the jurisdiction of the court, except by Mr. 
 Justice Daniel^ who dissented on the ground that as the contract was made on 
 land, that is, in the city of Liverpool, and was to be fulfilled on land by the deliv- 
 ery of the merchandise in the city of Charleston, there was no jurisdiction in 
 admiralty. We should suppose, however, that most maritime contracts are made 
 on land ; and nearly all suppose an arrival somewhere, and the completion and 
 consummation of the contract on or after such arrival. 
 
 ■ The Bark Edwin, 1 Sprague, 477, s. C. nom. Bulkley v. Naumkeag Steam 
 Cotton Co. 24 How. 386. 
 ' The Rebecca, Ware, 188, 212. 
 
 * The Elvira Harbeck, 2 Blatchf. C. C. 336.
 
 CH. VII.] FREIGHT IN CASES OF PRIZE. 253 
 
 The jurisdiction of the admiralty over actions m personam for 
 the non-delivery of the cargo, has been fully sustained by the 
 Supreme Court of the United States. ^ But it has been held that, 
 where a vessel is detained in her port of lading by ice, and her 
 cargo is damaged before she can proceed, a shipper cannot, with- 
 out rescinding the contract, sustain a libel in rem for a breach of 
 the bill of lading, until the term for the performance of the con- 
 tract has expired.^ 
 
 The owners of a vessel let to the United States for a transport, 
 in time of war, have no lien for their charter-money on goods the 
 United States may put on board. ^ 
 
 SECTION III. 
 
 OF FREIGHT IN CASES OF PRIZE. 
 
 In reference to the questions of freight in cases of prize and 
 capture, they belong, for the most part, exclusively to admiralty. 
 The first question is this, if an enemy's cargo is captured in a 
 neutral vessel, has the vessel a claim on the captors for freight ? 
 It would seem that it has ; for the cargo is distinct from the 
 freight ; one belongs to an enemy and may be made prize of, but 
 the ship belongs to a friend and must not be taken.* But the rule 
 
 ^ New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. 
 
 " Jones V. The Floating Zephyr, U. S. C. C. Penn., 7 Am. Law Reg. 494. 
 The vessel, in this case, was lying at the port of Philadelphia, bound for Liverpool. 
 In the month of December, a number of barrels of flour belonging to the libel- 
 lant were shipped on board and bills of lading given. A quantity of corn was 
 also shipped by other persons, by which it was alleged the flour was damaged. 
 In the month of February following, the flour was taken on shore by order of the 
 master, and surveyed and ordered to be reshipped. The vessel sailed after the 
 filing of the libel in this case, and delivered her cargo to its consignees. The 
 court held that the action was prematurely brought, and the libel was dismissed. 
 This decision is, however, we think, open to the objection that at the time the suit 
 was brought, the vessel had incapacitated herself from delivering the flour in 
 good condition, and therefore an action would lie immediately. See 2 Parsons on 
 Contracts, 5th ed. 666. 
 
 ' The Undaunted, 2 Sprague, 194. 
 
 * In a note to The Atlas, 3 Rob. Adm. 304, in answer to an assertion of M. 
 Schlegel, a French author, that the English never gave freight to a neutral ves- 
 sel, the reporter makes the following reply : " So long back as the year 1640, it is 
 asserted, on the authority of Sir H. Martin, who was an eminent practitioner and 
 afterwards judge of the court of admiralty, that it had never been the practice to
 
 254 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 is limited by the reason of it ; and if the cargo be contraband, ^ or 
 the voyage be quasi contraband,^ or undertaken to relieve an 
 enemy from the distress caused by war, as a carrying on of her 
 coasting trade,^ or colonial trade,* then, it seems, the neutral 
 
 condemn neutral ships for having enemy's goods on board, but the freight of the 
 enemy's goods condemned was always paid. Sydn. St. Papers, vol. 2, p. 662. In 
 the year 1 704, in the court books of the admiralty, there is the case of The Pearl, 
 Thompson, in which a question was raised on this point, though the particular 
 circumstances on which the demand was resisted do not appear. In the result, 
 freight was decreed to the ship, restored on a claim of a Mr. Eliason, a Danish 
 merchant, although the cargo claimed for him also was condemned. In the year 
 1753, in the celebrated answer to the Prussian memorial, it is asserted, that in the 
 case of ships restored, freight was paid for such of the goods as manifestly be- 
 longed to the enemy and were condemned ; and among the list of Prussian cases 
 referred to, there is a class described, ' ships restored with freight according to the 
 bills of lading for such goods which were found to be the property of enemy, 
 and condemned as prize.' Conformable to the ancient principle of the Consolato 
 and these precedents, has been the invariable practice of the British court of 
 admiralty during the last and the present war, unless in cases where some circum- 
 stance of malajides occurs," etc., etc. 
 
 The general rule and its exceptions are thus stated by Mr. Justice Story in The 
 Commercen, 2 Gallis. 261, 264, 1 Wheat. 382 : " The general rule, that the neutral 
 carrier of enemy's property is entitled to his freight, is now too firmly established 
 to admit of discussion. But to this rule there are many exceptions. If the neu- 
 tral be guilty of fraudulent or unneutral conduct, or have interposed himself to 
 assist the enemy in carrying on the war, he is justly deemed to have forfeited his 
 title to freight. Hence, the carrying of contraband goods to the enemy, the en- 
 gaging in the coasting or colonial trade of the enemy, the spohation of papers, 
 and the fraudulent suppression of an enemy's interest, have been held to affect 
 the neutral with the forfeiture of freight. And in cases of a more flagrant char- 
 acter, such as carrying despatches or military passengers for the enemy, or an 
 engagement in the transport service of the enemy, or a breach of blockade, the 
 penalty of confiscation of the vessel has been also inflicted." See also The 
 Prosper, Edw. Adm. 72. 
 
 » The Sarah Christina, 1 Rob. Adm. 237; The Mercurius, 1 Rob. Adm. 288. 
 
 ^ In The Commercen, 2 Gallis. 261, it was held that a neutral cannot lawfully 
 be the carrier of provisions for the supply of the army of a belligerent, although 
 such army may be in a neutral country and directly engaged in hostilities against 
 a third belligerent. This was affirmed by the Supreme Court, 1 AVheat. 882. 
 Marshall, C. J., Livingston, J., and Johnson, J., dissenting. 
 
 ' The Atlas, 3 Rob. Adm. 299, 304 ; The Emanuel, 1 Rob. Adm. 296 ; The 
 Allegoria, 4 Rob. Adm. 202, n. In The Wilhelmina, 2 Rob. Adm. 101, n., it was 
 held that this rule did not apply to voyages from the port of one enemy to the 
 port of another, if no fraudulent or false proceedings appeared in the conduct of 
 the ship. 
 
 * The Immanuel, 2 Rob. Adm. 186 ; The Anna Catharina, 4 Rob. Adm. 107 *,
 
 CH. VII.] FREIGHT IN CASES OF PRIZE. 255 
 
 vessel forfeits her freight. And the vessel is not entitled to 
 freight, if the master ceases to act as a neutral, as by the spolia- 
 tion of papers.^ Capture is considered equivalent to delivery 
 where the captor possesses himself fully of the riglit of the enemy 
 and represents him, and by the capture prevents the ship from 
 earning her freight, and the neutral is in no fault.^ 
 
 But if a vessel goes into port to repair, and is there seized and 
 required to prove her neutrality, and the delay in doing this makes 
 it necessary to transfer the goods before she is liberated, she has 
 earned only a ipro rata freight, because it was not the fault of the 
 goods, but her own distress, which caused the transshipment.^ 
 
 The Minerva, 3 Eob. Adm. 229, note ; The Anna Dorothea, 3 Rob. Adm. 233, 
 note. In The Rose, 2 Rob. Adm. 206, the voyage was from the port of one enemy 
 to the colony of another enemy allied in the war. It was held that there was 
 no solid distinction between this case and those above cited. The ship also is 
 sometimes confiscated for trading between the mother country and a colony of 
 the enemy. The Jonge Thomas, 3 Rob. Adm. 233, note ; The Phoenix, 3 Rob. 
 Adm. 186 ; The Star, 3 Rob. Adm. 193, note. 
 
 ^ The Rising Sun, 2 Rob. Adm. 104. It was objected, in this case, that the 
 owners were at a great distance and in no way privy to the act of the master, but 
 the court said, that " men must abide the consequences of their own misplaced 
 confidence." 
 
 - The Racehorse, 3 Rob. Adm. 101, was a case of a British ship freighted from 
 Liverpool in ballast to St. Martin's and Lisbon, to bring a cargo of fruit to Ire- 
 land, taken on her return voyage by a French privateer off Falmouth, and after- 
 wards recaptured and brought to Falmouth. The ship was restored by consent, 
 on the 2d of July; the cargo was not restored until 16th November. The court 
 held that the whole freight was due, on the ground that it was not the ship's 
 duty to stay by and see what would be done with the cargo. 
 
 In The Martha, 3 Rob. Adm. 106, note, an American ship from America to 
 Amsterdam was captured in the Channel. The ship was restored with freight. 
 One parcel of goods for which a claim had been given was restored, but had to 
 be delivered in order to get at the rest. The claimant demanded of the mas- 
 ter that he should take them on board again, and offered to pay the expense of 
 transshipment. This he refused to do, and demanded his whole freight. The 
 court, Sir William Scott, gave it, on the authority of the case of The Hamilton, 
 decided by his predecessor. See also The Hoffnung, 6 Rob. Adm. 231. 
 
 * In The Copenhagen, 1 Rob. Adm. 289, the ship was obliged to put into a 
 port short of her destination for repairs ; the ship and cargo, being seized as 
 prize, were restored, but the ship claimed full freight as in a case of capture. 
 Freight pro rata was given. The court said : " The maxim that capture is 
 delivery, is by no means to be taken in the general way in which it has been laid 
 down (by counsel for the ship). It is by no means true, except where the captor 
 succeeds fully to the rights of the enemy, and represents him as to those rights.
 
 256 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 Freight is not payable when the ship is lost by accident or superior 
 force. ^ 
 
 In one case, where the incapacity to proceed fell on both ship 
 and cargo, the court on principles of equity decreed that the loss 
 should be divided, and that a moiety of the freight should be 
 paid.^ If the neutral sail under a license, no freight is allowed 
 on articles not enumerated in the license.^ 
 
 The rule, that freight is not earned unless the goods are carried 
 to their destination, applies to capture. But if neutral goods are 
 in an enemy's ship and the captor in fact takes the goods where 
 they should have been carried,^ and even if he does this substan- 
 
 If a neutral vessel, having enemy's goods, is taken, the captor 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 com- 
 pletion of the voyage, yet as the captor by his act of seizure has prevented its 
 completion, his seizure shall operate 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. But if ship and cargo, being both neutral, are restored, the consequence 
 is only that the ship must proceed on and complete her voyage before she can 
 demand her freight. If the cargo is restored while the ship continues under 
 detention, still less reason is there to contend that she has earned her freight. 
 Such is the present case, in which the ship has failed in her contract ; and this is 
 not owing to the cargo in any manner, but to her own state of distress originally, 
 and afterwards to her dubious character. Under these circumstances, it is impos- 
 sible to say that she has earned more than a freight pro rata itineris. 
 
 ^ In The Saratoga, 2 Gallis. 1G4, 178, it is said : "It seems to be a doctrine of 
 our law, that if a voyage be broken up by an interdiction of commerce with the 
 port of destination, after its commencement, no freight is payable. And the same 
 rule is applied to cases where the voyage is lost by accident or superior force. In 
 short, the principle seems to be, that there must be an actual delivery of the cargo 
 at the port of destination, to entitle the party to his full freight. See also cases 
 ante, Vol. I. p. 220, 22L 
 
 2 The Friends, Edw. Adm. 246. 
 
 ' The Jonge Clara, Edw. Adm. 371. 
 
 * The Vreyheid, before the House of Lords, 1784, cited 4 Rob. Adm. 282 ; The 
 Fortuna, 4 Rob. Adm. 278. In The Fortuna, Edw. Adm, 56, a Danish ship 
 going to Portugal with a Portuguese cargo was legally detained under an em- 
 bargo act, and brought to England. The goods at the time, might legally have 
 been sent on, but afterwards, hostilities having commenced between England and 
 Portugal, they could not be forwarded, and were sold in England. It was held, 
 under these circumstances, that the captors were not entitled to their freight. It 
 was said that had an actual war prevented the goods from going on at the time 
 of their seizure, freight might have been allowed, but that " there was not an exist-
 
 CH. VII.] FREIGHT IN CASES OF PRIZE. 257 
 
 tially, though not precisely, as where English captors took, in a 
 Dutch ship, and carried to England, English goods which had been 
 sent from a Dutch colony in a Dutch ship to Holland, with the in- 
 tention of remitting the proceeds to London, because there was no 
 other way to get them from that colony to England, he is entitled 
 to his freight ; i he will have freight, even if he takes the goods to 
 another port in the same country to which they were to go, unless, 
 perhaps, this one substantially differed from their port of destina- 
 tion. Nor will the court 'of admiralty look carefully at the ex- 
 pense or profit of the thing, in applying this rule.^ If the captor, 
 however, injure the property, he is liable to a claim by way of 
 offset ; and if a ship is ordered to be restored in value, because 
 wrongfully taken, full freight will be decreed against the captor, 
 although only a part of the goods be saved, if the loss is owing to 
 the negligence of the prize-master.^ But a captor held to pay 
 
 ing incapacity upon them at the time of capture." It was also held that the sale 
 in England did not make that country their place of destination within the rule. 
 
 ' The Diana, 5 Rob. Adra. 67. 
 
 2 In The Vrow Henrietta, 5 Rob. Adm. 75, note, it was objected that the 
 captors had not brought the goods to London, to which port they were destined, 
 but to Plymouth, but the court held they were bound to pay for freight. And in 
 the case of The Ship Ann Green, 1 Gallis. 274, 294, Mr. Justice Storij held that 
 captors who brought goods to Boston, which were destined to New York, were 
 entitled to their freight. 
 
 ^ In Der Mohr, 4 Rob. Adm. 314, the ship had been decreed to be restored in 
 value, with freight to be a charge on the cargo, which was ultimately condemned 
 for want of further proof. But the cargo had been lost, together with the ship, 
 by the negligence of the prize-master. The captors were held liable for the 
 freight, the cargo, the fund from which it was to be paid, being lost. Sir William 
 Scott said : " On the principle of law, however, I am of opinion that the freight 
 must be taken as having become as much the property of the neutral claimant, as 
 the ship itself. The captor took cum onere. If the loss had happened by acci- 
 dent only in bringing in, the captor, having made a justifiable seizure, would not 
 have been liable to any restitution, either for the freight or for the ship ; but the 
 court has already pronounced this loss not to have arisen from any casual misfor- 
 tune. The freight is as much a part of the loss as the ship, for he was bound to 
 answer equally for both. The captor has, by taking possession of the whole 
 cargo, deprived the claimant of the fund to which his security was fixed. He was 
 bound to bring in that cargo, subject to the demand for freight. He was 
 just as answerable for the freight of the voyage as for the ship which was to earn 
 it, or which was rather to be considered as having already earned it. In the 
 room of this fund, the captor .has substituted his own personal responsibility, for 
 the loss accrues by the fault of his agent. I see no distinction under which I can 
 VOL. II. 17
 
 258 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 freight will not be bound in all cases by the terms of the charter- 
 party, but if those are excessively high from the influence of pecu- 
 liar circumstances, a different and more equitable rule will be 
 applied.^ In a case of recapture, and a claim of salvage thereon, 
 if a commencement of the voyage takes place and it is afterwards 
 completed, the whole freight is included in the valuation of the 
 property on which salvage is decreed.^ Where a vessel, fitted out 
 in one of our ports in breach of neutrality, was captured and resti- 
 tution decreed, rejecting the claim of an alleged hond fide pur- 
 chaser in a foreign port, it was said, that he would have been 
 entitled to repayment of the freight which he had paid on the 
 captured goods, if the claim had been presented to the court in 
 time ; and the same was said of an innocent neutral carrier, the 
 goods having been transshipped in a foreign port.^ 
 
 Where vessels were seized in port preparatory to hostilities 
 against the country to which they belonged, it was held that the 
 freight due went to the crown, on the ground that it had suc- 
 ceeded to the rights of the ship-owners.* But the owners were 
 permitted to deduct from the cargo money they had advanced to 
 the master for repairs, it being an advance of freight and not an 
 average.^ 
 
 In cases of capture and restoration of the property captured, it 
 is the general rule that the freight (being made a charge on the 
 cargo) takes precedence of the claim of the captor for his ex- 
 penses. But it is also said that where the captor is entitled to his 
 expenses, his claim is prior to that of the neutral master for his 
 expenses.^ 
 
 pronounce that the claimant is not as much entitled to the freight as to the 
 vessel." (The captor was held to be liable for the vessel in the same case. 3 
 Rob. Adm. 129.) 
 
 » The Twilling Riget, 5 Rob. Adm. 82. 
 
 ' The Dorothy Foster, 6 Rob. Adm. 88. The vessel, in this case, had sailed 
 from a port in the island of Jamaica, and was on her way to another port for the 
 purpose of joining convoy, and it was held that the voyage had commenced 
 within the rule. But it was said that had the vessel been cut out of port and then 
 recaptured, no salvage would have been allowed on the expected freight. It 
 may be questioned, however, how far this distinction comports with the recent 
 doctrine, that the lien for freight exists the moment the goods are put on board. 
 
 * The Santa Maria, 10 Wheat. 431. 
 
 * The Prosper, Edw. Adm. 72. 
 
 * The Constantia Harlessen, Edw. Adm. 232. 
 
 ' In The Bremen Flugge, 4 Rob. Adm. 90, the court held that freight was a
 
 CH. VII.] FREIGHT IN CASES OF PRIZE. 259 
 
 Prize cargoes, sent in for adjudication in a transport chartered 
 by the government, are not chargeable with the payment of freight, 
 or any part of the charter-money, in favor of the owners of the 
 vessel.^ 
 
 lien on the cargo which the captors were obliged to satisfy, as they took the cargo 
 cum onere ; but that the expenses of the captor took the priority of the expenses 
 of the neutral master. In The Vrow Henrica, 4 Rob. Adm. 343, the court 
 expressly sustained the decision in The Bremen Flugge. Sir Williayn Scott said : 
 " I have considered the cases which I directed to be looked up, and I see no 
 reason to alter the opinion which I before expressed, that freight is, in all ordi- 
 nary cases, a lien which is to take place of all others. The captor takes cum 
 onere. It is the allowed privilege of neutral trade to carry the property of the 
 enemy, subject to its capture, and so the temporary detention of his vessel ; and 
 if the party does not prevaricate or conduct himself in any respect with ill faith, 
 he is entitled to his freight. This is the rule I am disposed to apply in all cases of 
 neutral ships carrying on their ordinary commerce." 
 ' The Undaunted, 2 Sprague, 194,
 
 260 LAW. AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 CHAPTER YIII. 
 
 OF SALVAGE. 
 
 SECTION I. 
 
 OF THE GENERAL PRINCIPLES OF SALVAGE. 
 
 Salvage is eminently a subject for admiralty jurisdiction,^ and 
 we may state, that it has been decided that no action will lie at 
 common law, unless the salvor can prove a contract with the 
 owner of the property saved or with his agent.^ 
 
 If the court of admiralty has jurisdiction over the property, for 
 the purpose of decreeing salvage, it has the power to determine to 
 whom the residue of the property shall be delivered, and may be 
 obliged to decide whether a capture by a foreign nation is valid or 
 not.3 
 
 The word salvage is used in two senses ; it sometimes means 
 the property which is saved from a wrecked vessel, and frequently 
 has this meaning among insurers and in insurance. But in admi- 
 ralty, and generally in the law merchant, it means the compen- 
 sation which is earned by persons who voluntarily assist in saving 
 a ship or her cargo from peril ; and we use the word in this last 
 sense in this chapter. 
 
 The interest of co-salvors is not joint but several ; and payment 
 or satisfaction to any one is not so to any other. If, therefore, 
 
 ' See ante, p. 177, n. 1. 
 
 * LIpson V. Harrison, Q. B. 1854, 24 Eng. L. & Eq. 208. The sailor in this 
 case, was ordered by his captain to leave Lis vessel, and go in a boat fourteen 
 miles to the assistance of another vessel which was stranded, and to place himself 
 under the command of the captain of the other vessel. It was held, under these 
 circumstances, that he could not maintain an action against the owner of the ship 
 saved, for his services. 
 
 ^ M'Donough v. Dannery, 3 Dall. 188.
 
 CH. VIIl] SALVAGE. =. 261 
 
 payment is made to the master, although his receipt would bind 
 himself and his owners, and an action would lie against him by 
 the seamen for their shares,^ yet it is also true, that tlie seamen 
 may bring an action against the property saved, if the settlement 
 was made with the master without their consent.^ 
 
 The court should not give different parts or parcels of the ship 
 or cargo to different salvors, or different proportions of specific 
 parts ; ^ and this, we believe, is never done in this country ; '^ but 
 different proportions of, or sums from, the value of the whole 
 property saved. And sometimes a specific sum is given.^ 
 
 A salvor in possession has a qualified property in the thing 
 saved, whether ship or cargo, or both. And it is not necessary 
 that he should remain in actual possession, in order to maintain 
 his rights or preserve this qualified property.^ Nor should he do 
 so, to the detriment of the property or the inconvenience of the 
 master and crew.'^ Salvors cannot be divested of this legal inter- 
 est in the property saved, until it is taken from them by adjudica- 
 tion in a court of competent authority.^ The owner does not lose 
 his right of property by the salvage, but it is qualified by the sal- 
 
 ^ The Centurion, Ware, 477. 
 
 * The Britain, 1 W. Rob. 40 ; The Sarah Jane, 2 W. Rob. 110. But see 9 & 
 10 Vict. c. 99, § 26. 
 
 » The Vesta, 2 Hagg. Adm. 189. 
 
 * The practice in this country is to give a proportion of the value of the prop- 
 erty and not a part of the property itself. Hennessey v. The Versailles, 1 Curtis, 
 C. C. 363. The power of the court, however, to adjudge the latter is recognized 
 by a dictum in M'Donough v. Dannery, 3 Dall. 188. " Admiralty courts having the 
 thing saved under their control, may either adjudge a portion of such thing to the 
 persons who have saved it, or a sum of money to be paid by the proprietor or 
 from the produce of the thing saved." See also The Inca, Swabey, Adm. 370. 
 
 ^ McGinnis v. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. 
 359. 
 
 * The Maria, Edw. Adm. 175; The Amethyst, Daveis, 20; The Bee, Ware, 
 332; The Brig John Gilpin, Olcott, Adm. 77; Eads v. The Steamboat H. D. 
 Bacon, 1 Newb. Adm. 274; A Box of Bullion, 1 Sprague, 57; The Missouri's 
 Cargo, 1 Sprague, 260, 272. See dicta to the contrary in Brevoor v. The Fair 
 American, 1 Pet. Adm. 87, 94; Packard v. The Sloop Louisa, 2 Woodb. & M. 
 48, 58. 
 
 ' See The Eleanora Charlotta, 1 Hagg. Adm. 156 ; The Lady Worsley, 2 
 Spinks, Adm. 253. 
 " The Blenden Hall, 1 Dods. 414.
 
 262 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 vor's rigbt,^ and the interest of the owners is sufficient to entitle 
 them to oppose the claim of a co-salvor.^ 
 
 If the amount claimed by salvors is not too great, the master 
 may relieve his property from their lien by paying them at once. 
 If this be done in the honest exercise of a reasonable discretion, 
 he will be justified.^ If the demand seems to him exorbitant, he 
 cannot turn the salvors off, but should proceed to the nearest and 
 most convenient port where he may have adjudication. And in 
 selecting his port, he must consult their rights and convenience, 
 as well as his own. Otherwise, they may lawfully resist him and 
 determine for themselves the course of the ship. But this power 
 can exist only in an extreme case.* 
 
 So great is tlie power of the salvors over a vessel, that it has 
 been held, where a vessel came into collision with another, and all 
 the crew, with the exception of two, escaped on board the other 
 vessel, that a third vessel which fell in with the one thus partly 
 abandoned was not afterwards obliged to delay her course for the 
 purpose of taking on board again the crew of that vessel.^ 
 
 As all salvors may join in one libel, they should so join to save 
 expense ; and if different libels are filed unnecessarily, the costs 
 will not be charged to the proceeds of the salvage property.^ But 
 
 1 The Bee, Ware, 332. 
 
 ' The Blenden Hall, 1 Dods. 414. 
 
 ' See Houseman v. Sch. North Carolina, 15 Pet. 40, 45. 
 
 * See The Houthandel, 1 Spinks, 25. And after a vessel has been brought into 
 port by salvors, her owners have no right to take her to another port, without the 
 consent of the salvors. The Nicolai Heinrich, 22 Eng. L. & Eq. 615. Due 
 regard is also to be paid by the salvors to the conveilience of the owners, in deter- 
 mining to what port the vessel is to be taken, when the salvage service is per- 
 formed at sea. The Eleanora Charlotta, 1 Hagg. Adm. 156. In the case of 
 L'Esperance, 1 Dods. 46, a vessel bound from Dantzic to London struck upon 
 the Lemon and Ower Bank, and was abandoned by her crew. Two days after- 
 wards she was discovered in latitude 53° 17' N., and longitude 2° 24' E. by an 
 English sloop-of-war bound to Heligoland, to which place the wreck was towed. 
 Her papers were not on board, and there were no means of telling to what port she 
 was going. The owners contended that she should have been taken into an English 
 port, but the court held that the salvors were justified in taking her to Heligoland. 
 
 * The Orbona, 1 Spinks, 161. 
 
 * The Ship Henry Ewbank, 1 Sumner, 400 ; The Sch. Boston, 1 Sumner, 328. 
 And in Hessian v. The Edward Howard, 1 Newb. Adm. 522, the court said it was 
 the duty of salvors in bringing a suit for salvage, to make all the co-salvors par- 
 ties, in order in one final decree to do full justice to all concerned.
 
 CH. VIII.] SALVAGE. 263 
 
 if the parties stand upon adverse rights, as where the salvage has 
 been partly performed by one vessel and completed by another, 
 each may file a libel.^ But a claim of the ship-owners for freight, 
 or general average on the property saved, should be made in a 
 separate libel, because this is only a claim on the balance of pro- 
 ceeds after the salvage is paid, and is a claim against the owners 
 of the cargo, with which the salvors may have nothing to do.^ If 
 the property saved belongs to the same person, the salvors may, 
 by process against a part, enforce their lien upon the whole.^ 
 
 Co-shippers should not interfere by a claim of the proceeds for 
 the benefit of other shippers with whom they have no privity of 
 interest, and from whom they have no authority to represent 
 them.* 
 
 ' If a settlement is made with several salvors, and the money 
 paid over to their agent, a salvor who is not included in the settle- 
 ment is not entitled, either at common law or in England under 
 the statutes of 3 & 4 Vict. c. 65, and 9 & 10 Yict. c. 99, to a 
 monition directing such agent to bring the money into court for 
 distribution among all the salvors.^ 
 
 If a vessel while engaged in performing a salvage service, or 
 wliile assisting another vessel under circumstances which prevent 
 the assistance from being considered as salvage, unintentionally 
 and unavoidably injures such vessel, she is not liable in damages.^ 
 
 A vessel is not liable for the salvage due from the cargo, nor 
 the cargo for that due from the vessel, but each must pay its own 
 portion.'^ 
 
 * The Ship Henry Ewbank, 1 Sumner, 400, 408. But if separate libels are 
 filed, the actions may be consolidated by the court for its own convenience. The 
 London Merchant, 3 Hagg. Adm. 394 ; Rich v. Lambert, 12 How. 347, 353. 
 
 >= The Sybil, 4 Wheat. 98. 
 
 ^ The Missouri's Cargo, 1 Sprague, 260. 
 
 * Stratton v. Jarvis, 8 Pet. 4. 
 
 * The Tenth of June, 29 Eng. L. & Eq. 585. 
 
 » Stevens v. The S. W. Downs, 1 Newb. Adm. 458. 
 ' The Pyrennee, Brow. & L. Adm. 189.
 
 264 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 SECTION 11. 
 WHO MAY BE SALVORS. 
 
 The salvage services must be performed by persons not bound 
 by their legal duty to render them.^ And if such salvors perform 
 such service, and all their acts are legal, the law refuses to in- 
 quire very carefully into the motives which influence their con- 
 duct ; although it cannot be doubted that some inquiry of this 
 kind may sometimes be proper, when the court is considering 
 whether any compensation shall be paid, or if any compensation, 
 what.^ 
 
 It has been made a question whether persons forcibly taking 
 possession of a vessel against the will of the master can claim as 
 salvors.^ But we think it must be obvious and certain that, on 
 the one hand, the master's reluctance or resistance to the saving 
 of the property under his charge should not bar the claims of sal- 
 vors, but rather enhance them, if their services were necessary, or 
 in all respects meritorious and useful.* But, on the other, his 
 opposition would be a circumstance of great weight in determining 
 whether their services were necessary or meritorious. 
 
 It is a question of much importance, who may be salvors ; or 
 rather, who may not be, because already bound by legal obligation 
 to render the same service. Thus, a crew, generally, cannot claim 
 as salvors of their own ship or cargo ; not only because it is their 
 duty to save her, if possible, but because it would be most unwise 
 to tempt them to let the ship and cargo get into a position of 
 extreme danger, that then, by extreme exertion, they might claim 
 salvage.^ 
 
 * The Neptune, 1 Hagg. Adm. 227, 236. In The Lady Worsley, 2 Spinks, 
 Adm. 253, it was held that the commercial agent of the owners of a vessel on a 
 foreign coast could not, by getting the vessel off the rocks when she had been 
 abandoned by her crew, entitle himself to salvage compensation. The vessel in 
 this case was wrecked on the coast of Africa. See post, p. 272, n. 5. 
 
 ' In the case of Le Tigre, 3 Wash. C, C. 567, a revenue officer, who intended 
 to do merely his official duty, transcended his authority and seized a vessel, 
 whereby she was saved for the owners. It was held that the officer was entitled 
 to salvage, although when he seized it he did it from another motive. 
 
 » Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651. 
 
 * See The Jonge Bastiaan, 5 Rob. Adm. 322 ; The Bee, AVare, 332. 
 
 * Miller v. Kelly, Abbott, Adm. 564. This question was considered at length
 
 
 
 CH. Vlir.] WHO MAY BE SALVORS. 265 
 
 This is certaiirly the general rule, and it will be found that the 
 usual exception to it is, where the contract of the seamen is at an 
 end, either by an abandonment of the ship^ or by their discharge 
 
 by Curtis, J., in the case of The Seh. John Perkins, U. S. C. C. Mass., 21 Law 
 Eep. 87, and in the cases of The Steamer Acorn and The Sch. Speedwell, 21 
 Law Kep. 99. The learned judge, on p. 93, said : " Though I am not prepared 
 to deny that cases may arise in which the crew may become salvors of the vessel, 
 it is not easy for me to foresee how such a case can arise, while their contract 
 continues in force." The vessels in these cases were enclosed in a field of ice in 
 a storm, and were temporarily deserted by most of their crews, who intended to 
 return when the gale abated. The alleged salvage services consisted, in one 
 instance, in one of the crew cutting the cable of the vessel to avoid an impending 
 collision with a vessel that was adrift, and in the other case, in avoiding a collision 
 by putting out fenders. Under these circumstances, Judge Ware decreed sal- 
 vage, 19 Law Rep. 490, but this decree was reversed in the circuit court, 21 Law 
 Rep. 87. See also Beane v. The Mayurka, 2 Curtis, C. C. 72, where it Avas held 
 that the slipping of a cable by one vessel to prevent a collision, gave no claim to 
 salvage. See also the case of Mesner v. Suffolk Bank, U. S. D. C. Mass., 1838, 1 
 Law Rep. 249, where a claim for salvage of property on board, by one of the 
 crew of a vessel which was sinking by reason of injuries received by a collision, 
 was refused, although the circumstances of the case, as Mr. Justice Curtis remarks, 
 in the case of The John Perkins, supra, " would seem to have involved all the 
 considerations in favor of the claim of one of the ship's company to be a salvor, 
 which could well be presented." In The Star, Vice-admiralty court, Halifax, 14 
 Law Rep. 487, two vessels came into collision, and got entangled together by 
 their rigging. All the persons on board The Star, fearing she would sink, went 
 on board the other vessel, soon after the two vessels came into collision. Shortly 
 after this, some of the crew of The Star returned to their vessel, while the vessels 
 were still entangled, and Avhile they were on board the vessels parted and they 
 reached port in safety. The court held that as the crew did not leave their vessel 
 animo non revertendi, their services in bringing the vessel in were done under 
 their contract as seamen, and that they were not entitled to salvage. See also 
 The Holder Borden, 1 Sprague, 144, cited in note, infra. 
 
 ^ If a ship be abandoned at sea, and deserted by all her crew except one or 
 two, and these remain on board and save, or help materially in saving the prop- 
 erty, they are salvors. Mason v. Ship Blaireau, 2 Cranch, 240. The decision in 
 this case proceeded entirely on the ground that by the abandonment of the vessel 
 by the captain and crew, the duty of the mariner who had been left on board by 
 accident ceased. In The Florence, Eng. Adm. 1853, 20 Eng. L. & Eq. 607, it 
 was held that if a vessel is abandoned at sea sine animo revertendi, the contract of 
 the crew is at an end ; and if they afterwards succeed in saving the vessel, they 
 are entitled to compensation as salvors. The learned judge said, however, that 
 he confined his decision to the case of an abandonment at sea, and did not intend 
 that it should apply to leaving the ship on the coast, where there might exist a 
 fair intention of returning. See Taylor v. Ship Cato, 1 Pet. Adm. 48. In The
 
 266 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 by the master,^ or where the service is so entirely out of the line 
 of their ordinary duty tliat it may be considered as not done under 
 their contract.^ 
 
 Sch. Triumph, 1 Sprague, 428, a vessel bound for Boston, while off Cape Cod 
 came into collision with another vessel and was considerably damaged. All of 
 the crew left but one. Held, he was entitled to salvage for bis subsequent efforts 
 in saving the vessel, although he was left on board against his will. See also 
 next note. In Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, it was 
 held that where a steamboat which was on fire was surrendered by the cap- 
 tain to the master of another boat, the contract of a pilot on board was dissolved, 
 and he might be a salvor. 
 
 1 In The Warrior, Lush. Adm. 476, a ship by accident in calm weather went 
 on a rocky beach in the Canary Islands, and soon filled with water, and the mas- 
 ter and crew went on shore. The next day the master discharged all the officers 
 and crew, and on the same day some of the crew at the suggestion of the mate 
 returned to the ship, worked for several days and saved the stores and part of the 
 cargo before the ship broke up. Held, that as the mate and crew did not leave sine 
 spe recuperandi, there was no abandonment, but that as the officers and crew had 
 been discharged they were entitled to salvage, even if the master acted wrong- 
 fully, as there was no evidence that the crew acted fraudulently in accepting the 
 discharge. 
 
 " Thus, in the case of The Mary Hale, decided in 1856, Marvin on Salvage, 
 161, the vessel was wrecked, and the mate and four seamen crossed the Gulf 
 Stream in an open boat, a distance of one hundred and eighty miles, to procure 
 assistance to take off the passengers and cargo. They succeeded in their en- 
 deavors and were the means of saving the passengers and cargo. The court held 
 that they were entitled to salvage, on the ground that their services exceeded the 
 duty they owed to the ship. In the case of The Holder Borden, 1 Sprague, 144, 
 the vessel, on a whaling voyage, was wrecked near an island in the Pacific Ocean, 
 which was uninhabited and at a great distance from any other land. The crew 
 rescued part of the oil from the wreck and placed it on the island, and it after- 
 wards came to a place of safety. It was held that the crew were not entitled to 
 compensation as salvors. The master and crew, as a means of escape from the 
 island, built a schooner of thirty-seven tons burden out of the remnants of the 
 wrecked ship. It was held that the remnants were rightfully so used, and that 
 the schooner was the property of the master and crew who built her. The cables 
 and anchors of the wrecked ship and part of the oil were taken to Oahu in the 
 schooner. It was held that the master and crew as owners of the schooner were 
 entitled to compensation for such transportation. In Reed v. Hussey, Blatchf. 
 & H. Adm. 543, the crew of a whaling vessel which had been wrecked claimed 
 salvage. Judge Betts said : " The rule seems to be invariable, however, that sea- 
 men who are compensated by a share of the freight or of the proceeds of the voy- 
 age, cannot in case of wreck claim for salvage service. The only extra compen- 
 sation they can demand is to be paid by the day for the time they are engaged in 
 saving the wreck." Two dollars a day were allowed each of the crew, though the
 
 CH. VIII.] WHO MAY BE SALVORS. 267 
 
 And where a vessel is in a position of great danger, and a 
 person from another vessel is requested by the owner to take the 
 command as captain, and save the vessel if he can, he is to be con- 
 sidered as a salvor, if no specific agreement is made with him for 
 compensation.^ 
 
 A crew is bound to suppress a mutiny on board their own ship, 
 at all events and at every hazard, and cannot claim salvage there- 
 for,2 although an admiralty court, where it could, would be dis- 
 posed to reward seamen for meritorious conduct of this kind ; and 
 if a crew of one ship suppress a mutiny or revolt in another ship, or 
 retake it from mutineers or revolters, this may well found a claim 
 for salvage.^ 
 
 If part of a crew leave their ship and go on board another to 
 save it, and thereby acquire a salvage claim, the rest, who remain, 
 share in this claim. Not equally, however ; for their claim rests 
 mainly on the increased labor, exposure or peril which falls on 
 them. If they were as willing to go as those who went, then they 
 are entitled to more, in proportion, than if they hung back, and 
 they who actually performed the service were the only ones ready 
 to make the effort or encounter the peril.^ But it has been held 
 
 ■wages of other laborers were sixty-two and a half cents a day, and others might 
 have been hired at this price. In Montgomery v. Tyson, U. S. D. C. Mass., 
 Lowell, J., a per diem compensation was also allowed, the master having promised 
 the men day's wages if they would work. 
 
 ^ McGinnis v. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. 
 359. The libellant in this case, took charge of the vessel while she was in a position 
 of danger in the ice, on the Ohio river. The court admitted the propriety of the 
 general rule that a passenger cannot be a salvor, but held that it could not apply, 
 as the libellant was passenger on board of another boat, and could have had no 
 agency in bringing the Pontiac into the position of danger in which she was placed. 
 
 « The Governor Raffles, 2 Dods. 14. 
 
 ^ The Trelawney, 4 Rob. Adm. 223. 
 
 * The Mountaineer, 2 W. Rob. 7; The Centurion, Ware, 477, 483. In The 
 Baltimore, 2 Dods. 132, equal salvage was decreed to those who went on board 
 the vessel saved, and to those who remained but were willing to go ; and to one 
 who was not willing to go, nothing was given. But it is manifest that as every 
 salvor must be rewarded according to the labor and peril he undergoes, those who 
 leave their own ship should generally be entitled to more than those who remain. 
 See The Jane, 2 Hagg. Adm. 338 ; The Sarah Jane, 2 W. Rob. 110, 115 ; The 
 Ship Henry Ewbank, 1 Sumner, 400, 431 ; The Roe, Swabey, Adm. 84; The 
 Janet Mitchell, 1 Swabey, Adm. Ill; The Charles Henry, 1 Bened. Adm. 8.
 
 268 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 that only those of the crew of a light-ship who actually perform a 
 salvage service are entitled to compensation.^ 
 
 If the crew of a ship which has been wrecked, and who are now 
 on board another ship as passengers, as a part of the crew of this 
 ship render salvage services to a third ship and property, they are 
 entitled to a share of the salvage.^ 
 
 So it would doubtless be with passengers of any description ; ^ 
 but a passenger is not, it has been held, allowed any salvage for 
 services rendered to the ship in which he is, because that is his 
 duty.* It is obvious, however, that while this may be generally 
 true, yet, as in the case of a seaman, extraordinary services may 
 give a salvage claim, and certainly the passenger would not be 
 held as bound to all the duty of a seaman ; ^ and if his relation as 
 
 > The Emma, 3 W. Rob. 151. 
 
 « The Salacia, 2 Hagg. Adm. 262, 269. In The Two Friends, 2 W. Rob. 349, 
 occurred the curious case of two vessels being abandoned by their crews at sea, 
 and the crew of the first finding the second vessel and saving her. The court 
 considered that as they thereby saved their own lives, it -was a case of mutual ben- 
 efit, and, the property being worth £ 1,237, decreed £ 300. 
 
 ' Bond V. The Brig Cora, 2 Wash. C. C. 80 ; McGinnis v. The Steamboat 
 Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. 659 ; The Charles Henry, 1 Bened. 
 Adm. 8 ; Smith t'. The Stewart, Crabbe, 220. In The Hope, 3 Hagg. Adm. 423, 
 compensation was allowed to the passengers, on the ground that " they were 
 delayed and experienced some inconvenience." 
 
 * In The Branston, 2 Hagg. Adm. 3, note, salvage was refused in a case where 
 a passenger on board, a lieutenant in the royal navy, contributed his assistance 
 when the vessel was in distress. In The Vrede, Lush. Adm. 322, a ship was injured 
 by a collision, and two hours afterwards was taken in tow by a steam-tug. The 
 passengers both before and after the vessel was taken in tow worked at the pumps. 
 Held, that they were not entitled to salvage. 
 
 ' Newman v. Walters, 3 B. & P. 612. In this case the ship was in danger, and 
 the captain and part of the crew left her. A passenger who had been a sea- 
 captain took the command, and, with the aid of the rest of the crew, brought the 
 vessel safely into port. Held, that he was entitled to claim salvage. In The Great 
 Eastern, U. S. D. C. New York, Shipman, J., 1864, this question was elaborately 
 considered and a passenger allowed salvage. The following extracts from the 
 opinion of the learned judge show the nature of the case : — 
 
 " The authorities cited show that officers and crew, pilots and passengers may 
 all become salvors when they perform services to the ship in distress, beyond the 
 line of their duty. The duties of passengers are much more circumscribed than 
 those of sailors or pilots ; and it would seem that all the law imposes upon them 
 is to assist in the ordinary manual labor of working and pumping the ship, under 
 the direction of those in command of her. If they assume extraordinary responsi-
 
 CH. VIII.] WHO MAY BE SALVOES. 269 
 
 passenger to the ship is dissolved, he may then perform a salvage 
 service.^ 
 
 A pilot, acting within the line of his duty, cannot entitle him- 
 self to claim as salvor, by any exertions or any service as pilot, 
 although he may become, like any other person, a salvor, if he 
 performs extraordinary services outside of the line of his duty. 
 And if persons assume the character of pilots, and act as such, 
 
 bilities, and devise original and independent means by which the ship is saved, 
 after her officers have proved themselves powerless, I see no reason, and know of 
 no authority that can prohibit them from being considered as salvors. I think it 
 follows, from the principles laid down by the authorities, 
 
 " 1. That a passenger on board a ship can render salvage service to that ship 
 ■when at distress at sea. 
 
 " 2. That in order to do this he need not be first personally disconnected from 
 the ship ; but, 
 
 " 3. That these services, in order to constitute him a salvor, must be of an ex- 
 traordinary character and beyond the line of his duty, and not mere ordinary 
 services, such as pumping and aiding in working the ship by usual and well- 
 known means. 
 
 " That the services of the libellant in the present case were of an unusual 
 character cannot be denied. After the officers of the ship had exhausted their 
 means of getting control of the rudder, he devised, and with the aid of a large 
 number of men put under his directions by the captain, executed a plan which, 
 in the judgment of this court was the efficient means of rescuing this great vessel 
 from peril. The whole work of accomplishing this result was entrusted to him 
 and to his directions. If it is said that he got his main idea of the plan he carried 
 out from witnessing an experiment of the engineer, which I doubt, still the effort 
 of that officer had entirely failed, and was an abandoned experiment. The merit 
 of the libellant in overcoming the obstacles which had proved insurmountable to 
 the engineer, is, in my judgment, enhanced rather than diminished by the un- 
 successful effort of the latter. That the service rendered by the libellant was a 
 very difficult one, is proved by the fact that the able and experienced officers of 
 this ship had failed to accomplish the result which he finally secured. They had 
 spent two days of fruitless effort, though stimulated by motives as powerful as 
 can be addressed to the minds of men. It required no little moral courage for 
 this libellant to interpose to arrest the unscrewing of the nut on the rudder shaft, 
 hnd then assume the responsibility of a new and different experiment, which 
 would consume precious time, and might thus produce appalling consequences. 
 Had he failed, the consequences to him would have been injurious and humiliat- 
 ing. The whole circumstances of the case are so extraordinary as to leave no 
 doubt in my mind that the services which he performed were wholly beyond his 
 duty as a passenger, and therefore entitle him to salvage compensation." 
 
 * The Two Friends, 1 Rob. Adm. 271, 285; Clayton v. Ship Harmony, 1 Pet. 
 Adm. 70.
 
 270 LAW AND JURISDICTION OF ADMIRALTY. [BOOK U. 
 
 they must be compensated as such, and not as salvors.^ In Eng- 
 land, it would appear that formerly extra efforts and exertions on 
 the part of pilots were compensated as such, and not as salvage.^ 
 Now, however, pilotage is defined to be " the conducting a vessel 
 into port in the ordinary and common course of navigation," and it 
 is said not to be simple pilotage " when a vessel, from real danger, 
 or from what may afterwards turn out to be an unfounded alarm is, 
 seeking a port of safety, out of the course of her intended voyage." ^ 
 And as the English pilot laws do not provide for any extra com- 
 pensation, the courts have felt themselves bound to reward all 
 efforts beyond the duty of a pilot, by compensation as salvage.* 
 And it has been held that when pilotage services are voluntarily 
 performed by persons who are not pilots, in a place where there 
 are no licensed pilots, they are to be compensated for as salvage.^ 
 
 1 The Cumberland, 9 Jurist, 191 ; The Johannes, 6 Notes of Cases, 288. In 
 The City of Edinburgh, 2 Hagg. Adm. 333, the vessel was off the coast in a 
 etorm two days, with a signal for a pilot flying. None, however, went to her till 
 the third day, after the storm had abated. They then claimed salvage on the 
 ground that they had signalled the captain to go back on his first entering the 
 harbor, on the first day of the storm, that they had continued on the watch for 
 two nights, and had been prevented from going off only, by the violence of the 
 storm. The Trinity Masters being of the opinion that the attempt to go to the 
 vessel should have been made, the court held that no salvage service had been 
 rendered. In The Jonge Andries, Swabey, Adm. 226, 229, Dr. Lushington con- 
 sidered the law to be that if a pilot went on board a vessel in distress he might 
 claim as salvor, but that if he were engaged to take the vessel into port he could 
 not claim additional compensation, if, in consequence of the weather becoming 
 more boisterous, he should perform additional services. This case was affirmed 
 on appeal, Swabey, Adm. 303. 
 
 * The Enterprise, and The Columbus, 2 Hagg. Adm. 178, note, decided in 
 1828. In The Funchal, 3 Hagg. Adm. 386, note, where three smacks piloted a 
 vessel out of an unfrequented channel at the mouth of the Thames to the Nore, 
 on a moonlight night, the vessel being uninjured and preparing to anchor, know- 
 ing her situation, it was held that this was a mere pilotage service. See also The 
 Branken Moor, 3 Hagg. Adm. 373. 
 
 ^ The Elizabeth, 8 Jurist, 365. See also cases In next note. 
 
 * The Frederick, 1 W. Rob. 16 ; The Hebe, 2 W. Rob. 246 ; The Joseph Har- 
 vey, 1 Rob. Adm. 306 ; The Elizabeth, 8 Jurist, 365 ; The Persia, 1 Splnks, 166 ; 
 The Industry, 3 Hagg. Adm. 203, where It Is held to be no part of the duty of a 
 pilot to tow a vessel. In The King Oscar, 6 Notes of Cases, 284, and in The 
 Hedwig, 1 Splnks, 19, 24 Eng. L. & Eq. 582, the general doctrine was applied to 
 a foreign vessel. 
 
 ' The Rosehaugh, 1 Splnks, 267.
 
 CH. viil] who may be salvors. 271 
 
 But we should not consider, that this would be so if an agreement 
 was made to act as pilot.^ 
 
 In this country, as we have previously remarked,^ the States are 
 authorized by an act of Congress to make their own pilotage laws, 
 and questions under these laws are cognizable both in the State 
 and in the United States courts. Most of these laws make it part 
 of the duty of a pilot to assist vessels in distress, and either give 
 the rate of the extra compensation to be awarded, or point out the 
 tribunal which shall determine the amount due. Extra services 
 are, therefore, in this country generally considered as such, and 
 not as salvage services,^ and this has been so held even where 
 there is no statute law applicable to the case.* 
 
 In some cases, however, extra services have been considered as 
 salvage,^ even though the pilot could have recovered his extra 
 compensation under a State statute.^ If a vessel is in such peril 
 
 * See The Jonge Andrles, Swabey, Adm. 226, affirmed on appeal, Swabey, 
 Adm. 303. 
 
 ^ See ante, p. 107. 
 
 ' Dulany v. Sloop Peragio, Bee, 212 ; Dexter v. The Bark Richmond, 4 Law 
 Rep. 20; Schooner Wave v. Hyer, 2 Paine, C. C. 131. And In Callagan v. Hal- 
 lett' 1 Caines, 104, where the vessel was on shore, and the master made an agree- 
 ment with a pilot to get her off for $ 500, and take her into port, the court refused 
 to enforce it, on the ground that the pilot was bound to render assistance, and 
 could recover an adequate compensation in the manner pointed out by the 
 statute. 
 
 * Love V. Hinckley, Abbott, Adm. 436. 
 
 ^ Hand v. The Elvira, Gilpin, 60 ; The Brig Susan, 1 Sprague, 499. 
 
 * Hobart v. Drogan, 10 Pet. 108. In New York some importance seems to be 
 attached to the question, whether the vessel is afloat at the time of the service 
 rendered. Thus in Lea v. Ship Alexander, 2 Paine, C. C. 466, it was held that 
 where a vessel is on a shoal and is got off by a pilot, he is entitled to claim salvage, 
 on the ground that it is not in the line of the duty of a pilot to do more than navi- 
 gate a vessel when she Is afloat. For no other reason could salvage have been 
 refused in the case of Schooner Wave v. Hyer, 2 Paine, C. C. 131. In this case 
 the vessel while going out of the harbor in winter was injured by the Ice, and 
 when near Sandy Hook was nearly full of water. She was saved by the exertions 
 of a pilot-boat which was bound in. The court held that this was not a case of 
 salvage, but of pilotage only. And in Hope v. Brig Dido, 2 Paine, C. C. 243, 
 where a vessel was met with at sea without a rudder, It was held, that if she was 
 thereby rendered innavigable, it was a salvage service, but not otherwise ; and It 
 was said that before pilots can be salvors they must discharge their duties as pilots, 
 and there must be efforts, perils to be encountered, and labor and skill out of the 
 line of their duty.
 
 272 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 as to be the subject of salvage service, and a signal is hoisted, it 
 will be deemed a request for assistance, although it be the usual 
 signal for a pilot.^ 
 
 An officer of the customs who renders extraordinary assistance, 
 outside the bounds of his official duty, may claim as salvor ; ^ and so 
 may a magistrate, under similar circumstances,^ And the agent 
 of Lloyd's,^ or of American insurance companies, or even one who 
 is the especial agent of the owners, for the very purpose of recover- 
 ing the ship and cargo, may nevertheless perform services which 
 will make him a salvor.^ A prize ship in distress, if saved and 
 brought into port by strangers, will be held subject to salvage ; 
 and after deducting salvage, the proceeds will be restored to those 
 who were in possession of her,^ 
 
 In a case where salvors, after bringing several kegs of specie to a 
 port of safety, tln'ew one keg overboard feloniously, some fisher- 
 men who saw the act, and who afterwards rescued the property, 
 were held entitled to salvage, although the water was only eight 
 feet deep at the place where the keg was.'' 
 
 The officers and crew of our national vessels are so far bound to 
 
 ^ The Hedwig, 1 Spinks, 19, 24 Eng. L. & Eq. 582 ; The Brig Susan, 1 Spr^ue, 
 499. See jjost, p. 308, n. S. 
 
 * Le Tigre, 3 Wash. C. C. 567. Washington, J., in this case said : " We have 
 no doubt, that if a collector, or other revenue officer, intending to act in the line 
 of his official duty, but mistaking the law and transcending his authority, is the 
 meritorious cause of saving property to the owner, he is not precluded on account 
 of the motive which actuated him, from claiming salvage." 
 
 * See the case cited by Dr. Lushington, in The Purisslma Concepcion, 3 W. 
 Rob. 181, 184. But in The Aquila, 1 Rob. Adm. 37, 46, Sir W. Scott held that a 
 magistrate who gave notice of the disaster to the consul of the country to which 
 the vessel belonged, and to Lloyd's, and who administered an oath to fifteen men 
 whom he sent to assist the vessel, was not entitled to claim as salvor. 
 
 * The Lord Cranstoun, cited 2 Hagg. Adm. 207; The Purissima Concepcion, 
 3 W. Rob. 181. But see The Lively, 3 W. Rob. 64. The case of The Purissima 
 Concepcion came before the court again, 7 Notes of Cases, 503, and the learned 
 judge said that the case must not be taken as a precedent; and only a small 
 amount was allowed. In The Traveller, 3 Hagg. Adm. 370, where assistance was 
 rendered to a vessel by a steamer belonging to Lloyd's agent, the court said that 
 circumstance would not affect the claim. 
 
 ' The Happy Return, 2 Hagg. Adm. 198; The Favorite, 2 W. Rob. 255, 259; 
 The Cargo ex Honor, Law Rep. 1 Adm. 87. See p. 264, n. 1. 
 ° Booth V. Sch. L'Esperanza, Bee, 92. 
 ' The Mulhouse, U. S. D. C. Florida, Marvin, J., 22 Law Rep. 276.
 
 CH. VIII.] WHO MAY BE SALVORS. 273 
 
 rescue a vessel from mutineers, that they are not entitled to claim 
 salvage for such a service,^ unless, perhaps, where they incur great 
 personal danger and use great exertions in the performance of the 
 service. But for an ordinary salvage service they are clearly 
 entitled to compensation.^ But as their time and the property 
 which they subject to risk belong to government, their compensa- 
 tion is less than it would otherwise be ; ^ and the government is 
 allowed for the pay, victualling, and wear and tear of the ship, 
 while employed in a salvage service.* 
 
 In England, the right of its vessels of war to sue as salvors, ex- 
 cept in certain instances, is taken away by statute, unless the ad- 
 miralty gives its consent.^ But in this country, although it is 
 very unusual for our ships of war to claim salvage, we know of 
 no law which would prevent them from so doing.^ So in respect 
 
 ' The Francis & Eliza, 2 Dods. 115. But see United States v. Tlie Amistad, 
 15 Pet. 518. 
 
 2 The Lord Nelson, Edw. Adm. 79; The Pensamento Feliz, Edw. Adm. 115 ; 
 The Gage, 6 Rob. Adm. 273 ; The Louisa, 1 Dods. 317; The Mary Ann, 1 Hagg. 
 Adm. 158; The Thetis, 3 Hagg. Adm. 14 ; The Elwell Grove, id. 209 ; L'Esper- 
 ance, 1 Dods. 46 ; The Wilsons, 1 W. Rob. 172 ; The Iodine, 3 Notes of Cases, 
 140 ; The Charlotte Wyli^, 2 W. Rob. 495. In Robson v. The Huntress, 2 Wal- 
 lace, C. C. 59, a salvage service performed by an English man-of-war to an Amer- 
 ican brig on the coast of Africa, was compensated for. In The Lustre, 3 Hagg. 
 Adm. 154, the use of a government steamer was allowed by the admiral, " upon 
 the express stipulation and condition that the owners and underwriters would be 
 answerable for the payment of the stores expended or damaged." It was held 
 that this agreement did not bar the right of the officers and crew to salvage com- 
 pensation. In The Rosalie, 1 Spinks, 188, 25 Eng. L. & Eq. 605, which was 
 probably the last case in England on this subject prior to the statute, referred to 
 infra, Dr. Lushington expressed himself to be strongly in favor of allowing 
 national vessels to claim as salvors. 
 
 ^ The Clifton, 3 Hagg. Adm. 117; The Rapid, id. 419 ; The Mulhouse, U. S. 
 D. C. Florida, Marvin, J., 22 Law Rep. 290. 
 
 * The Thetis, 3 Hagg. Adm. 14. 
 
 5 Merchants' Shipping Act of 1854, 17 & 18 Vict. c. 104, § 484, et seq. The 
 court took jurisdiction under this act, with the consent of the Lords of the Admi- 
 ralty, in the cases of The Earl of Eglinton, Swabey, Adm. 7 ; The JNl^iry 
 Pleasants, Swabey, Adm. 224; and The Alma, Lush. Adm. 378. 
 
 ^ The Act of Dec. 22, 1837, c. 1, 5 U. S. Stats, at Large, 208, authorizes the 
 President to cause a suitable number of public vessels to cruise upon the coast in 
 the severe portion of the season, to afford aid to vessels in distress. While en- 
 gaged in such a service we presume that they would not be entitled to claim any 
 extra compensation ; but we know of no law that would prevent their acting as 
 VOL. II. 18
 
 274 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 to the coast guard in England. It is appointed to protect the 
 revenue and to prevent smuggling, and, although paid by the 
 public, yet the persons who compose it have a clear right to sal- 
 vage compensation if they perform salvage services.^ 
 
 It has been said that effective services by steamboats should be 
 
 salvors at any other time. This question has been several times considered by the 
 attorneys-general of the United States, and opinions have been given to the fol- 
 lowing effect. In 1824, Mr. Wirt gave an opinion that a United States vessel 
 was not entitled as against government to salvage for saving property of the 
 United States, wrecked on Florida reef. 1 Attorney-Gen. Opin. 675. In 1849, 
 Mr. Reverdy Johnson gave an opinion In favor of the right of an American vessel 
 of war to claim salvage for assisting a French ship. 5 Attorney-Gen. Opin. 116. 
 In 1856, the question was presented to Mr. Caleb Cushing, whether the officers 
 and crew of a coast-survey steamer had any right to receive and retain for their 
 own use salvage for assistance rendered to a merchant vessel of the United 
 States. This learned jurist doubted whether any compensation could be granted 
 without the consent of the executive. This doubt was founded on the language 
 of Mr. Justice Story in the case of United States v. The Amistad, 15 Pet. 518, 
 597, which was: " As to the claim of Lieutenant Gedney for the salvage service, 
 it is understood that the United States do not now desire to interpose any obstacle 
 to the allowance of It, if It Is deemed reasonable by the court." The opinion was 
 also given to the secretary of the treasury, that he might by standing regulations 
 forbid the demand of salvage by any public ship under the orders of the Treasury 
 Department. 7 Attorney-Gen. Opin. 756. In 1851, In the case of The Jose- 
 phine, 2 Blatchf C. C. 322, Mr. Justice Nelson was of the opinion that cases 
 might exist In which seamen on board a man-of-war might claim salvage, notwith- 
 standing general instructions to the contrary from the government ; but held 
 that, " In such cases, something more than the usual peril should be encountered 
 by the officers and crew, and an extraordinary service should be rendered, ex- 
 ceeding the duty Imposed upon them by their employment in the public service 
 and the special instructions of the government on the subject. Ordinary service 
 In rescuing American vessels in distress, requiring no great hardshlji or peril on 
 the part of the officers and crew, would seem to fail directly within the line of the 
 general duty thus enjoined. It is a service bestowed by the government for the 
 protection and encouragement of Its commercial marine, and the right to impose 
 this duty on government vessels is too clear to be controverted. Great and ex- 
 traordinary service and peril In rescuing a vessel and her cargo would present a 
 different question, and stand upon different principles and policy. Such acts 
 shquld of themselves be the subject of reward and encouragement, and would not 
 be necessarily comprehended In the duty resulting from the public employment of 
 the persons rendering It, or from the instructions of the government." It may 
 also be remarked, that by a United States statute, as we shall see hereafter, sal- 
 vage is allowed national vessels for recapturing property of the United States. 
 
 1 The Ocean, Eng. Adm. 1838, 2 Monthly Law Magazine, 441 ; Silver Bullion, 
 2 Spinks, 70.
 
 CH. VIII.] WHO MAY BE SALVORS. 275 
 
 particularly encouraged ; and one obvious reason for this would 
 be, that it is wise to offer a particular inducement to those whose 
 services might often be particularly useful from their comparative 
 independence of wind and tide.^ If the service is merely one of 
 ordinary towage, as a general rule, only the usual towage compen- 
 sation is to be given.2 But if a vessel is in distress, and in such 
 a condition that a salvage service can be performed, a sailing ves- 
 sel may earn salvage by towing,^ and it is no less a salvage service 
 when performed by a steamer because she can do it with more 
 safety to herself than a sailing vessel could."* 
 
 Where there is an agreement to tow a disabled vessel from one 
 place to another, for an extra compensation, the court will not 
 increase the sum agreed upon because of some additional assist- 
 ance rendered.^ But where some material circumstance is con- 
 
 1 The Raikes, 1 Hagg. Adm. 246, decided in 1824. This is said to be the first 
 case in which a steam vessel claimed salvage. See also The Alfen, Swabey, 
 Adm. 189 ; Brooks v. The Wm. Penn, U. S. C. C. South Carolina, 1 Am. Law- 
 Reg. 584. 
 
 = The Princess Alice, 3 W. Rob. 138; The Harbinger, 20 Eng. L. & Eq. 641 ; 
 The Albion, 2 Hagg. Adm. 180, note. Where a steam-tug goes out of port for 
 the express purpose of towing a particular vessel in, under circumstances which 
 make it a mere towage service, it seems that the expense and time of going out are to 
 be compensated for as well as the actual labor of towage. The Graces, 2 W. Rob. 
 294. In The Red Rover, 3 W. Rob. 150, a fishing vessel was struck by a flaw of 
 wind, and her masts blown overboard. The weather afterwards being fine, she 
 was towed by another fishing smack into a port of safety. The court considered 
 it a salvage service, but of so trivial a nature that only five pounds, without costs, 
 were awarded. The value of the vessel was £lOO. See The Batavier, 1 Spinks, 169. 
 
 ^ The Harriet, 1 Spinks, 180. 
 
 * The United Kingdom, 3 Hagg. Adm. 401, note; The London Merchant, id. 
 394; The Meg Merrilles, id. 346 ; The Traveller, id. 370 ; The Earl Grey, id. 
 363; The Isabella, id. 427; The Reward, 1 W. Rob. 174, 177; The Kilby, 26 
 Eng. L. & Eq. 596, note ; The Kingalock, 1 Spinks, 263, 26 Eng. L. & Eq. 596 ; 
 The Medora, 1 Spinks, 17; The Charles Adolphe, Swabey, Adm. 152; The 
 Paris, 1 Spinks, 289 ; The Martin Luther, Swabey, Adm. 287 ; The Saint Nicho- 
 las, Lush. Adm. 29 ; The EUora, id. 550 ; Hennessey v. Ship Versailles, 1 Curtis, 
 C. C. 353; The Independence, 2 Curtis, C. C. 350; The H. B. Foster, Abbott, 
 Adm. 222 ; Virden v. The Brig Caroline, U. S. C. C. Del., 1857, 6 Am. Law Reg. 
 222; The Wm. L. Garrison, U. S. D. C. Mass., 1867, Lotvell, J.; The Georgfe 
 Gilchrist, March, 1868, Same Court; The Coringa, Same Court; The Acacia, 
 Same Court ; The Joseph C. Griggs, 1 Bened. Adm. 80. 
 
 » The Kilby, 26 Eng. L. & Eq. 596, note; The Betsey, 2 W. Rob. 167. It 
 was also held in this latter case that " whoever takes upon himself to establish the
 
 276 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 cealed,^ or where an ordinary towage service is commenced at an 
 agreed sum, and an extraordinary service is rendered, the agree- 
 ment is set aside.^ 
 
 If a towage service is commenced by a steam-tug, wliicli breaks 
 down in the progress of the service, and the towage is completed 
 by other tugs belonging to the same company, the original contract 
 is not annulled, and it seems that the acceptance of the service by 
 the master of the vessel in tow is a continuation of the original 
 
 fact that an admitted agreement has been invalidated by consent of parties, is 
 bound to prove, by clear preponderance of testimony, that it was so cancelled." 
 
 ^ The Kingalock, 1 Spinks, 263, 26 Eng. L. & Eq. 596. In this case the 
 agreement was set aside because the master of the vessel saved omitted to state that 
 he had just lost an anchor and cable. But in The Jonge Andries, Swabey, Adm. 
 226, the court held that the master was not bound to point out every circumstance 
 that had occurred during the voyage, but that there must be a concealment on pur- 
 pose, of a circumstance of importance, to have this effect. TLis case was affirmed on 
 appeal in the Privy Council, Swabey, Adm. 303. In The Canova, Law Rep. 1 Adm. 
 54, the fact that the greater part of the crew were sick, and that this fact was with- 
 held, was considered not to avoid an agreement of towage, the vessel being in no 
 danger. The value of the property saved has nothing to do with the question 
 ■whether the agreement is binding or not ; and Dr. Lushington in one case said : 
 " Salvors are not entitled to make an agreement upon any other grounds than 
 these: The extent of danger to which the property to be salved is exposed, the 
 degree of labor they will have to undergo, the risk to which they themselves may 
 be exposed, and the length of time to be occupied ; but they are not to speculate 
 on the value of the cargo." The Henry, 2 Eng. L. & Eq. 564. 
 
 ^ The William Brandt, 2 Notes of Cases, Supp. Ixvii. ; The Albion, Lush. Adm. 
 282 ; The Saratoga, id. 318 ; The Minnehaha, id. 335 ; The Annapolis, id. 355 ; 
 The Lady Egidia, id. 513 ; The Edward Hawkins, id. 515; The Pericles, Brow. 
 & L. Adm. 80 ; The White Star, Law Rep. 1 Adm. 68. In The Galatea, 
 Swabey, Adm. 349, a steam-tug was hired to tow a brig from Gravesend to the 
 North Foreland for a fixed sum. While on the voyage, a gale having sprung up, 
 the tow rope broke and the brig drifted towards a sand-bank. She let go an 
 anchor but it was alleged by the salvors that she was in considerable danger of 
 striking the sand. She was finally got clear by the tug, and the brig being unable 
 to proceed to the North Foreland was towed back to London. Held, a salvage 
 service. Dr. Lushington said, " I have no doubt as to the principle which ought to 
 govern the court in deciding the present case. When an engagement is made for 
 a steamer to tow a ship from one place to another, the steamer is bound by that 
 engagement to do all that is necessary to facilitate the safe voyage of the ship 
 from the one place to the other ; and she is to take the chance of bad weather, 
 which may occasion delay and inconvenience. But she does not take the chance 
 of the undertaking being entirely interrupted by the act of God ; that is, from the 
 state of the wind and weather being such as to compel her to abandon the orig-
 
 CH. VIII.] WHO MAY BE SALVORS. 277 
 
 contract. 1 Where a vessel at sea was met by a fishing smack, and 
 an agreement entered into to pilot the vessel into port, and " to 
 sail ahead " of her for an agreed sum, the court held that more 
 than the agreed sum could not be claimed, although the smack 
 was obliged to tow the vessel.^ 
 
 If a vessel is lying in a dock, and is in danger of catching fire 
 from the buildings on tlie wharf, and is towed thence by a steam- 
 tug, this is a salvage service.'^ Where a vessel at anclior was in 
 danger of being run into by a vessel which was adrift, and a steam- 
 tug made fast to the vessel adrift, and thus avoided the collision, it 
 was held that the service was too indirectly rendered to the vessel 
 at anchor to render her liable for salvage.* 
 
 As a general rule, none can claim salvage who did not directly 
 aid and participate in the salvage service, or promote those ser- 
 vices by doing the work of those rendering them,^ An exception, 
 
 inal undertaking. In the present case there was an undertaking for the steamer 
 to tow the brig proceeded against from Gravesend to the North Foreland, and 
 when off the Tongue Sand, the prosecution of that undertaking was rendered 
 absolutely impofsible from the state of Avind and weather. The original engage- 
 ment was then, I hold, no longer binding on the steamer, and I think that she 
 could not be required to tow her back to London, as a part of the towage ser- 
 vice, instead of proceeding as originally intended to the North Foreland." 
 
 1 The Lady Flora Hastings, 3 W. Rob. 118. 
 
 - The Jonge Andries, Swabey, Adm. 226, affirmed on appeal, Swabey, Adm. 
 303. 
 
 5 The Tees, Lush. Adm. 505. In Stevens v. The S W. Downs, 1 Newb. 
 Adm. 458, where a steamboat towed another from the wharf to a place of 
 safety, and thus prevented her from coming in contact with another steamer on 
 fire, which was descending the river, the court said : " While I do not feel 
 myself called upon to decide that this is not a case of marine salvage, I have no 
 hesitation in saying that it is a case where the services performed should entitle 
 the libellants to little more than would be allowed upon a quantum meruit for 
 work and labor performed." 
 
 * The H. M. Hayes, in P. C, Lush. Adm. 375. Dr. Luslungton was of a con- 
 trary opinion. Lush. Adm. 360. 
 
 * The Vine, 2 Hagg. Adm. 1. The claim of an officer of the coast guard who 
 permitted his men to render assistance to a vessel, but did nothing himself, was 
 in this case denied. See also The Charlotte, 3 W. Rob. 68 ; Waterbury v. My- 
 rick, Blatchf & H. Adm. 34. And underwriters who employ a vessel to go to 
 the assistance of property which they have insured, are not entitled to claim as 
 salvors. The Pickwick, 20 Eng. L. & Eq. 628. The claim of the admiral of a 
 station is refused in case of recapture, unless he has the right by statute. The 
 Calypso, 2 Hagg. Adm. 209. See also The Thetis, 3 Hagg. Adm. 14, 48, 58, 63.
 
 278 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 and a liberal one, is usually made in favor of the owners of the 
 saving vessel, who are not only entitled to claim compensation for 
 stores, etc., supplied, but salvage compensation in addition.^ But 
 the owner of the cargo has no claim for salvage,^ unless the stop- 
 page and deviation for the purpose of the salvage were authorized 
 by him.^ Otherwise, his remedy for any loss caused by the devia- 
 tion is only against the owner or master.^ 
 
 The lord of a manor cannot claim salvage for taking against the 
 consent of the owner, and preserving parts of a ship thrown up by 
 the sea upon his land, when the servants of the owner are there to 
 take care of the property for him.^ It does not detract from the 
 merit of a service rendered by salvors, that they acted under the 
 direction of an officer in the navy, who held an official appoint- 
 ment at the place where the service was performed.^ 
 
 It has been said that the charterers of a vessel are not, except 
 under very special circumstances, entitled to the salvage earned 
 
 1 The San Bernado, 1 Rob. Adm. 178; The Jane, 2 Hagg. Adm. 338; The 
 Salacia, id. 262, 264 ; The Martha, 3 id. 434 ; The Roe, Swabey, Adm. 84 ; The 
 Janet Mitchell, id. Ill ; The Perla, id. 230 ; Evans v. The Ship Charles, 1 Newb. 
 Adm. 329 ; The Baltimore, 2 Dods. 132; The Nathaniel Hooper, 3 Sumner, 542. 
 In Waterbury v. Myrick, Blatchf. & H. Adm. 34, the master left the vessel at her 
 outward port, neglected the sale of the cargo belonging to the ship-owner and 
 other shippers, pledged part of the cargo, and with the proceeds hired another 
 vessel and performed a salvage service. The court held that the owners of the 
 vessel were not entitled to participate in the results of this adventure, because 
 their vessel had not been used, and that their remedy against the master for the 
 breach of his duty in selling the cargo was in a court of common law. See also 
 post, p. 299. 
 
 * The Ship Nathaniel Hooper, 3 Sumner, 542 ; Bond v. Brig Cora, 2 Pet. Adm. 
 361 ; Taylor v. Ship Cato, 1 Pet. Adm. 48, 67. 
 
 ' Mason v. Ship Blaireau, 2 Cranch, 240. 
 
 * The reason given for making a distinction between the owner of the ship and 
 the owner of the cargo, is, that the latter has his remedy in case of a deviation 
 against the owner of the vessel, or against the ship in rem, so that although his 
 insurance is forfeited, he incurs no loss, because by the deviation the owner of the 
 ship becomes an insurer. But if the doctrine of Dr. LusJiington be correct, that 
 every owner is to be treated as uninsured, there would seem to be no difference 
 between them in this respect. See The Deveron, 1 W. Rob. 180. And as the 
 liability of the owner is now so much limited by statute, it may be a serious ques- 
 tion whether the risk of the shipper of goods is not sufficiently great to entitle 
 him to some proportion of the salvage. 
 
 » Sutton V. Buck,* 2 Taunt. 301. 
 » The Persia, 1 Spinks, 166.
 
 CH. VIII.] DIFFERENT SETS OF SALVORS. 279 
 
 by the vessel ; ^ but we should consider the rule to be, that if, by 
 the terms of the charter-party, the vessel itself is let to the char- 
 terers, they should be considered the owners, and as such entitled 
 to salvage, but not, if the use of the vessel is all they pay for.^ 
 
 And it has been held if a vessel, owned by the person to whom 
 another vessel is chartered, renders assistance to that vessel, and 
 both vessels are under the control of the owner of the saving 
 vessel, he appointing the officers and crew, that no salvage is due, 
 the crews of both vessels being considered as his servants.^ 
 
 The East India Company have been held to pay salvage to a 
 ship which they had chartered and employed, for the salvage ser- 
 vice rendered to another ship which was their property. The 
 officers and crew of the chartered ship being appointed by its 
 owner,* and not by the East India Company. 
 
 If persons are convicted under a statute, in a court of competent 
 jurisdiction for improperly interfering with wrecked property, they 
 cannot maintain a suit in admiralty for their services as salvors.^ 
 
 SECTION TIL 
 
 OF DIFFERENT SETS OF SALVORS. 
 
 Salvors falling into distress and saved by other salvors, do not 
 lose their claim ; but their salvors share it with them according to 
 their merit.^ But a second set of salvors have no right to inter- 
 fere with the first set, unless there is reasonable ground for the 
 belief that the first salvors alone cannot save the property.'^ If 
 
 ^ The Alfen, Swabey, Adm. 189. The terms of the charter-party do not 
 very clearly appear in the report of this case. 
 
 ^ For the difference between these two modes of hiring, see ante, Vol. I. p. 278. 
 
 ' The Maria Jane, 1 Eng. L. & Eq. 658. 
 
 * The Waterloo, 2 Dods. 433. See also The Collier, Law Kep. 1 Adm. 83 ; 
 The Nathaniel Hooper, 3 Sumner, 575. 
 
 ^ The Wear Packet, 2 Spinks, 256. 
 
 " The Ship Henry Ewbank, 1 Sumner, 400; The Jonge Bastiaan, 5 Rob. Adm. 
 322. In The Watt, 2 W. Rob. 70, a deduction was made from the amount 
 decreed, to compensate for the services of a steamer which completed the salvage 
 service. 
 
 ' Hand v. The Elvira, Gilpin, 60; The Maria, Edw. Adm. 175 ; The Blenden 
 Hall, 1 Dods. 414; The Eugene, 3 Hagg. Adm. 156; The Samuel, 4 Eng. L. &
 
 280 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 the second set of salvors can show that tlieir services are actnally 
 necessary and useful, or that valuable property has been saved by 
 them, which otherwise would probably have been lost, then, we 
 should have no doubt, that the second set had established a sal- 
 vage claim, even if the first set had opposed and actually resisted 
 their interference.^ 
 
 There is also a distinction of much importance to be noticed in 
 this connection. When a vessel is derelict, the party first taking 
 possession has a vested interest in the property, and no one can 
 
 Eq. 581 ; A Quantity of Iron, 2 Sprague, 51. In The Amethyst, Daveis, 20, a 
 wreck was discovered by three schooners, just before sunset, and was boarded by 
 one of them. No one, however, remained on board that night, but the three ves- 
 sels lay by the wreck in order to tow her into port the next morning. At day- 
 light she was about a mile from them, and they proceeded at once to take posses- 
 sion, but before they reached the wreck, she had been boarded by persons from 
 another vessel. These they displaced, and towed the vessel off. Held, that the 
 possession they had taken the night before was of a sufficiently continuing nature, 
 and that the stranger vessel was not entitled to any salvage. 
 
 1 The Rose in June, cited 2 Hagg. Adm. 364 ; The Charlotta, 2 Hagg. Adm. 
 361 ; The Effort, 3 Hagg. Adm. 165; The Queen Mab, 3 Hagg. Adm. 242; The 
 Pickwick, 20 Eng. L. & Eq. 628. In The Dosseitei, 10 Jurist, 865, the vessel was 
 taken by the salvors and anchored in a place of some danger, and left there for 
 several hours, while the salvors went for more ropes and spars, which were neces- 
 sary. There was a vessel near by which offered to furnish them, and if they had 
 been accepted, the vessel saved might have been taken at once to a place of per- 
 fect safety. They were refused, and after some delay the original salvors took 
 the vessel to a port of safety. It did not appear that the delay produced any 
 loss to the vessel, but the court were of the 02:)inion that there was great risk in 
 leaving the vessel at anchor in an exposed situation, and diminished the amount 
 of salvage on that account. The learned judge also stated, that if he thought the 
 refusal to take the ropes, etc., from the other vessel, was for the purpose of pre- 
 venting it from rendering any assistance, and thus obtaining a larger salvage, he 
 would have refused compensation altogether. See also The Glory, Eng. Adm. 
 1850, 2 Eng. L. & Eq. 551. In this case, a vessel got upon the sands, and the 
 services of a steam-tug were refused by some salvors who had tendered their aid 
 to the vessel. Dr. Lushington, on this account, gave the salvors but one third of 
 what they would otherwise have been entitled to. After stating the general rule 
 that salvors cannot interfere with each other, the learned judge said: "I cannot 
 conceive that any notion can be broached, more injurious to the security of the 
 mercantile navy of this country, than a notion that because a man happened first 
 to go aboard a vessel, and then a steam-tug was offered, he had a right to refuse 
 that assistance, and claim to perform the duty himself, because by possibility, a 
 set of salvors might heave a vessel by an anchor, or succeed in getting her off the 
 sand."
 
 CH. VIII.] DIFFERENT SETS OF SALVORS. 281 
 
 interfere with liim except in a case of manifest incompetency on 
 his part ; but in an ordinary case of disaster, when the master 
 remains in command, it is his province to determine the amount 
 of assistance which is necessary, and the first salvors have no right 
 to prevent other persons from rendering assistance, if the master 
 wishes such aid.^ 
 
 So, unless the vessel is a legal derelict, the salvors have not the 
 right as against the master to the exclusive possession of the 
 vessel, but should, on the master's returning and claiming the 
 charge of the vessel, give it up to hini.^ 
 
 If the first set entirely abandon the property, and cease their 
 efforts to save it, and a second and independent set of salvors then 
 take hold, the first set have no right to return and claim priority, 
 and, indeed, have no right to interfere with the second set without 
 necessity.^ But if the first set, before they left the ship or goods, 
 had materially benefited the same, and made it easier or more 
 practicable to save it, their claims would then, undoubtedly, be 
 allowed to a proper extent.* If, however, the first set have, 
 by their carelessness, injured the property, it has been held that 
 they are not entitled to salvage, and that if the second set have 
 rendered efficient service, and are in no way connected with the 
 damage done by the first, they are entitled to salvage, although 
 they sue in the same cause.^ The better opinion, however, seems 
 to be that as mere carelessness does not forfeit salvage compensa- 
 tion, the first set of salvors may recover compensation so far as 
 their efforts have contributed to the safety of the vessel.^ 
 
 The second salvors cannot lawfully, under any circumstances, 
 make it a condition of their rendering assistance, that the first 
 
 ^ The Dantzic Packet, 3 Hagg. Adm. 383 ; The Black Boy, 3 Hagg. Adm. 
 386, note: The Glascow Packet, 2 W. Rob. 307 ; The Glory, Eng. Adm., 1850, 
 2 Eng. L. & Eq. 551 ; The Samuel, 4 Eng. L. & Eq. 581 ; The Martha, Swabey, 
 Adm. 489. 
 
 ^ The Champion, Brow. & L. Adm. 69. 
 
 ' The India, 1 ^Y. Rob. 406. 
 
 * See The Jonge Bastiaan, 5 Rob. Adm. 322 ; Cowell v. The Brothei-s, Bee, 
 136; The Samuel, 4 Eng. L. & Eq. 581; The Island City, 1 Black, 121, 1 
 Clifford, C. C. 210, 219, 221 ; The Underwriter, 4 Blatchf. C. C. 94 ; The Atlas, 
 Lush. Adm. 518. 
 
 ■* The Neptune, 1 W. Rob. 297. 
 
 » The Atlas, Lush. Adm. 518,
 
 282 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 salvors shall abandon their claims to salvage, and any such bar- 
 gain will be disregarded.^ 
 
 If any persons intrude themselves upon salvors, unnecessarily, 
 and without any sufficient reason, all the services they perform, 
 are held to enure to the benefit of the original salvors.^ If prop- 
 erty is saved by a vessel, and afterwards delivered over to another 
 vessel to be brought into port, the latter vessel does not acquire, 
 by such transfer, any of the riglits of the former vessel, as against 
 the property saved. ^ 
 
 SECTION IV. 
 
 WHAT AMOUNTS TO A SALVAGE SERVICE. 
 
 If the peril encountered be something distinctly beyond ordi- 
 nary danger, something which exposes the property to destruction 
 unless extraordinary assistance be rendered, it is enough to found 
 a claim for salvage. But if the master can, by a proper use of 
 the means he possesses, save the property, the law presumes that 
 he will, and that the salvors' interference was unnecessary.* But 
 
 • The Ship Henry Ewbank, 1 Sumner, 400, per Story, J. 
 
 « The Blenden Hall, 1 Dods. 414; The Fleece, 3 W. Rob. 278; The Mary, 2 
 Wheat. 123; The Brig John Gilpin, Olcott, Adm. 77. See cases anle, p. 281, 
 n. 1. 
 
 ' A Box of Bullion, 1 Sprague, 57. 
 
 * Hand v. The Elvira, Gilpin, 60, 67; The Himalaya, Swabey, Adm. 515. In 
 The Anastasia, 1 Bened. Adm. 166, the libellant, who was a free passenger on 
 an Italian brig from Bermuda to New York, alleged that the vessel met with cold 
 weather and adverse winds, and on the twenty-third day, when the provisions and 
 water were getting short, the master, although the vessel was within thirty miles 
 of Liverpool, Nova Scotia, announced his intention of putting back for Bermuda, 
 and that thereupon the libellant took charge of the vessel and carried her into 
 Liverpool. It was also alleged that if this had not been done, the vessel would, in 
 the belief of the libellant, have been lost. Held, that no salvage was due. Bene- 
 dict, J., said : " It will be observed, that the libellant does not claim to have per- 
 formed any considerable labor or incurred any personal risk, or displayed any 
 extraordinary ability, but his demand is based upon the fact, as he claims it to 
 have been, that he assumed the extraordinary responsibility of overruling the 
 
 actual master of the vessel and carrying the vessel into Liverpool without 
 
 the direction, and contrary to the wishes of her master. That the libellant did 
 this is stoutly denied by the Italian master and crew ; but if he did, I cannot 
 under the facts of this case indorse his action to such an extent as to award him
 
 CH. VIII.] WHAT AMOUNTS TO A SALVAGE SERVICE. 283 
 
 even if the master could save the ship, the salvors may shew 
 that he would not have done so. So, if the salvors could have 
 prevented the wreck by timely assistance, but purposely delayed 
 this, they cannot be rewarded as salvors. If the assistance of the 
 salvors is requested by and rendered to the persons in charge of 
 another vessel, they cannot plead that they are not bound to pay 
 for the services rendered, on the ground that the vessel would 
 have been saved if left in her former position.^ 
 
 It is not necessary " that the distress should be actual or im- 
 mediate, or that the danger should be imminent and absolute ; it 
 is sufficient if, at the time the assistance is rendered, tlie ship has 
 encountered any damage or misfortune which might possibly ex- 
 pose her to destruction if the services were not rendered." ^ So, 
 if a vessel is " in a situation of actual apprehension, though not of 
 actual danger." ^ 
 
 That the property must be actually saved, and saved by those 
 claiming to be salvors, in order to lay the foundation for salvage 
 claims in admiralty, is quite certain.* But this general rule 
 should, we think, be qualified by saying that if the party en- 
 counters the danger, and does all he can to save the vessel, and 
 his services tend in some degree to preserve the vessel, compensa- 
 tion will be awarded to him, although the vessel is mainly pre- 
 served by other means.^ A distinction has also been taken be- 
 
 a salvage compensation therefor. The vessel had suffered no injury from stress of 
 weather. The allegation that she was short of provisions or water is not sustained 
 by the proofs. The master and crew were in good health, sufficient in number 
 for the ordinary crew of such a vessel ; and although their method of navigation 
 would doubtless be flir from satisfactory to most American seamen, they were com- 
 petent, after their fashion and in their own time, to complete their voyage. It is, 
 therefore, not a case where the extraordinary remedy which the libellant claims to 
 have resorted to, was necessary for the salvation of the vessel. It must be a 
 strong case, clearly proved, which would justify a court in commending, by a 
 salvage award, the assumption of such authority and such a responsibility." 
 ^ Stevens v. The S. W. Downs, 1 Newb. Adm. 458. 
 
 * The Charlotte, 3 W. Rob. 68, 71. 
 
 ^ The Raikes, 1 Ilagg. Adm. 246 ; The Phantom, Law Rep. 1 Adm. 58 ; The 
 Joseph C. Griggs, 1 Bened. Adm. 80. See ante, p. 277, n. 4. 
 
 * Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651 ; The Henry Ewbank, 1 
 Sumner, 400, 416 ; Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, 428 ; 
 Emerson v. Proceeds of The Bark Pandora, 1 Newb. Adm. 438 ; The Edward 
 Hawkins, Lush. Adm. 515. 
 
 '•> Thus in McGinnis.u. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean,
 
 28-1 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 tween salvors who Tolunteer to go out and salvors who are 
 employed by a ship in distress, and it is said that the former are 
 entitled to nothing if not successful, while the latter are to be paid 
 according to their efforts made, even though the labor and service 
 may not prove beneficial to the vessel.^ 
 
 Salvors who bring the vessel to a position of safety, and then 
 give up the charge to a licensed pilot, are not prejudiced as to their 
 claim l)y an injury caused by the negligence of the pilot. ^ 
 
 It has been laid down as a general rule that evidence of bad 
 weather cannot be admitted to enhance the value of the salvage 
 service.^ It is, however, admitted by Mr. Justice Story that sub- 
 sequent perils and storms may enter, as an ingredient, into the 
 case, where they were foreseen, to show the promptitude of the 
 assistance, and the activity and sound judgment with which the 
 business was conducted.* And we should be inclined to give even 
 more weight to evidence of this nature. If a vessel is in need of a 
 salvage service, one of the questions is, What was the extent of the 
 peril from which the salvors rescued her ? In determining this, 
 the season of the year, the position of the vessel, the state of the 
 weather at the time, and what it might reasonably be expected to be 
 at that time of year, and the chance of relief if the salvors had not 
 
 359, a person was requested to take charge of a steamboat which was in the ice, in a 
 position of great danger. He did so, and did all that could be done under the 
 circumstances, and it was held, although the steamboat was saved by the peculiar 
 manner in which the ice broke up, that he was entitled to salvage. In The Ranger, 
 9 Jurist, 119, a vessel negligently got upon the sands. Another vessel saw her, 
 and at much risk crossed a shoal part of the sands and hastened to her assistance, 
 but before she arrived the first vessel got off. The court held that as no actual 
 salvage service was rendered, the vessel could not claim salvage, but as she was 
 induced to go to the assistance of the one on shore to assist her when she was in 
 danger, and as the danger was occasioned by negligence, the vessel was entitled 
 to the expenses she had incurred. In the case of The Albion, 3 Hagg. Adm. 254, 
 where a vessel attempted to assist another in towing a wreck, but could not render 
 any assistance, Sir John Nicholl, said : " She is entitled to some remuneration : 
 she has the merit of going to assist, — she showed a willingness, and her offer of 
 assistance was accepted ; but it is clear that she impeded the progress of the ser- 
 vice." And £ 100 were allowed, the value being £ 4,600. See also The E. U., 1 
 Spinks, 63; The Santipore, id. 231. See cases wUe, p. 281, n. 4. 
 
 ' The Undaunted, Lush. Adm. 90. 
 
 " Tiie Romarsund, Lush. Adm. 77. 
 
 ' The Emulous, 1 Sumner, 216. 
 
 ♦ Ibid.
 
 CH. VIII.] WHAT AMOUNTS TO A SALVAGE SERVICE. 285 
 
 rendered assistance, are all important elements. If the storm oc- 
 curred during the progress of the salvage service, although after 
 the vessel had been removed from the place where she was most 
 exposed to peril, we should consider that the evidence would be 
 admissible ; and so if it were clearly shown that the vessel would 
 have been exposed to the storm if it had not been for the assis1>- 
 ance of the salvors.^ 
 
 If the vessel be fraudulently imperilled by the master, this does 
 not defeat the claim of the salvors, unless they were parties to the 
 fraud, or were cognizant of it while it was going on, and did not 
 interfere to prevent it as far as they could, or unless they endeav- 
 ored to conceal the master's misconduct and screen him from 
 detection.^ 
 
 As it is equally a salvage service, and within admiralty jurisdic- 
 tion, whether the service be rendered at sea or when the vessel is 
 wrecked on the coast,^ and whether it be performed by seamen or 
 by landsmen ; * so in the case where the salvors neglected their 
 
 ^ In The Emulous, 1 Sumner, 216, a storm took place the day after the 
 vessel reached a port of safety. The salvage service was rendered in the 
 Vineyard Sound, the vessel, being aground on a reef on an island near the coast 
 of Massachusetts. Assistance was procured from the shore, and if the libellants 
 bad not performed the service, other persons would. In The Monkwearraouth, 
 9 Jurist, 72, Dr. Lusliingion said : " It does not seem that there was any serious 
 difBcuity to be overcome or danger to be encountered, in conducting this vessel 
 from where she was up the river Tees ; though I can well understand that, had 
 the weather become more violent, and the tow-rope parted, there might have 
 been serious risk of running upon one or the other sand. The services are short 
 but successful. The single point is, whether, under the circumstances, the tender 
 is suiBcient or not. And I think, in looking at this case, I must bear in mind not 
 merely the actual state of things, but what they might have been at that time of 
 year and in that state of the weather, and I think that this was a service not 
 lightly to be considered." Tender, £ 30 - £ 60 decreed. And in The Lockvvoods, 
 9 Jur. 1017, the same judge said: "When I look at the accident which had 
 occurred, the damage she had suffered, her disabled condition, the season of the 
 year, and the state of the wind and sea, I am strongly of opinion that, had she 
 been compelled to keep at sea, or to seek some distant port to leeward, she would 
 have been exposed to great risk and danger, and therefore I think she was in 
 urgent need of assistance. And in The Versailles, 1 Curtis, C. C. 362, Curtis, J., 
 refers to the change of the wind just after the vessel was got off a ledge of rocks, 
 as showing that but for the service she would have remained on. 
 
 " Brevoor v. The Fair American, 1 Pet. Adm. 87, 95. 
 
 ' Stephens v. Bales of Cotton, Bee, 170 ; The Jonge Bastiaan, 5 Rob. Adm. 322 
 
 * Stephens v. Bales of Cotton, Bee, 170.
 
 286 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 growing crops of cotton in order to save the property, this fact was 
 considered in awarding salvage.^ But one whose vessel had been 
 lost wliile conveying the things saved to another place of delivery, 
 is entitled only to freight, not salvage.^ 
 
 On the other hand, when a barge was brought in which was 
 found without anchor or crew, salvage was denied, because it was 
 shown to be usual to leave barges there in that condition,^ and 
 generally mere land service in unlading a shipwrecked vessel and 
 superintending those unlading her, is not a salvage service.* 
 
 If a vessel at sea is short-handed by reason of sickness,^ or other 
 casualty,^ and is navigated into port by part of the crew of another 
 vessel, this is to be treated as a salvage service. But when salvors 
 found a ship derelict and went on board, and in their haste forgot 
 to take with them a log glass, a watch, and a chart, it was held that 
 the ofiicer of a king's vessel, who was afterwards requested to 
 supply these articles, and payment offered, was not entitled to 
 dispossess the first salvors on the ground that they could not bring 
 the vessel safely to port without his assistance.''' 
 
 But it is said that a salvage service can only be founded in 
 the rescuing of a ship and cargo from some impending danger or 
 distress.^ It would, therefore, seem that if part of the crew were 
 captured, and subsequently recaptured and restored to their vessel, 
 the only claim of the recaptors would be on the ground of supply- 
 ing the deficiency in the number of the crew occasioned by the 
 capture.^ 
 
 ^ Stephens v. Bales of Cotton, Bee, 170. 
 
 * Stephens v. Bales of Cotton, Bee, 1 70. 
 » The Upnor, 2 Hagg. Adm. 3. 
 
 * The Watt, 2 AV. Rob. 70. 
 
 » The Harvest, 1 Sprague, 537; The Golondrina, Law Rep. 1 Adm. 334. 
 
 * Williamson v. Brig Alphonso, 1 Curtis, C. C. 376; The Active, 1 Eng. L. & 
 Eq. 644 ; Tlie Roe, Svvabey, Adm. 84 ; Sturtevant v. The Geo. Nicholaus, 1 Newb. 
 Adm. 449. In The Janet Mitchell, Swabey, Adm. HI, a vessel was met with in 
 distress, her captain having been drowned, and some one was required to manage 
 her. The mate of the vessel volunteered his services, and the vessels reached 
 their ports in safety. Salvage was allowed to the owners, master, and rest of the 
 crew. 
 
 ' The Blenden Hall, 1 Dods. Adm. 414, 419. 
 » The Mary, 1 W. Rob. 448, 457. 
 
 " The Mary, 1 W. Rob. 448. The master and part of the crew in this case 
 had been taken by pirates, and the vessel at the time she was discovered by the
 
 CH. VIII.] WHAT AMOUNTS TO A SALVAGE SEKVICE. 287 
 
 Compensation has been granted for keeping near a vessel in 
 distress, at the earnest request of her master and crew, although 
 but little aid was rendered.^ If a vessel is stranded near her port 
 of destination, and it becomes necessary to transship the cargo, this 
 is a salvage. service.^ So, if a vessel in distress is boarded at some 
 risk by a fishing smack, and an order for a steamer taken, com- 
 pensation as salvage is allowed.^ And generally the court may 
 give compensation, in the nature of salvage, for services which fall 
 below tliose necessary to found a strict salvage claim * And ad- 
 vice may in some cases amount to a salvage service.^ 
 
 In a case where some shipwrecked mariners were taken from a 
 ship which had rescued them, and they brought with them a box 
 of gold, which was taken on board the vessel, it was held that, 
 although this last vessel was not entitled to claim salvage, the 
 persons and property being in no danger at the time, yet that a 
 compensation was due beyond mere freight-money ; and that pro- 
 cess would lie against the property by a suit in rem, although the 
 parties had parted with the possession of the gold.^ 
 
 And salvage has been awarded for rescuing a raft of timber 
 which was floating out to sea.'^ 
 
 As a general rule, when two vessels come into collision, they 
 are bound to render assistance to each other if necessary ; ^ and it 
 is very clear that if the vessel in fault renders assistance to the 
 other, she cannot make any claim for salvage compensation, either 
 from the other vessel,^ or from the cargo on board.^*^ But if the 
 service is rendered to the one in fault, although the court would 
 
 alleged salvors was in the offing with a signal of distress flying. They went out 
 to her and brought her safely in, and afterwards joined in an expedition against 
 the pirates. The master and crew were ransomed, and then the pirates attacked. 
 The court held that salvage was only due for conducting the vessel into harbor. 
 
 1 Allen V. Ship Canada, Bee, 90 ; The Underwriter, 4 Blatchf. C. C. 94. 
 
 ^ The Westminster, 1 W. Rob. 229. 
 
 ^ The Ocean, 2 W. Rob. 91. The value of the ship, cargo, and freight was 
 £ 10,.500, and £ 40 were allowed. 
 
 * George v. Ship Arctic, Bee, 232. 
 
 ^ The EHza, Lush. Adm. 536. 
 
 ' A Box of Bullion, 1 Sprague, 57, 
 
 ' A Raft of Spars, Abbott, Adm. 485. 
 
 " See ante, Vol. I. p. 529. 
 
 » Thelola, 4 Blatchf C. C. 31. 
 
 ^^ Cargo ex Capella, Law Rep. 1 Adm. 356.
 
 288 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 be reluctant, if the service rendered in consequence of the collision 
 were but slight, to see it made the subject of salvage compensation, 
 yet in a proper case salvage would be decreed.^ 
 
 If a vessel is driven ashore in a gale of wind, or gets ashore by 
 any accident, she is generally a fit subject for a salvage service.^ 
 
 SECTION V. 
 
 OF DERELICT. 
 
 As to what is "derelict" there is no certain and accepted defi- 
 nition ; and perhaps none better than a vessel which is abandoned 
 and deserted by her crew without any purpose on their part of 
 returning to the ship, or any hope of saving or recovering it by 
 their own exertions.^ If so abandoned, the ship is derelict, 
 
 ' The Sappho, Swabey, Adm. 241. In The Hannibal, Law Rep. 2 Adm. 53, a 
 collision occurred between A and B. A was in tow of a steam-tug, which after 
 the collision rendered assistance to B. B was afterwards held in fault for the col- 
 lision, and it was held that the tug was entitled to salvage, although by statute 
 ships were bound mutually to assist each other after a collision. 
 
 ^ In The James T. Abbott, 2 Sprague, 101, where a vessel beating through the 
 Narrows in Boston Harbor got ashore on George's Island, and was pulled off by 
 a tug, the service was held to be one of salvage. In The M. B. Stetson, U. S. 
 D. C. Mass., Jan. 1867, where a vessel at anchor off the same island was driven 
 ashore in a gale of wind, Lowell, J., said : " Speaking generally, it may be said, 
 that the mere fact that a vessel is aground is enough to show that she is in a situ- 
 ation to have a salvage service rendered her. No doubt grounding in a tidal 
 harbor, or in the Mississippi river or some similar place, may often be in fact one 
 of the ordinary incidents of navigation, and not enough of itself to show danger 
 or distress. But I apprehend it will be difficult to find an adjudged case of a ves- 
 sel driven ashore in a gale of wind, and still more where the gale is still blowing, 
 in which any doubt has been expressed of her being in such danger as to be open 
 to salvage. See also The Rajasthan, Swabey, Adm. 171; The Alfen, id. 189; 
 The Himalaya, id. 515. 
 
 ' The Aquila, 1 Rob. Adm. 37 ; The Amethyst, Daveis, 20; Rowe v. Brig , 
 
 1 Mason, 372; The Elizabeth & Jane, Ware, 35 ; The Caroline, 2 W. Rob. 124 ; 
 The Charlotta, 2 Hagg. Adm. 361 ; The Effort, 3 Hagg. Adm. 165 ; The Windsor 
 Castle, 2 Notes of Cases, Supp. liii. ; Mason v. Ship Blaireau, 2 Cranch, 240; The 
 Watt, 2 W. Rob. 70; The Clarisse, 1 Swabey, Adm. 129. In The Minerva, 1 
 Spinks, 271, a vessel was anchored off the coast, and the crew in endeavoring to 
 escape were all drowned. The vessel was afterwards saved, and the court held 
 that it was a case of derelict.
 
 CH. VIII.] OF DERELICT. ' 289 
 
 although the vessel is afterwards saved by the crew who left her, 
 they having unexpectedly received assistance.^ 
 
 If the ship be only temporarily left, with the distinct purpose of 
 return, it is not abandoned, and therefore not derelict.^ And if 
 the master and crew remain on board, but give up the entire con- 
 trol of the vessel to the salvors, this does not make a derelict.^ 
 But if the property be actually deserted at sea, the presumption 
 that it is derelict exists, and casts upon those who left it the bur- 
 den of proving their purpose of return.* If the ship or property 
 be left without any intention whatever, either of return or other- 
 wise, as when the crew jump suddenly from a ship they think 
 sinking, on board another vessel, and are carried off in it against 
 their will, their own vessel is derelict de facto, but not de jure.^ 
 
 ' The Boston, 1 Sumner, 328. The vessel in this case was run into at sea. 
 The master and crew, supposing she was about to founder, took to their boats, and 
 afterwards met another vessel, by whose aid the next day their own vessel was 
 brought into port. Held to be a case of derelict. See also The Florence, 20 
 Eng. L. &Eq."607. 
 
 * There can be no doubt of the general principle that the master and crew may 
 leave a vessel, and she cannot be considered as a derelict, if they had the in- 
 tention of returning. Thus, if a vessel is left at anchor in the stream without 
 any one on board, the master and crew having left with the intention of return- 
 ing, this of course would not be a derelict. See The Upnor, 2 Hagg. Adm. 3. 
 See also The Bee, Ware, 232; Tyson v. Prior, 1 Gallis. 133. In Clarke v. Brig 
 Dodge Healy, 4 "Wash. C. C. 651, it was held that where a vessel imbedded in 
 the ice was drifting towards a shoal, upon which, if she had struck, she would 
 have probably gone to pieces, and the crew left her on account of this danger, 
 with the intention of returning if the danger should be escaped, the vessel was 
 not a derelict. See also The John Perkins, U. S. C. C. Mass., 21 Law Rep. 87, 
 94; The Schooner Emulous, 1 Sumner, 207; The Island City, 1 Black, 121, 1 
 Clifford, C. C. 219, 221 ; The Joseph C. Griggs, 1 Bened. Adm. 80 ; The Cham- 
 pion, Brow. & L. Adm. 69. But if a vessel is deserted de facto, and while ex- 
 posed to great danger is rescued by salvors, she will, it would seem, be considered 
 a derelict, if the master and crew at the time they lefl her had no intention of 
 returning, or rational hope of regaining possession of the vessel, though they 
 endeavored to take possession after the salvors had rendered assistance. The 
 Sarah Bell, 4 Notes of Cases, 144. See also The Brig John Gilpin, Olcott, Adm. 
 77. 
 
 * Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421. 
 
 * The Cosmopolitan, 6 Notes of Cases, Supp. xvii., in the Irish Admiralty. 
 
 * The Fenix, Swabey, Adm. 13 ; The Cosmopolitan, 6 Notes of Cases, Supp. 
 xvii., in the Irish Admiralty. In this latter case, as soon as it was found that their 
 vessel had not sunk, the master and crew desired to return, but were prevented 
 
 YOL. 11. 19
 
 290 LAW AND JURISDICTION OP ADMIRALTY. [BOOK IL 
 
 But it has been held that where the master and crew leave the 
 vessel for the preservation of their lives, a mere intention of send- 
 ing a steamer to look for the vessel does not prevent it from 
 being derelict. ^ 
 
 So a ship or goods sunk under the waters are generally derelict, 
 but would not be so if the owner had not lost the hope and pur- 
 pose of recovering his property, nor ceased his efforts for that 
 purpose.^ If goods are saved from a wreck, and the crew are 
 taken off at the same time, the goods cannot be considered as 
 derelict.^ Nor are they so considered, where the vessel goes to 
 pieces on the shore and the cargo floats out, if the master is using 
 exertions to save the goods, unless indeed where they float out to 
 sea.^ 
 
 And in a case where a vessel met another at sea in a disabled 
 condition, and took her crew off, and proceeded on her way, and a 
 few hours afterwards went back, and put the second mate and 
 some seamen on board the disabled vessel, who brought her safely 
 into port, it was held that the vessel was not a derelict, although 
 her own officers and crew would not go on board again. ^ 
 
 by the master of the vessel on which they were. The court considered that the 
 leaving the vessel was under a momentary impulse for the purpose of saving their 
 lives, and that it could not be considered as an abandonment, because they wished 
 to go back as soon as their judgment returned. Stress was also laid on the fact 
 that the leaving the vessel the moment the crew did tended rather to increase than 
 diminish their power to save the vessel. But for these facts, the case is similar to 
 that of Mason v. Ship Blaireau, 2 Cranch, 240, where the vessel, deserted by her 
 crew, who jumped on board the vessel which ran into them, was considered a 
 derelict. In The Pickwick, 20 Eng. L. & Eq. 628, the vessel came into collision 
 with another, and the master and crew, with the exception of three men, at once 
 abandoned her through fear. The three men afterwards left, and three days 
 after the collision she was found deserted. Dr. Lushington said : " It has never 
 been held that an abandonment at the instant of collision constitutes derelict, but 
 I can entertain no doubt that, in the legal sense of the word, this vessel was a 
 derelict to all intents and purposes, because three days had elapsed from the time 
 of the collision." 
 
 ' The Coromandel, Swabey, Adm. 205. 
 
 ' The Barefoot, 1 Eng. L. & Eq. 661 ; Bearse v. Pigs of Copper, 1 Story, 314. 
 See also The Thetis, 3 Hagg. Adm. 14. 
 
 ' Warder v. La Belle Creole, 1 Pet. Adm. 31. 
 
 * The Samuel, 4 Eng. L. & Eq. 581. 
 
 ' The Lovett Peacock, U. S. D. C. Mass., 1867. Lowell, J., said: "The ques- 
 tion arises and has been earnestly argued, whether this was a case of derelict. I
 
 CH. VIII.] OF DERELICT. 291 
 
 If a ship or property be left, though not derelict, one who in 
 good faith takes possession as salvor, is not a trespasser, but has 
 his reasonable claim for salvage, according to the good he actually 
 does.i 
 
 By the common law, the finder of lost property has an absolute 
 title to it against all the world, except the owner. In England, 
 however, derelicts found at sea belonged to the Lord High Admi- 
 ral, until they were given up by him, in the reign of Queen Anne, 
 to the sovereign, who, for the most part since that time, has con- 
 tinued to take them in a capacity distinguishable from that of 
 sovereign. Wrecks, by which is meant property cast on the shore, 
 often in England belong to the lord of the manor, who is author- 
 ized to keep them a year and a day for the owner, and if none 
 appears at the expiration of that time, the property vests abso- 
 lutely in the lord.^ 
 
 What disposition is to be made of property found abandoned, 
 when no one appears to claim it, cannot be said to be settled in 
 this country. In an early case in Massachusetts, it was held that 
 after the salvage was paid the property belonged to the govern- 
 ment, to hold in trust till an owner should appear .^ In another 
 
 cannot think it was, because the final abandonment by the owners and the occupa- 
 tion by the salvoi-s were contemporaneous acts, and the one could probably never 
 have happened unless in a situation where the other was possible, because the 
 boat of the schooner was not capable of taking off all her crew." 
 
 ^ It would seem, however, to be well settled on principle and authority, that if 
 a vessel is not a derelict, the master and his owners have the power, unless there 
 is some immediate danger, to decline any assistance, and to choose their own 
 salvors, and if persons render them assistance against their will, these persons will 
 not only recover nothing for their services after the prohibition, but may forfeit 
 comjiensation for their prior services. The Glascow Packet, 2 W. Rob. 306 ; The 
 Barefoot, 1 Eng. L. & Eq. 661 ; The Glory, 2 Eng. L. & Eq. 551. The case of 
 The John Gilpin, Olcott, Adm. 77, where an opposite doctrine is intimated, pro- 
 ceeded on the ground that the vessel was derelict. 
 
 '^ The King v. Property Derelict, 1 Hagg. Adm. 383 ; The King v. Two Casks 
 of Tallow, 3 id. 294 ; The King v. Forty-Nine Casks of Brandy, 3 id. 257. See 
 also The Merchants' Shipping Act of 1854, 17 & 18 Vict, c 104, §§ 4 71^75, 
 for the present state of the law on this subject in England. 
 
 ^ Peabody v. The Proceeds of Twenty-Eight Bags of Cotton, U. S. D. C. Mass., 
 1829, 2 Am. Jurist, 119. The property in this case was found at sea and libelled 
 for salvage, and one half was decreed. Twenty-two years afterwards, no owner 
 having appeared, a supplemental libel was filed by the finders to recover the bal- 
 ance ; but the court decreed as stated in the text.
 
 292 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 district of this country, the practice, however, is to keep the pro- 
 ceeds a year and a day after the salvage is paid, and if no owner 
 then appears, to pay them to the finder.^ This we think is the 
 more correct doctrine, and we should suppose that the court 
 might in its discretion require bonds from the finder to restore the 
 value of the property, if the owner should appear and claim it. 
 
 SECTION VI. 
 OF COMPENSATION IN CASES OF SALVAGE. 
 
 In respect to salvage compensation, the long-settled practice of 
 the admiralty court has been to view it not as mere pay on the 
 principle of a quantum meruit, or as a remuneration pro opere et 
 labors, but as a reward given for bravely encountering the perils 
 of the seas, that the general interests of navigation and the com- 
 merce of the country may be advanced.^ But the court does not 
 act on the same liberal principle as in prize cases.^ And it has 
 been said that in salvage claims arising on our western rivers, the 
 precedents of courts administering the admiralty law on the ocean, 
 in regard to the amount of compensation cannot be safely adopted, 
 because the peril of life is generally much less.* 
 
 As to the amount of salvage which shall be decreed, or the pro- 
 portions in which it shall be given to salvors, there is no fixed rule 
 nor binding precedent, nor practice in admiralty.^ Indeed, it can 
 
 * See Marvin on Salvage, 143, note 1. In M'Donough v. Dannery, 3 Dall. 
 188, the vessel had been captured and then abandoned, aftd afterwards brought 
 into court by the salvors. The district court decreed one third of the gross pro- 
 ceeds as salvage. The case was then taken up by appeal to determine whether 
 the residue should be returned to the original owners or to the captors. The 
 Supreme Court expressed some doubt whether on abandonment by the captors the 
 salvors were not entitled to the whole, or at least to the greater jjortion of the 
 property, but as the salvors did not appeal this question was not decided. 
 
 * The Sarah, 1 Rob. Adm. 313, note; The William Beckford, 3 Rob. Adm. 
 355; The Hector, 3 Hagg. Adm. 90, 95 ; The Clifton, id. 117, 120; The Indus- 
 try, id. 203, 204 ; Mason v. The Blaireau, 2 Cranch, 240, 266 ; and cases passim. 
 
 ' The Vine, 2 Hagg. Adm. 1. 
 
 * McGinnis v. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. 
 359. 
 
 ' In The Thetis, 3 Hagg. Adm. 14, 62, Sir Christopher Rohinson said : " The 
 practice of the last century may be described in the following few pages, taken
 
 CH. VIII.] COMPENSATION IN CASES OF SALVAGE. 293 
 
 scarcely be said that there is any rule whatever, except that ancient 
 one which gives to the salvors one half of the property saved, when 
 that property was absolutely " derelict " or abandoned ; and Lord 
 Stowell has declared this to be " obsolete," as a fixed rule.^ And 
 the position seems now to be established, that the reward in dere- 
 lict cases should be governed by the same principles as in other 
 salvage cases, namely, danger to property, value, risk of life, skill, 
 labor, and the duration of the service.^ It may be taken as the 
 prevailing disposition of admiralty courts, or, as has been said, as 
 the general sense of the maritime law, that salvage on derelict 
 should not in ordinary cases go below a third, and never, or 
 almost never, above one half.^ And we are of opinion that English 
 and American courts would now hesitate to give so much as half, 
 unless in cases of unquestionable derelict, nor even then, unless 
 there were in the case peculiar circumstances of exertion, peril, 
 or merit.^ The rule of a moiety was formerly applied much more 
 
 from a book of MS. notes of the late Sir Edward Simpson, to which my prede- 
 cessor often referred : ' The maritime laws of England fix no certain proportion 
 in cases of salvage, but are governed by circumstances of danger, hazard, trouble, 
 and expense of saving ; an eighth or tenth, except in cases of extreme hazard, is 
 
 as much as is usually allowed In some cases of extreme hazard, one third 
 
 of the value, or one fourth, or one sixth, or one ninth, or a sum of money on ac- 
 count of salvage is given.'" See also The Adventure, 8 Cranch, 221, and cases 
 passim. In Bond v. Brig Cora, 2 Wash. C. C. 80, the court said : " In appre- 
 ciating and properly rewarding such services, no rule but that which a sound 
 discretion may suggest, Upon a view of all the circumstances of each particular 
 case, can be laid down." See The Hopewell, 2 Spinks, 259. 
 
 * The Aquila, 1 Rob. Adm. 37, 45. 
 
 2 The Florence, 20 Eng. L. & Eq. 607; The John E. Clayton, 4 Blatchf. C. C. 
 372. This doctrine was assented to in Post v. Jones, 19 How. 150, 161, but a 
 moiety was nevertheless allowed. So in The George Dean, Swabey, Adm. 290. 
 
 In Rowe v. Brig , 1 Mason, 372, 377, Mr. Justice Story considered the old 
 
 rule of giving a moiety in case of a derelict, as a subsisting but flexible rule. 
 See also The Charles Henry, 1 Bened. Adm. 8. The doctrine of the text was 
 early asserted in this country. Flinn v. The Leander, Bee, 260. See also 
 Two Hundred and Ten Barrels of Oil, 1 Sprague, 91. 
 
 ' Tyson v. Prior, 1 Gallis. 133, 136; Rowe v. Brig , 1 Mason, 372, 377; 
 
 Post V. Jones, 19 How. 150, 161 ; The Frances Mary, 2 Hagg. Adm. 89 ; The 
 Reliance, 2 Hagg. Adm. 90, note; The Effort, 3 Hagg. Adm. 165, 167; The El- 
 well Grove, 3 Hagg. Adm. 209, 221. 
 
 * See The Minerva, 1 Spinks, 271. In The Inca, Swabey, Adm. 370, an appeal 
 to the Privy Council from the vice-admiralty court of the Bahamas, the court 
 below awarded salvage in kind to the amount of sixty-six per cent on dry cotton
 
 294 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 severely against the owners of the saved property, though it was 
 seldom exceeded,^ except where the property was of small amount, 
 and the labor great.^ 
 
 "We have already said that effective services by steamboats should 
 be particularly encouraged ; ^ and it has been held that if a steam 
 tug is kept constantly employed during the winter on a dangerous 
 station, and at a heavy expense, for the express purpose of render- 
 ing salvage and towage service to vessels in distress, her owners 
 are entitled to the full remuneration usually awarded to salvors 
 who peril life and property, though the particular service may not be 
 accompanied by much danger to, or labor on the part of, the tug.* 
 
 Judge Sprague, in one case where a salvage service was per- 
 formed by a tug in Boston Harbor, said : " In estimating the 
 amount of compensation, one criterion is, for what would the 
 owner of the tug, if he had known all the circumstances of the 
 case, have agreed to let his boat go down to get the vessel off ; he 
 
 and seventy-six on wet cotton, and seventy per cent on the net sales of the ma- 
 terials and stores. The court held that there was no precedent for awarding 
 more than half, except in cases of derelict, and reduced the sum awarded to this 
 amount. 
 
 ' Sprague v. Barrels of Flour, 2 Story, 195 ; The Britannia, 3 Hagg. Adra. 153. 
 
 - The William Hamilton, 3 Hagg. Adm. 168, and note ; The Jonge Bastiaan, 5 
 Rob. Adm. 322 ; The Jubilee, 3 Hagg. Adm. 43, note ; The AVaterloo, Blatchf. 
 & H. Adm. 114. In the case of Two Hundred and Ten Barrels of Oil, 1 Sprague, 
 91, a whale ship discovered the wreck of another whale ship on a reef one thou- 
 sand miles from any country whence assistance could be rendered, in a derelict 
 condition. The captain of the salving ship, hoping to save the crew, went on 
 board in his boat, but found no one ; he afterwards cut a hole in the deck to get 
 out the oil, but did not succeed in his endeavor ; he also cut away the masts to 
 prevent the vessel from going to pieces. Two days after the discovery the wreck 
 went to pieces and the next day the oil in question was picked up. During this 
 time the vessel nearly drifted on the reef in a calm. The weather was generally 
 rough and squally. The master of the wrecked vessel on his arrival in port sold 
 the ship and cargo for fifty-five shillings. The salving ship was fitted out for a 
 voyage of three and a half years. At the time of the service she had taken one 
 thousand barrels of oil and returned home in about two years and seven months 
 from the time of her departure with nearly a full cargo. The market value at 
 New Bedford of the property saved was S 6,740 ; and the court decreed $5,740 
 to the libellants. In Llewellyn v. Two Anchors, 1 Bened. Adm. 80, the pro- 
 ceeds in court amounted to $107. The owners had been notified and did not 
 appear, and the whole balance after paying costs was awarded. 
 
 * See ante, p. 274. 
 
 * Virden v. The Brig Caroline, U. S. C. C. Delaware, 1857, 6 Am. Law Reg. 
 222.
 
 CH. ^^II.] C05IPEXSATI0N IX CASES OF SALVAGE. 295 
 
 to receive nothing if not successful." ^ " It is obvious, however," 
 as has been said by Judge Lowell, " that this rule will not answer 
 for all or most cases, because it takes into view only one side of 
 the question, the risk, labor, and exposure of the salvors, without 
 regard to the value of their services to the other party. Where 
 the necessity is more urgent, and no time is given to bargain, and 
 to choose between different offers, another element, namely, what 
 would the owners of the property be willing to give rather than 
 that the service should not be rendered, may fairly be looked at." ^ 
 In some English cases, there has been a disposition to discrim- 
 inate between articles easily saved, as gold and silver coins, or 
 bullion,^ and more bulky and less movable articles ; giving a less 
 proportion of the former than of the latter. But we know nothing 
 like this in American decisions ; * nor is this principle well sus- 
 tained in England.'^ 
 
 ^ The James T. Abbott, 2 Sprague, 102. 
 
 ^ The M. B. Stetson, cited 2 Sprague, 102, note. In The Acacia, Same Court, 
 Lou-ell, J., the steamer Saxon, valued at S 140,000, with a cargo valued at over 
 S 200,000, was on her way from Boston to Philadelphia, and when off Scituate 
 saw a vessel in distress at anchor, and towed her to Boston. The time occupied 
 was about seven hours. It was in evidence that a tug could have been hired to 
 perform the job for about S 300. The court held that the same rule was not 
 applicable to such a vessel and a tug seeking a job, and awarded S 2,200. The 
 value of the property saved was 842,000. 
 
 ^ The Emma, 2 W. Rob. 315. The remark of Dr. Lushington in this case, does 
 not seerti to be more than a dictum. It was contended that the court were bound 
 to look to the services rendered to the ship and cargo, separately and apart, and 
 stress was laid on the fact, that the cargo was not, from its nature, liable to dam- 
 age by immersion in the water. Dr. Lushington said : " The ordinary usage of 
 the court is to take the whole value of the ship and cargo, and assess the amount 
 of the remuneration upon the whole, each paying its due proportion ; I am not 
 aware, excepting in the instance of silver or bullion, that any distinction has ever 
 been taken, or that parties have been permitted to aver, that the services were of 
 greater importance to the ship than they were to the cargo, and therefore, that 
 
 the ship should bear the lesser burden or vice versa With respect to silver 
 
 and bullion, it is true that a distinction is wisely and properly permitted, and this 
 upon the consideration that it is more easily rescued and preserved, than more 
 bulky articles of merchandise." 
 
 * See Warder v. La Belle Creole, 1 Pet. Adm. 31, 46. We are not aware that 
 this precise point has been recently determined in this country-, but no discrimina- 
 tion is made in favor of bullion in general average. See ante. Vol. I. p. 456, 
 note 2. 
 
 * See The Jonge Bastiaan, 5 Rob. Adm. 322 ; The Yesta, 2 Hagg. Adm. 189, 
 193, per Sir Christopher Robinson.
 
 296 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 From one half, the salvage claim may be diminished by the cir- 
 cumstances to mere wages or a very slight compensation.^ It is 
 obvious, therefore, that the amount is always dependent upon the 
 particular facts and merits of each case, and the view which the 
 court may take of them. Hardship, long and severe labor, risk of 
 life,^ exposure to injury of any kind, danger readily encountered, 
 enterprise and energy,^ and the large value at risk,* and the num- 
 ber of those among wliom the salvage must be divided. These are 
 the elements which swell the salvage, and the want of these of 
 course diminishes it. Where a raft of timber was found adrift in 
 New York harbor and taken on shore and watched for several 
 days, the court decreed fifty dollars as salvage.^ 
 
 Generally, we presume, salvors are not allowed freight eo 
 
 ' The Purissima Concepclon, 3 W. Rob. 181, 8 Notes of Cases, 503. In The 
 Duke of Clarence, 1 W. Rob. 346, where £25 were tendered on the ground that 
 the service was one of mere ordinary labor, Dr. Lusldngton said : " I apprehend 
 the term, as applied to questions of salvage, to mean that labor which may be 
 performed by an individual not possessed of nautical skill, but of mere strength of 
 arm and limb. When a vessel approaches the shore, mere ordinary labor is 
 always to be obtained in great abundance, but labor united with nautical skill, 
 being scarce, is more difficult to be procured. When obtained, its value must be 
 estimated by a somewhat higher consideration than mere ordinary labor." £35 
 were awarded. 
 
 * The Ebenezer, 8 Jurist, 385 ; The William Hannington, 9 Jurist, 631 ; The 
 William Beckford, 3 Rob. Adm. 355. 
 
 ^ In The Brig Susan, 1 Sprague, 504, Sprague, J., said : " There is one element 
 which I have heretofore taken into view, in some cases, and which is not to be 
 overlooked in this. It is that encouragement should be given to competent per- 
 sons upon dangerous parts of our coast, to associate together, and keep themselves 
 organized, with suitable boats and other appliances, to render prompt and efficient 
 assistance to vessels in distress." 
 
 * When the property is large, a greater sum is given than when it is small. 
 The Ship Henry Ewbank, 1 Sumner, 400, 412; The Earl of Eglinton, Swabey, 
 Adm. 7. But where the property is small, a greater proportion of the value is 
 given than when the property is great. The Blenden Hall, 1 Dods. 414, 421; 
 The Waterloo, 2 Dods. 433, 442 ; The Vesta, 2 Hagg. Adm. 189 ; Tyson v. Prior, 
 1 Gallis. 133 ; Smith v. The Stewart, Crabbe, 218. In The Ocean, 3 Hagg. Adm. 
 194, where an anchor and a chain cable, together with a buoy and buoy rope 
 of the value of £20 were found by some mariners who had gone in search of 
 anchors, etc., the court decreed two fifths, after deducting expenses. This suit 
 was brought to determine the amount due in similar cases, and may be consid- 
 ered as a leading case. 
 
 » A Raft of Spars, Abbott, Adm. 485.
 
 CH. VIII.] COMPENSATION IN CASES OF SALVAGE. 297 
 
 nomine, in addition to salvage, for bringing a cargo into port, but 
 in one case, where a moiety was decreed to the salvors, freight was 
 allowed on the other moiety. ^ 
 
 Whether services are rendered at sea, or near the coast, is an 
 important element in determining the amount of compensation ; 
 as the chance of the vessel's being saved is much greater when 
 near the shore, than when at sea.^ 
 
 If the salvor's vessel is injured or lost whilst engaged in the sal- 
 vage service, the presumption is that the injury or loss was caused 
 by the necessities of the service, and the burden of proof is on the 
 defendants, to show that the loss was caused by the fault of the 
 salvors.^ 
 
 Perhaps the courts are disposed to encourage nothing more than 
 salvage efforts for the purpose of saving life. The court has no 
 power to decree salvage for saving life merely.* " But if it can be 
 connected with the preservation of property, whether by accident 
 or not, then the court can take notice of it, and it is always wilHng 
 to join that to the animus displayed in the first instance." ^ It 
 has been held that if the lives of the crew are saved by one vessel, 
 and the property by another, the one saving the crew is entitled to 
 salvage.^ But there seems to be no reason why salvage should be 
 allowed in such a case and not where the crew are saved, but no 
 assistance rendered to the vessel by any one, and the distinction is 
 repudiated by Dr. Lushington.''' 
 
 1 Post V. Jones, 19 How. 150, 161. The goods in this case were carried by the 
 salvors over 20,000 miles. 
 
 ^ In The Lovett Peacock, U. S. D. C. Mass., 1867, Lowell, J., said: "I have 
 always strongly insisted upon the distinction between a vessel disabled at sea and 
 abandoned there, and one abandoned or a wreck on a frequented coast where as- 
 sistance can be obtained ; because an attention to these distinctions seems to me 
 to reconcile many of the most apparently conflicting decisions upon the quantum 
 of salvage. The true point here is that not merely the risk the vessel is in of 
 present or early damage or destruction must be looked at, but the peril the owner 
 is in of ever recovering his property." 
 
 ' The Thomas Blyth, Lusli. Adm. 16. 
 
 * The Zephyrus, 1 W. Rob. 329. 
 
 * The Aid, 1 Hagg. Adm. 83 ; The Emblem, Daveis, 61 ; Sturtevant i-. The 
 Geo. Nicholaus, 1 Newb. Adm. 449 ; 210 Barrels of Oil, 1 Sprague, 91. 
 
 8 The Queen Mab, 3 Hagg. Adm. 242 ; The Mulhouse, U. S. D. C. Florida, 
 Marvin, J., 22 Law Rep. 288. 
 
 ' The Zephyrus. 1 W. Rob. 329. The Queen Mab is explained on the ground
 
 298 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 If slaves are regarded as property, they form an exception to 
 this rule, and the owner of them contributes according to their 
 value. ^ 
 
 Nevertheless, these eiforts to save life do not command a com- 
 pensation so much higher than is given for the saving of property 
 as might be expected, for the reason that it is not a deviation 
 if the vessel goes out of her way to save life, and therefore the 
 insurance is not forfeited ; ^ whereas it is a deviation to wander for 
 the purpose of saving property,^ and compensation must be made 
 for the forfeiture of the insurance.^ This deviation the master 
 by the law merchant has a right to make, if in the exercise, of a 
 
 that the vessel was a derelict, and the court had not to contend against any oppo- 
 sition on the part of the owners of the Queen Mab. This subject is now provided 
 for by the Merchants' Shipping Act of 17 & 18 Vict. c. 104, § 459, which enacts 
 that salvage for saving life shall be paid before all other claims ; and if, after 
 deducting the expenses incurred, the value of the property shall not be sufficient 
 to pay the amount of salvage due in respect of such life or lives, the Board of Trade 
 may, in its discretion, award such sums as it may deem fit, in whole or in part 
 satisfaction of any amount of salvage so left unpaid. See The Bartley, Swabey, 
 Adm. 198; The Coromandel, id. 205; The Eastern Monarch, Lush. Adm. 81; 
 The Pensacola, Brow. & L. Adm. 206 ; The Fusilier, id. 341. In The Clarisse, 
 Swabey, Adm. 129, the court allowed salvage for preserving life, although the 
 statute had been passed between the time of the rendering of the service and of 
 the decision. See under the Act of 9 & 10 Vict. c. 99, Silver Bullion, 2 Spinks, 
 70. The 17 & 18 Vict, does not apply to the salvage of life from a foreign ship 
 on the high seas. The Johannes, Lush. Adm. 182. But the provisions of this 
 act are extended by Act of 24 Vict. c. 10, § 9, "to the salvage of life from any 
 British ship or boat, wheresoever the services may have been rendered, and from 
 any foreign ship or boat, where the services have been rendered either wholly or 
 in part in British waters." 
 
 » Jerby v. 194 Slaves, Bee, 226; Flinn t'. The Leander, id. 260. See also 
 ante, Vol. L p. 324, n. 6. 
 
 ' The Boston, 1 Sumner, 328; Bond v. Brig Cora, 2 Wash. C. C. 80; Law- 
 rence V. Sydebotham, 6 East, 45 ; The Henry Ewbank, 1 Sumner, 400 ; Settle v. 
 St. Louis Perpet. Ins. Co. 7 Misso. 379 ; A Box of Bullion, 1 Sprague, 57. 
 
 = Bond V. Brig Cora, 2 Wash. C. C. 80 ; Mason v. Ship Blaireau, 2 Cranch, 
 240; Warder v. La Belle Creole, 1 Pet. Adm. 31 ; 210 Barrels of Oil, 1 Sprague, 
 91. 
 
 * See Bond v. Brig Cora, 2 Wash. C. C. 80 ; Warder v. La Belle Creole, 1 
 Pet. Adm. 31 ; Tiie Nathaniel Hooper, 3 Sumner, 542, 578. But in The Dev- 
 eron, 1 W. Rob. 180, Dr. LiisJdnfflon held that in apportioning the remuneration 
 in salvage cases every vessel was to be considered as uninsured, on account of the 
 inconvenience of considering whether a vessel had in each case forfeited its insur- 
 ance. See also The Orbona, 1 Spinks, 161.
 
 CH. VIII.] COMPENSATION IN CASES OF SALVAGE. 299 
 
 sound discretion he deems it expedient.^ And if the only means 
 of saving life are by saving property also, as where a vessel was 
 taken in tow, because the crew could not be rescued in any other 
 way, this would not constitute a deviation.^ 
 
 Under ordinary circumstances, the owners of the saving ship 
 have one third of the amount decreed,^ and may have more if the 
 salvage service exposes their ship to peculiar danger.* 
 
 The owners of steamers which perform a salvage service are 
 entitled to a liberal compensation.^ 
 
 1 The Ship Nathaniel Hooper, 3 Sumner, 542, 579. 
 
 ' Crocker v. Jackson, 1 Sprague, 141. 
 
 * The Henry Ewbank, 1 Sumner, 400; The Sch. Boston, Id. 398; Mason v. 
 Ship Blaireau, 2 Cranch, 240; Bond r. The Cora, 2 Pet. Adm. 361 ; The Ame- 
 thyst, Daveis, 20, 28 ; Concklin v. Brigantine Harmony, 1 Pet. Adm. 34, 43, 
 note; Evans v. The Ship Charles, 1 Newb. Adm. 329 ; Union Tow Boat Co. v. 
 The Bark Delphos, 1 Newb. Adm. 412; The Lovett Peacock, U. S. D. C. Mass., 
 1867. 
 
 ^ In The Waterloo, Blatchf. & H. Adm. 114, the vessel claiming salvage was 
 bound from Havana to Cadiz. In latitude 34° N. 75' W. she found the Waterloo 
 a derelict, and with great difficulty and danger towed her into New York. Two 
 thirds of the amount decreed was allowed the owners, on the ground that the risk 
 was very great, and that the master and crew should not have imperilled property 
 worth $ 72,000, to rescue property worth $ 40,000. In the following cases one 
 half of the amount decreed has been allowed the owners. The Columbia, 3 
 Hagg. Adm. 428 ; The Martha, 3 Hagg. Adm. 434 ; The Waterloo, 2 Dods. 433 ; 
 The Himalaya, Swabey, Adm. 515; The Rising Sun, Ware, 378, 385 ; Taylor 
 V. Ship Cato, 1 Pet. Adm. 48, 68; The Cumberland, U. S. D. C. Mass., 1815, 
 cited 1 Sumner, 427; Montgomery v. The T. P. Leathers, 1 Newb. Adm. 
 421. In The Nicolina, 2 W. Rob. 175, one fifth was allowed. In The Hope, 3 
 Hagg. Adm. 423, about two fifths; and in Smith v. The Stewart, Crabbe, 218, one 
 thirteenth. In The Albion, 3 Hagg. Adm. 254, where a fishing smack performed 
 a salvage service, seven twentieths were given. In The Deveron, 1 W. Rob. 180, 
 and in The Louisa, 2 id. 22, also cases of fishing smacks, seven sixteenths. In 
 The Holder Borden, 1 Sprague, 144, the vessel had been wrecked, and the mas- 
 ter, in order to rescue part of the crew which had been left on a desolate island, 
 and a quantity of oil which was also left there, purchased a brig, and in payment 
 gave a draft upon one of the owners of the wrecked ship, who accepted and paid the 
 draft. In this brig the master went to the island took on board the crew and 
 oil and brought them safely home. The net proceeds saved were in value 
 $ 17,628.57. The court held that the owner by accepting and paying the draft 
 became the sole owner of the brig, and was entitled to S 12,953.12. 
 
 5 The Martin Luther, Swabey, Adm. 287; The Enchantress, Lush. Adm. 96. 
 One half of the amount decreed was allowed in The Howard, cited 3 Hagg. Adm. 
 256, and in The Earl Grey, 3 Hagg. Adm. 3G3 ; and in The Beulah, 1 W. Rob.
 
 300 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 Compensation has been refused the owners where the master had 
 made a valid contract to perform the service.^ And only a re- 
 muneration for wear and tear was allowed where the service was 
 performed by boats from the shore.^ 
 
 Compensation was entirely refused to the owners where the 
 vessel was abandoned at sea, and the crew in the boats fell in with 
 another vessel which was also abandoned, and which they saved.^ 
 If a vessel is met with short-handed at sea, and assistance is ren- 
 dered by sending some men on board, this is a salvage service, as 
 we have seen, and one for which the owners of the vessel render- 
 ing assistance are entitled to some compensation, but not to a 
 great one unless the assistance thus rendered materially weakened 
 their own vessel.'* If the vessel is engaged in a lucrative employ- 
 ment at the time of rendering a salvage service, this of course is 
 an essential ingredient in estimating the compensation to be 
 
 477, over four fifths were allowed. In The Spirit of the Age, Swabey, Adm. 
 286, the court allowed the damage done to the vessel and a reasonable sum for 
 the loss of services to be deducted before division, and then allowed the owners 
 one half of the moiety, remarking that after such deductions more than a moiety 
 was never allowed. This point was raised but not decided in The Island City, 1 
 Black, 121, 129. When this case was before the circuit court, 1 Clifford, C. C. 
 224, one third was allowed the owners. It was not, however, then claimed that 
 they were entitled to more. In The Paris, 1 Spinks, 289, one fourth of the 
 amount decreed was allowed the owners. In The Ring, before Mr. Bryan, sitting 
 as referee, and who was afterwards judge of the United States District Court, 
 South Carolina, 2 Am. Law Review, 259, three fifths were allowed the owners, 
 In The Underwriter, 4 Blatchf. C. C. 94, when twenty-five hundred dollars were 
 awarded a steamer for remaining by a ship ashore until assistance came, two 
 thousand were given the owners, one hundred ajiiece to the master and mate, and 
 the rest was divided among the crew. In The Rajasthan, Swabey, Adm. 171, 
 one half the salvage was awarded to the sole owner who was also the master. In 
 The Saint Nicholas, Lush. Adm. 29, £ 2,800 were awarded in all, and of this 
 amount, £ 1,500 were given to the owners. 
 
 ^ The Mulgrave, 2 Hagg. Adm. 77. See d\so post, p. 307. 
 
 '• The Charlotte, 3 W. Rob. 68. But in The Norden, 1 Spinks, 185, it was 
 held that owners of fishing smacks were entitled to salvage, although the service 
 was of short duration and not dangerous. 
 
 ' The Two Friends, 2 W. Rob. 349. 
 
 * Williamson v. The Brig Alphonso, 1 Curtis, C. C. 376, 380. And see cases 
 cited ante, p. 286, n. 6. But in The Lovett Peacock, U. S. D. C Mass., 1867, 
 one third was allowed the owners, although the men put on board the vessel saved 
 were fewer in number than the crew taken from her. See The Czarina, 2 
 Sprague, 48.
 
 CH. VIII.] COMPENSATION IN CASES OF SALVAGE. 301 
 
 awarded to the owners ; but if not actually engaged, it has been 
 held that no allowance is to be made for what she might have 
 earned.^ 
 
 Even if actually engaged at the time, if the vessel to which the 
 service is rendered is not then in imminent danger, it is said that 
 no compensation is to be made for any loss of profits, unless the 
 master of the vessel saved is informed at the time of the nature of 
 the employment in which the salvor is engaged.^ 
 
 The master^ has perhaps commonly in our courts about twice 
 as much as the mate ; but here, and still more as to the seamen, it 
 can hardly be said that there is a rule.* The share of an appren- 
 tice is given to him, and not to his master,^ and an agreement to 
 the contrary would be void ; ^ and slaves, it would seem, are en- 
 titled to salvage for their own use.'' If some of the salvors decline 
 or refuse to claim salvage, this will not enure to the benefit of the 
 co-salvors, but to the benefit of the owners of the property.^ 
 
 1 The Louisa, 3 W. Rob. 99. 
 
 2 The Nicolai Heinrich, 22 Eng. L. & Eq. 615 ; The Hedwig, 1 Spinks, Adm. 
 19, no7n. The Headwig, 24 Eng. L. & Eq. 582. 
 
 ^ In The Paris, 1 Spinks, 291, where £800 were decreed, the master was al- 
 lowed £120. 
 
 * In The Lovett Peacock, U. S. D. C. Mass., 1867, Lowell, J., a vessel was met 
 with at sea disabled. The crew were taken off, and the captain of the saving 
 vessel conceived the plan of taking the disabled vessel into port. His mate de- 
 clined to go on board, and the second mate and four men went. The master was 
 allowed one sixth, the second mate one ninth, the four men about one twentieth 
 each. The balance, after the allowance of one third to the owners, was divided 
 among the six men who remained, in proportion to their wages, the mate receiv- 
 ing, owing to the peculiar circumstances, only an able seaman's share. 
 
 ^ Mason v. Ship Blaireau, 2 Cranch, 240 ; The Two Friends, 2 W. Rob. 349 ; 
 The Columbine, 2 VV. Rob. 186. In this last case additional compensation was 
 made to the owners of the vessel, on the ground that although the owner was not 
 entitled to receive the whole benefit of the apprentice's services, yet that to a cer- 
 tain extent the owner was entitled to derive benefit from it. But the language 
 used by the learned judge in the subsequent case of The Two Friends, is not con- 
 sistent with the master's claim in any case. 
 
 ^ The Columbine, 2 W. Rob. 186. 
 
 ' In Small v. Goods, etc., 2 Pet. Adm. 284, 287, salvage was decreed to slaves 
 for their own use. But in Mason v. Ship Blaireau, 2 Cranch, 240, it was ad- 
 judged to the master, he having agreed to manumit the slave and to pay him one 
 fifth of the sum allowed. 
 
 8 Evans v. Ship Charles, 1 Newb. Adm. 329.
 
 802 LAW AND JUEISDICTION OF ADMIRALTY. [BOOK IL 
 
 SECTION VII. 
 ON WHAT PROPERTY SALVAGE IS ALLOWED. 
 
 Salvage is generally decreed on all the property saved, whether 
 ship/ cargo,^ or freight.^ In a case where a government transport 
 had been captured by the enemy and then abandoned, and after- 
 wards found derelict and brought into port, no objection was made 
 
 * A bottomry bond and wages earned subsequent to the service would be de- 
 ducted from the value of the vessel at the time of suit brought, but wages earned 
 prior to the service should not be deducted. The Selina, 2 Notes of Cases, 18. 
 
 ' Where a salvage service is concluded at one port and the cargo is taken to 
 another and sold, the value at the former port is to be taken. The George Dean, 
 Swabey, Adm. 290. The cargo in this case was sent on from Lisbon to Lon- 
 don, it being represented that it could not be sold at Lisbon. The court said : " I 
 imagine the strict method to arrive at the value of the cargo at Lisbon would be, 
 not on any assertion of its being unsalable there, but by putting it at £ 7 and £ 8 
 per cent less than the proceeds of its sale in London, deducting freight and other 
 charges for the voyage from Lisbon to London, but allowing a. pro rata freight as 
 far as Lisbon." AVhen the cargo is saved, suit should be brought against it as 
 well as the ship, as the proper mode of apportioning the salvage is to take the 
 value of both, and if the value of the cargo does not appear, the court will not be 
 able without much difficulty to apportion the salvage. The Mary Pleasants, Swa- 
 bey, Adm. 224. In The Peace, Swabey, Adm. 115, the net value of the cargo was 
 taken, and the following charges were deducted from the gross value : discount 
 2\ per cent, custom-house entry, freight, weighing, brokerage, commission, but 
 not a gratuity for primage. In The Charlotte Wylie, 2 W. Rob. 495, it was 
 claimed that freight, primage, and insurance should be deducted from the value 
 of the ship and cargo. No dispute was raised between the owners of the ship 
 and the owners of the cargo, and the court said that if the freight was deducted 
 from the value of the cargo, it would be taken aflerwards as a separate item, on 
 which the court must decree salvage, and therefore refused to make the deduc- 
 tion ; and the deduction of primage and insurance was not allowed. 
 
 ' In The Peace, Swabey, Adm. 85, where an action was entered against the 
 vessel and her freight, but as the cargo had been delivered, only the vessel was 
 arrested, and bail was given for both ship and freight, the court held that the 
 owners of the vessel were bound to bring in an account of freight on oath, and 
 to set forth when, and the names of the parties by whom, such freight had been 
 paid. In The Norma, Lush. Adm. 124, a vessel bound from Honduras to Eng- 
 land was disabled on the voyage and towed into Bermuda, where expenses nearly 
 equal to the whole freight were incurred to refit. The voyage home was after- 
 wards completed and the cargo delivered. It was contended that as no freight 
 was due, as between ship-owner and the owner of the cargo, at Bermuda, no 
 freight could be estimated in computing the value of the property saved ; but the
 
 CH. VIII.] ON WHAT PROPERTY SALVAGE IS ALLOWED. 303 
 
 to the jurisdiction, and salvage was decreed.^ So in a case where 
 assistance was rendered to a government transport, no objection 
 being made.^ 
 
 But there is an exception to the general rule in favor of the 
 mails,^ and perhaps in the case of a ship of war belonging to our 
 own government.^ And we doubt whether property belonging to 
 the government can in any case be seized by process in rem.^ 
 And it has been determined in this country that vessels of war 
 belonging to a foreign neutral power cannot be arrested in our 
 ports into which they have lawfully come.'' 
 
 The same is true of a private armed vessel sailing under a 
 commission from a foreign government.'^ But the general rule is 
 that our courts have jurisdiction over all property, to whomsoever 
 it belongs, which comes within their territorial jurisdiction ; and 
 though an exception is made in favor of an armed vessel, and her 
 munitions of war, yet the private property of a foreign sovereign, 
 or the prize property which a vessel of war brings into our ports, 
 comes within the general rule, and not within the exception.^ 
 
 We should therefore say that where the court could take juris- 
 diction, it would enforce a salvage claim, but not otherwise.^ 
 Salvage is not, however, allowed on the clothing left by the mas- 
 ter and crew on board of the vessel which they abandon, but this 
 should be returned free of charge.^*^ Nor on money found on the 
 person of a drowned man.^^ Nor, it is said, for saving from a 
 
 court held that this principle did not apply, and allowed salvage upon one half of 
 the total gross freight. See The Dorothy Foster, 6 Rob. Adm, 88, cited ante, 
 p. 258, n. 2. 
 
 ^ The Lord Nelson, Edw. Adm. 79. 
 
 2 The Marquis of Huntley, 3 Hagg. Adm. 246. 
 
 ^ Sch. Merchant, cited in Marvin on Salvage, 132. 
 
 * This was so held in England in 1816, in the case of The Comus, cited 2 Dods, 
 464. 
 
 ^ See Briggs v. Light-Boats, 11 Allen, 157. 
 
 « The Sch. Exchange v. M'Faddon, 7 Cranch, 116. 
 
 ^ LTnvincible, 1 Wheat. 238. 
 
 « The Santissima Trinidad, 7 Wheat. 283. 
 
 ® In The Frins Frederik, 2 Dods. 451, this question was discussed at length, but 
 no decision was given, as the foreign government afterwards consented that the 
 judge of the admiralty court might detei'mine the amount of salvage due. . 
 
 1^ The Eising Sun, Ware, 378. 
 
 " The Amethyst, Daveis, 20, 29. The expense of his interment was, however, 
 allowed out of this money.
 
 304 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 wreck bills of exchange, or other evidences of debt or documents 
 of title. ^ It has also been held that admiralty will not allow, in a 
 suit for salvage, charges made by the salvors for repairs ; but this, 
 we should think, could not always be true, when these repairs 
 were necessary and properly made.^ 
 
 The rights of co-shippers are sometimes quite distinct, the 
 goods of each shipper paying the salvage decreed for saving his 
 goods only, if there be any difference in the facts, circumstances, 
 or merits attending the saving of different parcels of the cargo.^ 
 But it would seem that no difference is to be made between the 
 ship and cargo. The value of the one is to be added to the value 
 of the other, and a proportion of this amount is to be given. ^ 
 
 In a well-considered case the rule is stated as follows : '' When 
 a ship and cargo accidentally stranded are saved by lightening the 
 ship, by carrying out anchors, or by other common or continuous 
 labor or service, carried on with a view to the saving of both ship 
 and cargo, the salvage expenses are properly to be apportioned 
 upon the ship, freight, and cargo, in proportion to their respective 
 
 values, as in a case of general average But where, as in 
 
 the present case, the ship is lost, and the voyage broken up, no 
 such rule obtains, but each article of the cargo or invoice is to be 
 charged with its own particular expenses of saving. The interests 
 of the parties are sundered by the destruction of the ship, and the 
 maxim sauve qui pent, save who can, applies." ^ 
 
 SECTION VIII. 
 
 OF THE MANNER IN WHICH A CLAIM FOR SALVAGE MAY BE BARRED. 
 
 If assistance is rendered to a vessel under circumstances which 
 would generally constitute it a salvage service, it may yet not be 
 
 ' The Emblem, Daveis, 61. 
 
 - The Kainger, 2 Ilagg. Adm. 42. This decision seems to have proceeded on 
 the ground that the admiralty had no jurisdiction over a shipwright's bill. 
 
 ' Sec The Samuel, 4 Eng. L. & Eq.-581 ; Stephens v. Bales of Cotton, Bee, 
 170. 
 
 * The Vesta, 2 Hagg. Adm. 189 ; Montgomery v. The T. P. Leathers, 1 Newb. 
 Adm. 421. 
 
 ^ The Mulhouse, U. S. D. C. Florida, Marvin, J., 22 Law Rep. 276.
 
 CH. VIII.] MANNER IN WHICH A CLAIM MAY BE BARRED. 305 
 
 such ; as where the service is rendered under a custom to give 
 assistance gratuitously in similar instances, or where the aid is 
 given under a special contract. And even after the right of action 
 has accrued, it may be lost by misconduct or by a lapse of time. 
 "We shall consider these in their order. 
 
 If two vessels sail as consorts, and under an agreement to assist 
 each other, neither can claim salvage for assistance rendered to 
 the other. ^ It has been questioned, whether if two ships be owned 
 by one owner, or by the same parties, and one of them relieves the 
 other in distress, the relieving ship can claim salvage.^ 
 
 It has also been questioned whether a custom to render assist- 
 ance might not be such and so proved as to bar a claim for salvage. 
 We should say that even where vessels sailing together are not 
 consorts, nor owned by the same party, it is possible that there 
 may be a usage of mutual help, which would defeat a claim of sal- 
 vage,^ and under such circumstances, such a claim would be 
 materially diminished, even if no usage were proved.* Thus it is 
 said that if a steamer be stranded on a sand-bank in the Missis- 
 sippi, and another steamer draws her off, usage prohibits any claim 
 for salvage.^ 
 
 But a custom of one port that vessels shall assist each other 
 gratuitously, is not binding on vessels of other ports rendering 
 assistance to vessels of the port where the custom exists.** And 
 we should doubt whether a custom that steamers sliould aid sail- 
 
 1 The Zephyr, 2 Hagg. Adm. 43. 
 
 * The Margaret, 2 Hagg. Adm. 48, note. 
 
 ' The Harriot, 1 W. Rob. 439. This was a case of salvage in the South Sea, 
 rendered by one whaling vessel to another. The service was not denied, but the 
 respondents contended that a custom existed in the South Sea Fishery for vessels 
 to render assistance to each other gratuitously. Such a custom being proved to 
 exist. Dr. Lushington held that it was legal. But such a usage does not apply to 
 the case of a whaling vessel being frozen up in Davis's Straits, and another whal- 
 ing vessel sailing from England for the purpose of rescuing her. But in such a 
 case, government bounty having been granted for the i-escue of the vessel, the 
 claim of the salvors for demurrage and the payment of stores was not allowed by 
 the court. The Swan, 1 W. Rob. 68. 
 
 * The Ganges, 1 Notes of Cases, 87 ; The Trelawney, 4 Rob. Adm. 223, 227 ; 
 The Waterloo, 2 Dods. 433, 443. But see Williamson v. The Brig Alphonso, 1 
 Curtis, C. C. 376. 
 
 ^ Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, 429. 
 « The Red Rover, 3 W. Rob. 150. 
 VOL. II. 20
 
 306 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 ing vessels, and vice versa, would be good, there being no mutu- 
 ality between the two classes of vessels.^ 
 
 If at the time of the service the salvors make a bargain with the 
 owners of the property in peril, or their servants, as to the amount 
 of salvage, this is enforced by the court only so far as it seems 
 equitable and conformable to the merits of the case. And it is 
 wholly disregarded if it be deemed unconscionable and oppressive 
 to the owners of the property saved, or entered into under circum- 
 stances which amount to compulsion.^ 
 
 1 See The Africa, 1 Spinks, 299. In The Coringa, U. S. D. C. Mass., 
 Lowell, J., a vessel lost her rudder-head off Cape Cod, and came to anchor in an 
 exposed place. She was finally towed to Boston by the Charles Pearson, a pow- 
 erful steamer owned in whole or in part by insurance companies of Boston, and 
 which was known as the underwriters' boat. It appeared in evidence that the offi- 
 cers and crew of the Pearson were hired by the month; and their contract was 
 understood to require them to perform duty in saving vessels without further or 
 other compensation. It also appeared that the steamer usually made a special 
 contract in such a case for payment by the day, or hour, or the job ; and that 
 ■when this was not done, her services were usually settled for upon similar princi- 
 ples. No special contract was made by the master of the Coringa, but he testified 
 that he knew he was dealing with the underwriters' boat, and he inferred that sal- 
 van^e would not be demanded. The service performed in this case was rendered 
 under such circumstances that it was one of salvage, unless the facts above set 
 forth took away this character from it. Judge Loivell held that they did not, and 
 that the libellants were entitled to recover salvage. The learned judge said : 
 " So far as these respondents are concerned, their officers and men must be con- 
 sidered to be volunteers ; they were under no contract or duty toward the re- 
 spondents, and their rights among themselves must be settled independently. I 
 do not consider this fact, nor the fact that the managers of the Pearson usually 
 made a bargain for her use, nor both together, constitute such a holding out to the 
 world as should require me to insist that they undertake salvage services for 
 towage wages." 
 
 - Williams v. Barge Jenny Lind, 1 Newb. Adm. 443, where an agreement 
 that the salvor should have half of the property saved was set aside. See also 
 The Sch. Emulous, 1 Sumner, 207 ; Bearse v. Pigs of Copper, 1 Story, 314 ; 
 Post V. Jones, 19 How. 150 ; Cowell v. The Brothers, Bee, 136 ; Schutz v. 
 Ship Nancy, id. 139; The Theodore, Swabey, Adm. 351; The Enchantress, 
 Lush. Adm. 93 ; The Crus. V., Lush. Adm. 583. What we consider to be the 
 true rule, is stated in the case of Eads v. The Steamboat H. D. Bacon, 1 Newb. 
 Adm. 274, 280, " that a contract should be presumed prima facie to be fair ; but 
 if proven to be unconscionable, the court of admiralty, like the court of equity, 
 would refuse to enforce it." In The Helen & George, Swabey, Adm. 368, Dr. 
 Lushinr/lon said : " This case turns upon the effect of the agreement, which was 
 certainly made by the master. It was truly contended by Dr. Jenner that such
 
 CH. VIII.] MANNER IN WHICH A CLAIM MAY BE BAEEED. 307 
 
 The salvors may also make an agreement with the master of the 
 vessel for a compensation which falls far short of that due for a 
 salvage service,^ " provided there be a clear understanding of the 
 nature of the agreement ; that it is made with fairness and impar- 
 tiality to all concerned ; and that the parties to it are competent 
 to form a judgment as to the obligations to which they are binding 
 themselves." ^ But, in the language of Dr. Lushington, in order to 
 bar a salvage claim, there must be a distinct agreement between 
 the parties, for a given sum and in explicit terms.'^ Mere loose 
 conversation between the parties concerning compensation is, 
 therefore, disregarded.^ But it is no objection to an agreement 
 that it was verbal, and the court will not set it aside unless it is 
 wholly inequitable, although it is a hard bargain.^ And if a pro- 
 posal is made by the salvors and refused by the vessel, this is no 
 
 agreements will generally be enforced by the court. The principle upon which 
 the court acts is, that if satisfied that an agreement has been made, it will carry 
 it into effect unless totally contrary to justice and the equity of the case ; but the 
 owner of the ship, against whom the agreement is attempted to be enforced, may 
 show that it was improperly obtained. The owner may contend that, under the 
 circumstances, the sum of money was grossly exorbitant ; and a fortiori, if he can 
 show that the agreement was obtained by fraud or compulsion, no court would 
 hold it to be binding. But when the execution of such an instrument is once 
 proved, it is prima fade binding, and the burden of proof falls on those who dis- 
 pute the validity of the instrument." 
 
 1 The Mulgrave, 2 Hagg. Adm. 77 ; Bondies v. Sherwood, 22 How. 214. The 
 Whitaker, 1 Sprague, 282 ; Dominy v. Anchors, &c. of the Brig D'Alberti, 1 
 Bened. Adm. 77. In this case it was held that even if there were no formal au- 
 thorization of the person who made the contract, by the other libellants, yet as he 
 was their head and spokesman, and they must have been cognizant that some 
 agreement was made by him, they must be deemed to have acquiesced in it. 
 
 2 The True Blue, 2 W. Rob. 176 ; The Henry, 2 Eng. L. & Eq. 564 ; The 
 Resultatet, 22 Eng. L. & Eq. 620 ; The Phantom, Law Rep. 1 Adm. 58. In 
 the case of The British Empire, 6 Jurist, 608, Dr. Lmldngton said : " Now the 
 general principle with respect to such agreements I apprehend to be this, that it 
 lies upon the party setting it up to prove two things, first that such agreement 
 was made and secondly that it was just. Where there has been a definite, distinct 
 agreement, with ample time for the parties to consider what they are doing, the 
 court would be reluctant to interfere with it, but only under these circumstances." 
 
 3 The Wm. Lushington, 7 Notes of Cases, 361. See The Pensacola, Brow. & 
 L. Adm. 306. 
 
 * The Salacia, 2 Hagg. Adm. 262, 265. 
 ^ The Fire-Fly, Swabey, Adm. 240.
 
 308 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 evidence, in a suit by the salvors, of the value of their service.^ 
 So if an agreement is afterwards rescinded by mutual consent.^ 
 
 If a vessel in need of salvage assistance makes a signal for a 
 steamer, and assistance is rendered in pursuance of that signal, 
 the signal is to be construed as a signal for assistance, although 
 not necessarily one of distress, and the service as one of salvage.^ 
 
 It has been held that if a vessel is hired to do a stated service, 
 as to tow a dismasted vessel which is anchored in a dangerous 
 situation to a place of safety, but no price is named, because the 
 time it may take is not altogether certain, this is a salvage service, 
 and the agreement is of no avail."^ We cannot, however, assent to 
 
 ' The Jan Hendrik, 1 Splnks, 181. 
 
 « The Africa, 1 Spinks, 299. 
 
 ' The Brig Susan, 1 Sprague, 499; The James T. Abbott, 2 id. 101 ; The M. 
 
 B. Stetson, U. S. D. C. Mass., Lotvell, J., Jan. 186 7 ; The John Bunyan, 8 Law 
 Times, N. s. 704 ; The Little Joe, Lush. Adm. 88. In The Bomarsund, Lush. 
 Adra. 77, Dr. Lushington said: " The signal hoisted was for a pilot only, but this 
 does not prevent the services rendered from being in the nature of salvage. Tiie 
 true question always is, what was the condition of the ship ? Was she in dis- 
 tress ? And the character of the signal hoisted is only one piece of evidence bear- 
 ing upon this question. The court will form its conclusions upon all the evidence 
 and all the circumstances." See The Hedwig, 1 Spinks, 19, 24 Eng. L. & Eq. 582, 
 
 * Hennessey v. Ship Versailles, 1 Curtis, C. C. 353 ; The Independence, 2 Curtis, 
 
 C. C. 350. We consider ourselves justified in our doubt of the doctrine of these 
 eases, because when the latter one was taken up to the Supreme Court of the 
 United States, that court were equally divided in opinion, as appears by the re- 
 port of the case on another point. Hemmenway v. Fisher, 20 How. 255. In 
 The William Lushington, 7 Notes of Cases, 361, Dr. Lusliiuglon held where the 
 owners of a vessel in distress agreed with the owner of a cutter that should go to 
 the relief of the vessel, but no sum was fixed as compensation, that the master and 
 crew of the cutter, who did not know of the agreement, were not bound by it, 
 but might sue as salvors. See also The Island City, 1 Clitford, C. C. 210. In 
 such a case, even if it were held that the persons hired could maintain an action 
 for salvage, it would seem just that the party with whom the contract was made 
 should be a party to the suit, and the court would decree as salvage the amount 
 agreed upon, so that the owner of the property saved would not be obliged to pay 
 for the service more than once. See The Whitaker, 1 Sprague, 282. In The 
 John Shaw, 1 Clifford, C. C. 230, the master of a vessel which was aground on a 
 shoal off Nantucket, made an agreement with persons who came from the shore 
 that they should go to work to get the vessel off, and if successful, and the parties 
 could not agree on the amount to be paid, it should be left out to referees. If 
 unsuccessful the salvors were to have the privilege of stripping the vessel. It was 
 held that this did not bar a suit for salvage, and that the refusal of the salvors to
 
 CH. VIII.] MANNER IN WHICH A CLAIM MAY BE BARRED. 309 
 
 this doctrine ; because we are unable to see why the parties may 
 not make a valid contract, leaving the price to be determined on 
 the doctrine of a quantum ineruit. It has, however, been said that 
 an agreement of any kind does not alter the nature of the service 
 as a salvage service, but only furnishes the rule by which the 
 court is to be governed in awarding the compensation ; ^ and that 
 it is in this way that admiralty takes cognizance of an agreement 
 to perform the service.^ 
 
 A binding agreement to take the ship to a place of safety in- 
 cludes the cargo on board, and any agreement that separate sal- 
 vage should be allowed for the cargo would not be binding,^ 
 except, we presume, where the cargo is taken out, and additional 
 expense in this way incurred. 
 
 And where several contracts for salvage services have been 
 made at different times, and a subsequent salvage in respect to the 
 same property is performed under no definite contract, the rate 
 fixed in the prior contracts is not imperative.* 
 
 If an agreement is made between the owners of a vessel em- 
 ployed in salvage services and the crew, that the latter should not 
 in any case receive salvage compensation, it would doubtless be 
 upheld if it were entered into understandingly by the seamen, but 
 
 refer the matter only went in diminution of the amount of compensation. Clif- 
 ford, J., said : " Nothing short of a contract to pay a given sum for the service 
 to be rendered, or a binding engagement to pay at all events, whether successful 
 or unsuccessful in the enterprise, will operate as a bar to a meritorious salvage 
 claim." In The Wm. L. Garrison, U. S. D. C. Mass., 1867, Lotvell, J., a schooner 
 which had lost her foremast and part of her main-topmast came to anchor under 
 the lee of Noman's land, an island off the coast of Massachusetts. The master set 
 a signal of distress, which was seen by a person at Chilmark, who informed the 
 agent of a steamer at Edgartown about eight o'clock in the evening. The 
 steamer fired up and went in search of the vessel and found her about one o'clock, 
 and on coming up, " hailed to know if the schooner wanted assistance or to be 
 towed, and the answer was that she did." After the anchor was hove up, and a 
 line from the steamer made fast to the schooner, and before the towing had 
 begun, the captain of the schooner asked what the charge would be. The cap- 
 tain of the steamer answered that he could not tell, but it would not be unreason- 
 able. Held, that this was not a contract. 
 
 ^ The Sch. Emulous, 1 Sumner, 207. 
 
 ^ The A. D. Patchin, 1 Blatchf C. C. 414. See also The Catherine, 6 Notes 
 of Cases, Supp. xliii ; Bearse v. Pigs of Copper, 1 Story, 314, 323. 
 
 ' The Westminster, 1 W. Rob. 229. 
 
 * Bearse v. Pigs of Copper, 1 Story, 314.
 
 810 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 the burden of proof ■would be on the owners to show that such an 
 agreement was made.^ 
 
 It is perfectly well settled, and for obvious and strong reasons, 
 that any gross misconduct ^ on the part of salvors, and especially 
 any embezzlement of the property saved,^ forfeits the whole claim 
 of the party who is personally guilty, or participant of the wrong- 
 doing; but not of innocent co-salvors.^ 
 
 And if a master who is also a part-owner, embezzles property, 
 his shares as owner and as master are forfeited.^ And it has been 
 contended that the captain is so far the agent of the owners that 
 they are not entitled to salvage if he embezzles property, but this 
 position cannot be maintained.^ The question how far the owner 
 
 ^ The Pride of Canada, Brow. & L. Adm. 208. See aiite, p. 306, n. 1. 
 
 « The Joseph Harvey, 1 Rob. Adm. 306 ; The Bello Corrunes, 6 Wheat. 152; 
 The Clarisse, Swabey, Adm. 129, 133 ; The Charles Adolphe, Swabey, Adm. 153 ; 
 The Perla, Swabey, Adm. 230 ; The Lady Worsley, 2 Spinks, 253 ; The Martha, 
 Swabey, Adm. 489. 
 
 2 Schooner Dove, 1 Gallis. 585; The Bello Corrunes, 6 Wheat. 152. 
 
 * Mason v. Ship Blaireau, 2 Cranch, 240. In The Island City, 1 Black, 121, 
 Grier, J. said : " The embezzlement proved was not the secret act of one or two 
 of the crew. A general system of plunder seems to have been carried on while 
 the bark lay at the wharf in Hyannis, and before the crew returned to claim 
 their property. In this the officers and crew of the Westernport seem all to have 
 been actively or passively implicated. Locks were broken, chests and trunks 
 forced open, and clothing, money and other articles of value were carried away, 
 and never returned. Those who did not actively participate in this systematic 
 and general pillage have connived and consented thereto, and have justly been 
 decreed to have forfeited all right to compensation." The owners of the vessel 
 performing the service were allowed salvage in this case, but the officers and 
 crew were held to have forfeited their claims to compensation. See same case, 1 
 Clifford, C. C. 221. In The Mulhouse, U. S. D. C. Florida, Marvin, J., 22 Law 
 Rep. 276, part of the crew of a wrecking vessel remained at the wreck, and the 
 others returned to port in their vessel with some kegs of specie. One ke" was 
 stolen by some of those who returned, and it was held that only those of the crew 
 who remained by the wreck were entitled to salvage. 
 
 ' The Schooner Boston, 1 Sumner, 328 ; The Mulhouse, U. S. D. C. Florida, 
 Marvin, J., 22 Law Rep. 280. 
 
 « The Rising Sun, Ware, 378; The Missouri's Cargo, 1 Sprague, 260. The 
 question was discussed at length in this case, whether a conspiracy, fraud and 
 actual embezzlement on the part of the master would defeat the claim of the 
 owners of the vessel, the property having been saved. The court were of the 
 opinion that only the guilty parties should suffer. The Duke of Manchester, 2 
 W. Rob. 4 70, to the contrary, may be explained on two grounds, either that the
 
 CH. VIII.] MANNER IN WHICH A CLAIM MAY BE BARRED. 311 
 
 of the saving vessel is liable for losses occasioned to tlie property 
 saved, by the unseaworthiness of his own vessel, or by the miscon- 
 duct of his officers and crew, is one of much interest and import- 
 ance. There seems to be a distinction between the nature and 
 extent of the liability of the owner of a trading vessel which acci- 
 dentally falls in with another vessel, and renders salvage services, 
 and the nature and extent of the liability of the owner of a vessel 
 which is employed in rendering salvage services as a business. 
 
 In the case of a trading vessel we should not hold the owner 
 responsible for losses occasioned to the property saved, by the mis- 
 conduct of the officers and crew of his vessel. But in the case of 
 a wrecking vessel a different rule applies. The master and crew 
 are employed by the owner for the very object of accomplishing sal- 
 vage services, and consequently they are his agents, and he is liable 
 for all their torts while engaged in such business. This rule does 
 not forfeit the salvage awarded to such owner, but only renders 
 him liable for any loss occasioned by the misconduct of his officers 
 and crew. Thus, in a case where this question was much consid- 
 ered, the crew had stolen a keg of specie, which had been recov- 
 ered, and salvage was paid to the finders of it, and the shares to 
 which the original salvors would have been entitled were for- 
 feited, it was contended that the owner of the vessel ought to make 
 good the amount of salvage which was paid the finders of the 
 specie, because such salvage was occasioned by the misconduct of 
 his servants, but the court held that as the shares forfeited 
 amounted to more than the salvage paid the finders of the specie, 
 the owners of the specie had sustained no loss, and the owner of 
 the vessel was not liable.^ 
 
 The owners of a wrecking vessel are also obliged to keep their 
 vessel in a sound and seaworthy condition, and are liable for any 
 loss occasioned by their neglect of duty in this respect.^ 
 
 Salvors have so much in their power, that it is quite important 
 to hold them strictly to their duty of protecting and preserving 
 the property for the benefit of their owners, with all reasonable 
 
 innocence of the owners was not proved, or that no beneficial service was ren- 
 dered. 
 
 1 The Mulhouse, U. S. D. C. Florida, Marvin, J., 22 Law Rep. 287. 
 
 ' The ISIulhouse, supra ; The Pacific, U. S. D. C. Florida, cited 22 Law Rep. 
 289.
 
 312 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 diligence and care, and with entire honesty.^ And this responsi- 
 bility of the salvors continues so long as the property is subject to 
 the decree of the court. So that an embezzlement or theft after 
 it is in custody of the officers of the court still works a forfeiture. ^ 
 But salvage is not forfeited by misconduct of the crew before the 
 salvage, or, probably after, if nothing wrong can be imputed to 
 them in connection with the salvage service, or the property.^ 
 
 In a case before the Privy Council, the law is stated as follows : 
 " Mistake or misconduct otber than criminal, which diminishes 
 the value of the property salved, or occasions expense to the own- 
 ers, are properly considered in the amount of compensation to be 
 awarded. Wilful or criminal misconduct may work an entire for- 
 feiture of it ; but that must be proved by those who impute it. 
 The presumption of course is in favor of innocence, and this rule 
 applies so strongly in favor of salvors that the learned judge of the 
 admiralty .... has laid it down that the evidence must be ' con- 
 clusive ' before they are found guilty ; by which he must be under- 
 stood to mean that it must be such as leaves no reasonable doubt 
 in the mind of the judge." ^ 
 
 In an English case, a tender had been made, but after the com- 
 pletion of the salvage service, tbe owners having suffered loss by a 
 long detention of the ship, which they attributed to the salvors, 
 deducted an amount for such loss from the sum tendered, and 
 paid the remainder into court. At the time of the alleged mis- 
 conduct by the salvors, the vessel was in the possession of the Re- 
 ceiver of Droits. It was held that no deduction should be made 
 for any misconduct after the property had passed from the posses- 
 sion of the salvors.^ 
 
 A doubt has been expressed whether salvors who employ a 
 steam-tug to tow the injured vessel, at a time when there is no 
 opportunity of selection, so far make the tug their agent that they 
 must suffer for the negligence of those in command of it, to any 
 
 ' In The John Perkins, U. S. D. C. Mass., 19 Law Rep. 490, 496, the share of 
 a salvor was diminished because he was not sufficiently watchful in preventing 
 third persons from plundering the vessel. 
 
 ' Schooner Boston, 1 Sumner, 328. 
 
 ' The Centurion, Ware, 477, 484. 
 
 * The Atlas, Lush. Adm. 528. 
 
 ' The Hopewell, 2 Spinks, 249.
 
 CH. YIII.] MANNER IN WHICH A CLAIM MAY BE BARRED. 313 
 
 greater extent than the duninution in vahie occasioned by such 
 negligence.^ 
 
 If property which has been embezzled after having been saved, 
 comes again into the possession of the owner of it, salvage on it is 
 due to those of the original salvors who had nothing to do with 
 the embezzlement.^ But any neglect or want of due skill or care 
 on their part, would forfeit or diminish their salvage.^ Whether 
 they might not be answerable further for mischief caused by their 
 interference with the property has not been decided. We should 
 say, however, that they would be liable as other wrong-doers ; that 
 is, on the same ground and to the same extent. 
 
 The duties of parties when a pilot is on board in charge of a 
 vessel we have already considered,'^ and only remark here that 
 a salvor cannot excuse negligence on his part by proof that there 
 was a pilot on board.^ The utmost honesty and good faith on the 
 part of the salvors is required. All attempts at extortion, either 
 by direct acts,^ or by an exaggerated account of the service per- 
 formed, are received by the court with great disfavor, and work a 
 forfeiture or diminution of salvage.'^ 
 
 Forfeited shares in salvage enure generally to the benefit of the 
 owners of the property saved, and not to the co-salvors.^ 
 
 It has been held at common law, that where one of the crew, 
 who had been guilty of embezzlement, sued the owner of his ship 
 
 1 The Atlas, in P. C. Lush. Adm. 529. 
 
 "^ The Missouri's Cargo, 1 Sprague, 260, U. S. D. C. Mass., 18 Law Kep. 38. 
 
 => Tlie Rosalie, 1 Spinks, 188, 25 Eng. L. & Eq. 605; The Lockwoods, 9 
 Jurist, 1017; The Bark Dygden, 1 Notes of Cases, 115; The Neptune, 1 W. 
 Eob. 297 ; The Duke of Manchester, 2 AV. Rob. 470; The Barefoot, 1 Eng. L. & 
 Eq. 661 ; The Glory, 2 Eng. L. & Eq. 551 ; The Dosseitei, 10 Jurist, 865 ; The 
 Cape Packet, 3 W. Rob, 122. In this last case it is said that the extent of the 
 diminution "is not measured by the amount of loss or injury sustained, but is 
 framed upon the principle of proportioning the diminution to the degree of neg- 
 ligence, not to the consequences." See also The Mulhouse, U. S. D. C. Florida, 
 Marvin, J., 22 Law Rep. 282. 
 
 * See ante, p. 111. 
 
 * The Duke of Manchester, 2 W. Rob. 470. 
 
 * Houseman v. Schooner North Carolina, 15 Pet. 40; The Giacomo, 3 Hagg. 
 Adm. 344 ; The Susannah, cited 3 Hagg. Adm. 345, note. 
 
 '' The Elizabeth & Jane, Ware, 35, 37 ; The Towan, 2 W. Rob. 259. 
 
 * The Rising Sun, Ware, 378 ; Schooner Boston, 1 Sumner, 328 ; The Island 
 City, 1 Clifford, C. C. 221, 1 Black, 121.
 
 814 LAW AND JURISDICTION OF ADMIRALTY. [BOOK U. 
 
 for his share of the salvage, this owner could not make the de- 
 fence of embezzlement, because the owner of the property had 
 paid to him the share of the seaman, without deducting what was 
 forfeited by embezzlement.^ The master has no right to give 
 away any of the cargo or stores of his vessel ; and an acceptance 
 of them by the salvors, or their connivance with his waste or 
 misuse of such cargo or stores, would forfeit or diminish their 
 salvage.^ 
 
 A salvage claim may also be lost by a sufficient lapse of time.^ 
 
 In cases of salvage, the salvors were formerly admitted as wit- 
 nesses in their own behalf, from necessity, as they were often the 
 only persons who had any knowledge of the circumstances.^ But 
 this necessity, from which their competency arose, limited that 
 competency, and they were not admissible as witnesses for them- 
 selves, or for each other, to entirely independent facts which could 
 be proved by other testimony.^ Now, however, the interest of a 
 party does not disqualify him from testifying.^ 
 
 From tlie fact that they were thus admitted, and the reason for 
 their admission, we should draw another inference ; namely, that 
 material perjury on their part should operate as an embezzlement 
 of the truth, and of the trust which is in their hands, and should 
 work a forfeiture of their claim. This has been earnestly con- 
 tended for, but the question has not yet received, so far as we 
 know, distinct adjudication. 
 
 A salvor is not barred by receiving a small sum of money and 
 giving a receipt in full. In such a case the tendency of the court 
 is not to allow the receipt to operate as a bar, and if it is of opinion 
 that the salvor, although he comprehended the receipt, formed an 
 erroneous idea of his own services, the receipt will be disregarded.'' 
 
 A question of much interest was presented in a case in England, 
 where the facts were as follows : A vessel in tow of a steam-tug 
 came in collision with another vessel, also in tow of a steam-tug. 
 The tug of the first vessel to avoid being crushed cast off the tow- 
 
 ' Blake v. Patten, 15 Maine, 173. 
 
 ' Ship Octavia, cited in Marvin on Salvage, 113. 
 
 ' The Rapid, 3 Hagg. Adm. 419 ; The Samuel, 4 Eng. L. & Eq. 581. 
 
 * The Elizabeth & Jane, Ware, 35. 
 
 * The Sch. Boston, 1 Sumner, 328, 345 ; The Henry Ewbank, id. 400, 432. 
 
 * See post, Book iii. c. xi. sect. 2. 
 ^ Silver "Bullion, 2 Spinks, 7.
 
 CH. Vm.] MILITARY SALVAGE. 315 
 
 rop^, and shortly afterwards the vessel drifted against another ves- 
 sel that was at anchor, which vessel was then assisted by the tug. 
 Compensation being claimed for tliis service, it was contended that 
 the second collision was caused by the fault of the tug in not 
 returning sooner to tlie vessel it had been towing, and that no sal- 
 vage was therefore due, and Dr. Lushington, being of the opinion 
 that the tug did not return soon enough, dismissed the libel.^ On 
 appeal to the Privy Council, the question of law was considered 
 one of much difficulty, but the court being of the opinion that on 
 the facts the tug was not in fault, did not find it necessary to 
 decide the point.^ 
 
 If salvors tortiously convert property saved by them to their 
 own use, this tort may be waived by the owners, and the salvors 
 are then entitled to a reasonable compensation for their services.^ 
 
 SECTION IX. 
 
 OF MILITARY SALVAGE. 
 
 When a vessel or other property is captured by any force hostile 
 to the United States, and is recaptured before condemnation as 
 prize by any competent authority, a meet and competent sum is 
 awarded as salvage, according to the circumstances of each case. 
 If the property belonged to the United States, it is restored to the 
 United States, and the salvage costs and expenses ordered by the 
 
 1 The Golden Light, Lush. Adm. 355. 
 
 ^ The Golden Light, Lush. Adm. 3 74. The court said : " A most important 
 principle of law is involved in this decision, which as far as our knowledge extends 
 is new : that third persons can avail themselves of the breach of a contract to 
 which they are strangers, on the ground that if it had been duly performed, they 
 would have escaped injury to which they have been subjected." 
 
 ^ Tome V. Dubois, 6 Wallace, 548. In this case several booms on the Susque- 
 hanna river were carried away by a freshet, and a large quantity of logs were 
 swept away. The defendant saved some, and sawed them into planks. The 
 owner of the logs was unable to effect a settlement with the defendant, and sold 
 all his interest in the logs to the plaintiff, who thereupon made a demand upon the 
 defendant, and on refusal brought this action. The defendant contended that 
 the property having been converted previously to the sale, no property passed to 
 the plaintiff; but the court held that the former owner could waive the tort, that 
 the action could be maintained, and that the salvor was entitled to compensa- 
 tion.
 
 318 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 court are to be paid from the treasury of the United States. If 
 the recaptured property belonged to persons residing witliin or 
 under the protection of the United States, the court adjudges the 
 property to be restored to its owners, on the payment of such sum 
 as the court may award as salvage costs and expenses. If the 
 property belonged to any person permanently resident within the 
 territory, and under the protection of any foreign prince, govern- 
 ment, or state in amity with the United States, and by the law or 
 usage of such prince, government, or state, the property of a citi- 
 zen of the United States would be restored under like circum- 
 stances of recapture, it is restored to such owner upon such terms 
 as by the law or usage of such prince, government, or state would 
 be required of a citizen of the United States under like circum- 
 stances of recapture ; and when no such law or usage is known, it 
 is restored upon the payment of such salvage costs and expenses 
 as the court may order. The whole amount awarded as salvage 
 is decreed to the captors, and no part to the United States, and is 
 distributed as in the case of proceeds of property condemned as 
 prize.i 
 
 Salvage is demandable as of right for vessels or cargoes saved 
 from pirates or a public enemy .^ And in case of recapture, it 
 follows as an incident of prize, and will be awarded by the court 
 of restitution, whether prayed for in the libel or not.^ And it is 
 lawful to take a ship at sea which is in a condition liable to cap- 
 ture, and bring or send her in for examination and adjudication 
 by the courts.^ 
 
 The amount of salvage on recapture was fixed by statute for 
 most cases ; ^ and when not so determined was held to be governed 
 by the general principles of law.^ Now, however, by the act of 
 
 > Act of 1864, c. 174, § 29, 13 U. S. Stats, at Large, 314. This section also 
 provides that nothing in the act sball be construed to contravene any treaty of 
 the United States. 
 
 * Talbot V. Seeman, 1 Cranch, 1 ; The Progress, Edw. Adm. 210. 
 » The Sch, Adeline, 9 Cranch, 244. 
 
 * Talbot V. Seeman, 1 Cranch, 1. 
 
 » Act of 1800, c. 14, 2 U. S. Stats, at Large, 16. See The Sch. Adeline, 9 
 Cranch, 244. This act, however, is expressly repealed by Act of 1864, c. 174, 
 § 35, 13 U. S. Stats, at Large, 315. 
 
 ' Talbot V. Seeman, 1 Cranch, 1. This was a case of a recapture by an Amer- 
 ican vessel of a Hamburg vessel from a French vessel. France and the United
 
 CH. VIII.] MILITARY SALVAGE. 317 
 
 1864, a meet and competent sum is to be awarded as salvage, 
 according to tlie circumstances of each case. 
 
 It has been said in England that military salvage, being fixed by- 
 law at a low rate, may be increased by the court, when special 
 services are rendered.^ 
 
 Lord Stowell has held that the master and crew are, strictly 
 speaking, the only salvors ; the owners having generally but a 
 slight claim, grounded only on the danger incurred by their prop- 
 erty .^ But every one concerned in the rescue of a captured ship 
 has a lien on the property for his salvage, and his action in per- 
 sonam as well as in rem.^ In England, it is no part of the duty of 
 the crew, as seamen, to rescue their own ship in case of capture ;* 
 but rescue is a voluntary and meritorious act, to be rewarded as 
 such. If one does only his duty, he cannot on this ground claim 
 military any more than civil salvage ; ^ and this is sometimes said 
 
 States were at war, and Hamburgh was neutral to both. The court lield that the 
 case did not fall within the third section of the act of 1800, construing that sec- 
 tion to apply only to the case of a friend hostile to the capturing power. One 
 sixth was allowed as salvage. 
 
 ^ The Sir Francis Burton, 2 Hagg. Adm. 156. 
 
 2 The San Bernardo, 1 Rob. Adm. 170. 
 
 3 The Two Friends, 1 Rob. Adm. 271. 
 
 * In England, the law is, that the obligation of the crew is at an end on a cap- 
 ture taking place. The Two Friends, 1 Rob. Adm. 271 ; The Beaver, 3 Rob. 
 Adm. 292. They may, therefore, be entitled to salvage on recapture, as well as 
 ■where the service is performed by third persons. But in this country it is certaia 
 that it is the duty of the crew to remain by the vessel after capture until condem- 
 nation. It would, therefore, seem that they did no more than their duty in recap- 
 turing the vessel. In Phillips v. M'Call, 4 Wash. C. C. 141, the vessel had been 
 captured and a prize crew put on board ; but on another vessel approaching, the 
 captors, fearing recapture, left the vessel in the possession of part of her original crew, 
 they giving a ransom bill, promising to pay half the value. It was held that the 
 crew were not entitled to salvage, their contract not being dissolved by the cap- 
 ture. But in Clayton v. Ship Harmony, 1 Pet. Adm. 70, salvage was allowed on 
 a recapture by the crew, their contract being considered to be at an end. In 
 Williams v. Suffolk Ins. Co., 3 Sumner, 270, the question Avas whether a decree 
 of the admiralty court in Connecticut, giving salvage to the crew of a vessel who 
 had recaptured her when she was illegally detained by a foreign power, was bind- 
 ing upon the insurers. Mr. Justice Story held that the decree was conclusive, 
 and added : " If that decree were re-examinable, there is no question that it was 
 rightfully a case for salvage ; for the recapture saved the vessel and outfits from 
 an imminent peril of condemnation." 
 
 ^ See note, supra.
 
 818 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 where the service rendered is not so strictly within his duty, but 
 that he might liave refused to perform it.^ Nor is it necessary 
 that the salvor should incur personal risk ; thus where the enemy 
 sells 2 or gives ^ a captured ship to a stranger, who brings her back 
 to her owner, his right to salvage is unquestionable. 
 
 As to freight, it has been held that this must contribute to sal- 
 vage, when a commencement of the voyage has taken place, then 
 a capture, and a recapture, by which the voyage was afterwards 
 accomplished. In that case the whole freight is included in the 
 valuation on which salvage is given.* But it is not always suflfi- 
 cieut to make the freight contributory that its earning was made 
 possible by the recapture ; as if a ship be cut out of port, and then 
 recaptured, and she afterwards sails on and completes her voyage ; 
 no salvage would be due from the freight.^ 
 
 When there is a recapture by a public ship of war, and the 
 parties do not consent to appraisement, the value of the recap- 
 tured property must be ascertained by a sale of it.^ Recapture to 
 give the right to salvage must be legal, for if founded on a tort no 
 compensation is due.''' 
 
 Whether salvage is to be decreed or not in cases of recapture, is 
 often a question of much difficulty, and one of mingled law and 
 fact. So far as the principal cases may aid in answering this 
 question, we have arranged them as follows : — 
 
 Military salvage has been decreed, and the vessel restored to the 
 original owner, because the condemnation and sale under which 
 it was purchased and brought home were set aside as illegal.^ 
 Nor is the right of salvage taken away by a subsequent capture 
 
 * See Phillips v. M'Call, 4 Wash. C. C. 141, where it was held that a passen- 
 ger, and another person who was the ship's physician, were bound to aid in res- 
 cuing the vessel after capture. 
 
 ' The Henry, EJw. Adin. 192. In The London, 2 Dods. 74, the captors offered 
 to release the vessel to the master on condition of his drawing a bill for £1,000, 
 payable in London. He did this, but took care to send advices to London in time 
 to prevent the payment. Held, that he was entitled to salvage. 
 
 » The Sir Peter, 2 Dods. 73. 
 
 ♦ The Dorothy Foster, 6 Eob. Adm. 88. 
 
 ' TJje Dorothy Foster, 6 Rob. Adm. 88, 91, per Sir William Scott. 
 
 ' Cross V. Brig Dolphin, Bee, 152. 
 
 ' Davit^on v. Seal-skins, 2 Paine, C. C. 324. 
 
 « The Flad Oyen, 1 Bob. Adm. 135.
 
 CH. VIII.] MILITARY SALVAGE. 819 
 
 and condemnation in an enemy's port when that sentence is over- 
 ruled and annulled by tlie sovereign of the state, and the ship 
 released. 1 Salvage was allowed when a ship of war of the United 
 States recaptured from the French a Hamburg ship, France and 
 the United States being then at war, and France and Hamburg 
 neutral as to each other, it being considered that although France 
 and Hamburg were neutral, yet the conduct of the French gov- 
 ernment showed that the rights of nations would have been 
 violated had the vessel been taken in.^ And when an American 
 vessel was captured by a French privateer, and her master gave 
 a ransom bill, payable only on her arrival in Havana, whereupon 
 she was ordered to Havana with a French prize-master on board, 
 and an English ship captured her and put a prize crew on board, 
 who brought her into her American port, it being apparent that 
 this bill was no longer payable, and was saved to the owner by the 
 recapture, salvage was decreed.^ 
 
 So also, when a captured ship had been abandoned by the cap- 
 tors to go in pursuit of another prize, and it was afterwards found 
 by another vessel in a derelict condition, one half was given to the 
 salvors.* When an English privateer, finding enemy's (French) 
 property on board a neutral ship (an American), captured her, 
 and put two men only on board, and the neutral master promised 
 to go into a British port, but he afterwards attempted to go into 
 an enemy's port, and the prize crew besought the aid of another 
 British armed ship, who again captured the neutral, it was held 
 that the first seizure constituted a legal capture, but that the ser- 
 vices of the cruiser were sufficient to entitle her to salvage.^ 
 Salvage is allowed in case of a recapture from pirates.^ 
 
 Restoration was decreed without salvage in the following cases. 
 In a case of a capture by a foreign cruiser, which was fitted out in 
 a port of the United States in violation of our neutrality, the 
 
 * The Charlotte Caroline, 1 Dods. 192. 
 
 8 Talbot V. Seeman, 1 Cranch, 1 ; The War Onskan, 2 Rob. Adm. 299. 
 ' Moodie v. Brig Harriet, Bee, 128. 
 
 * The Lord Nelson, Edw. Adm. 79. The question seems to have been consid- 
 ered more as a case of derelict, than as salvage on recapture. 
 
 * The Resolution, 6 Rob. Adm. 13. 
 
 * The Marianna, 3 Hagg. Adm. 206. See also Davison v. Seal-skins, 2 Paine, 
 C. C. 324 ; The Calypso, 2 Hagg. Adm. 209.
 
 820 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 capture being considered as illegal.^ Nor was salvage allowed 
 for merely stopping a ship from entering an enemy's port, for 
 there can be no salvage for recapture, unless the property has 
 been in the actual or constructive possession of the enemy ; ^ and 
 the recaptured ship must come into the actual possession of the 
 recaptors ; but in one such case salvage was decreed under the 
 general maritime law, although the case did not come within the 
 English prize act.^ 
 
 If the vessel does not actually assist in the recapture, she is not 
 entitled to a salvage, as where she is prevented from assisting by 
 becoming becalmed.* So also where an American ship was cap- 
 tured by the enemy and condemned, and sold to a subject of the 
 enemy, and afterwards recaptured by an American privateer; 
 because, by the general maritime law, a sentence of condemnation 
 extinguishes the title of the original proprietor.^ So also where 
 an American ship was seized by French custom-house officers, and 
 released on bail, to respond adjudication in the Frencii prize court, 
 and was captured by English ships as she was dropping down the 
 river, on the ground that she was already out of the enemy's 
 hands, aiid no service was rendered to her.^ Salvage was not 
 allowed for rescuing a neutral American ship from a belligerent, 
 who arrested her for an alleged breach of treaty or of the law of 
 nations." A neutral vessel can claim no salvage for a recapture 
 from a belligerent, because it has no right whatever to make re- 
 capture.^ But salvage is allowed where the property of friends or 
 
 ' The Brig Alerta, 9 Cranch, 359. 
 
 * The Ann Green, 1 Gallis. 274, 293. 
 
 ' The Edward & Mary, 3 Rob. Adm. 305. The vessel in this case was 
 brought to by a French lugger in a storm, but was not boarded on account of the 
 weather. A British frigate came in sight and captured the lugger, and the vessel 
 escaped and arrived safely in port. The act of Parliament declared that " if at 
 any time afterwards surprised and retaken by any of his majesty's ships of 
 war," etc. This was held to make an actual possession by the recaptors neces- 
 sary. 
 
 * The Dorothy Foster, 6 Rob. Adm. 88. 
 ^ The Star, 3 Wheat. 78. 
 
 « The Robert Hale, Edw. Adm. 265. 
 
 ' Waite V. Brig Antelope, Bee, 233 ; Talbot v. Seeman, 1 Cranch, 1 ; The 
 War Onskan, 2 Rob. Adm. 299. 
 ' Talbot V. Seeman, 1 Cranch, 1, \\qt Marshall, C. J.
 
 CH. VIII.] MILITARY SALVAGE. 321 
 
 allies is retaken from a common enemy. "We have in this country 
 statutory provision for this case.^ 
 
 If a belligerent is compelled to abandon a prize at sea, and a 
 neutral takes possession, the neutral is entitled to salvage, and the 
 captors, and not the original owners, are entitled to the residue.^ 
 But if the belligerent voluntarily permits the neutral to take the 
 prize, he must restore it to the owners, after deducting salvage.^ 
 And although the salvors made prize of the ship, and brought her 
 in for condemnation, and it turned out that she was a friend, and 
 not a subject for condemnation, this capture gave no ground for 
 denying the services actually rendered.* 
 
 In a case where a city which had been blockaded was evacuated, 
 and the blockading fleet took possession of the harbor, persons not 
 of the navy, who, by their knowledge of the signals used in guiding 
 blockade-runners, enticed such a vessel into the harbor and pro- 
 cured her capture by the fleet, were held entitled to compensation 
 as salvage.^ ' 
 
 ' See ante, p. 316. 
 
 ^ M'Donough v. Dannery, 3 Dall. 88. The vessel in this case had been cap- 
 tured and afterwards abandoned, and then brought into port bysalvr-s. The sal- 
 vors did not appeal from the decree of the district court, which awarded them 
 one third of the gross proceeds of the property, and the case was carried to the 
 Supreme Court to determine whether the captors or the original owners were en- 
 titled to the residue. The court held that the captors were, but expressed some 
 doubts whether the salvors were not entitled to the whole of the property, or at 
 least to a greater proportion than had been awarded them. 
 
 » The Adventure, 8 Cranch, 221; The Sir Peter, 2 Dods. 73; The London, 
 id. 74. 
 
 * The Franklin, 4 Rob. Adm. 147. 
 
 * The Deer, U. S. D. C. Mass., 2 Am. Law Review, 101. 
 
 VOL. 11. 21
 
 322 LAW AND JURISDICTION OF ADMIRALTY. [BOOK 11. 
 
 CHAPTER IX. 
 
 OF REPAIRS AND SUPPLIES. 
 
 TVe have already considered the lien of the material man at 
 common law and by virtue of State statutes, and we propose now to 
 consider the jurisdiction of our courts of admiralty over the subject 
 of repairs and supplies and the various questions which arise when 
 these subjects are presented in those courts. 
 
 By the general maritime law, and the civil law from which 
 many of its provisons are derived, all material men have a lien on 
 the ship.i This was asserted also and enforced in the admiralty 
 courts in England, until they were compelled to abandon this 
 jurisdiction in the reign of Charles 11.^ Since then, this lien has 
 been confined in that country (until a statute passed in 1840 gave 
 a lien to material men generally) ^ to the case of a shipwright or 
 other person, to whom possession of the ship has been given for 
 the purpose of repair, who has a common-law lien for his pay. 
 
 ^ Dig. 14, 1, 1 ; Cassaregis, Disc. 18 ; Ord. de la Mar. liv. 1, tit. 14, art. 16 ; 1 
 Valin, Com. 363 ; Consulat de la Mer, par Boucher, c. 32, 33, 34. It is gener- 
 ally stated that this principle of the maritime law is derived from the civil law. 
 See The General Smith, 4 Wheat. 438, 443 ; The Nestor, 1 Sumner, 73, 79 ; The 
 Stephen Allen, Blatchf. & H. Adm. 175, 177. But this has been shown to be 
 incorrect. The Young Mechanic, 2 Curtis, C. C. 404 ; The Calisto, Daveis, 29, 
 31. 
 
 ' In the case of The Zodiac, 1 Hagg. Adm. 320, 325, Lord Stoioell remarked : 
 "In most of the countries governed by the civil law, repairs and necessaries form 
 a lien on the ship itself. In our country, the same doctrine had for a long time 
 been held by the maritime courts, but, after a long contest, it was finally over- 
 thrown by the courts of common law, and by the highest judicature in the coun- 
 try, the House of Lords, in the reign of Charles II." See Iloare v. Clement, 2 
 Show. 338 ; Justin v. Baliam, 1 Salk. 34, 2 Ld. Kaym. 805 ; Watkinson v. Berna- 
 diston, 2 P. Wms. 367 ; Wilkins v. Carmichael, 1 Doug. 101 ; Ex parte Shank, 1 
 Atk. 234. See also The Neptune, 3 Hagg. Adm. 129, 140 ; The John, 3 Rob. 
 Adm. 170. 
 
 • 3 & 4 Vict. c. 65, § 6. For decisions under this act see The Alexander, 1 W. 
 Rob. 288 ; The Sophie, id. 368; The Ocean Queen, id. 457 ; The Ocean, 2 W. 
 Rob. 368.
 
 CH. IX.] REPAIRS AND SUPPLIES. 323 
 
 This lien or " privilegium," by the civil law and the general 
 maritime law, extends to all ships without any distinction between 
 foreign and domestic vessels. ^ In this country the law is now well 
 settled that while the admiralty will take cognizance of suits in rem 
 in the case of foreign vessels,^ yet it will not enforce this remedy 
 in the case of domestic vessels.^ For many years our courts of ad- 
 miralty entertained jurisdiction in the case of domestic vessels 
 where a lien was given by a State statute,* or where the material 
 man had a common-law lien growing out of possession.^ And in 
 1844, the Supreme Court of the United States by an admiralty 
 rule recognized this practice, and declared that there should be a 
 proceeding in rem in the cases of domestic ships, where by the 
 
 * See supra, p. 322, n. 1. 
 
 2 The St. Jago de Cuba, 9 Wheat. 409 ; North v. Brig Eagle, Bee, 78 ; 
 The Jerusalem, 2 Gallls. 345 ; Ex parte Lewis, id. 483 ; Zane v. The Brig Presi- 
 dent, 4 Wash. C. C. 453 ; The Gustavia, Blatchf. & H. Adm. 189 ; The Schooner 
 Active, Olcott, Adm. 286 ; Cole v. The Atlantic, Crabbe, 440 ; Tree v. The In- 
 diina, id. 479. 
 
 ^ The St. Jago de Cuba, 9 Wheat. 409 ; TurnbuU v. The Ship Enterprize, Bee, 
 345. 
 
 * Peyroux v. Howard, 7 Pet. 324; Weaver v. The S. G. Owens, 1 Wallace, C. 
 C. 358 ; Sutton v. The Albatross, 2 id. 327; Raymond v. Schooner Ellen Stew- 
 art, 5 McLean, C. C. 269 ; The Ferax, 1 Sprague, 180; Phillips v. The Thomas 
 Scattergood, Gilpin, 7 ; The Sam Slick, 1 Sprague, 289. In Boon v. The Hornet, 
 Crabbe, 426, a canal-boat built and used for service in the interior canals of Penn- 
 sylvania was hauled on shore on the bank of a river where the tide ebbed and 
 flowed, and there repaired. Held, that although the law of the State gave a lien 
 on vessels for all debts incurred on their account, the court would not take cog- 
 nizance of such a service, the employment of the vessel not being maritime In its 
 character ; and the general rule was laid down that while the court would take 
 cognizance under a State law of all contracts or charges of an admiralty or mari- 
 time nature, notwithstanding no lien was given therefor by the general maritime 
 law, it would not of contracts or charges not of an admiralty or maritime nature, 
 although a lien was given therefor by such State statute. 
 
 * The Schooner Marion, 1 Story, 68, 72. The case of Peyroux v. Howard, 7 
 Pet. 324, seems to rest upon this principle, for the CivU Code of Louisiana, under 
 which the case was decided, gives no greater privilege than a material man has 
 in other States by the common law. But if the possession is parted with, it is 
 well settled that this lien is gone. The General Smith, 4 "Wheat. 438 ; The St. 
 Jago de Cuba, 9 id. 409; Buddington u. Stewart, 14 Conn. 404; Boon v. The 
 Hornet, Crabbe, 426 ; Tree v. The Indiana, Id. 479 ; The Stephen Allen, Blatchf. 
 & H. Adm. 175; Turnbull v. The Ship Enterprize, Bee, 345; Clinton v. The 
 Brig Hannah, Id. 419.
 
 324 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 local law a lien is given to material men for supplies, repairs, or 
 other necessaries.! Subsequently, however, by a rule which went 
 into effect May 1, 1859, a proceeding m personam but not in rem 
 is allowed in cases of domestic ships for supplies, repairs, or other 
 necessaries.2 The lien given by the State law has been enforced 
 since the passage of this rule in two cases where the libel was filed 
 before the rule went into effect.^ 
 
 It is very obvious, however, that the State legislatures have no 
 power to confer any additional jurisdiction upon the United States 
 courts ; ^ and it is only where the lien given by the State statute 
 is in respect to a subject which is maritime in its nature that 
 admiralty process will lie to enforce it. Thus the Supreme Court 
 of the United States has refused to enforce a lien given by a State 
 statute for building a vessel.^ 
 
 In cases where the lien given by a State statute could be en- 
 forced in admiralty, the court, in applying the statute and 
 enforcing the lien, would doubtless be governed by the terms of 
 that statute, and not by the maritime law generally, wherever 
 those terms were explicit.^ But in construing *hose terms where 
 
 ' 1 2 Admiralty Eule, 3 How. vi. 
 
 " 21 How. iv. 
 
 ' The St. Lawrence, 1 Black, 522. See also The Potomac, 2 id. 681. Pre- 
 vious to this rule, it had been decided that under the 12th old admiralty rule, no 
 action in personam would lie in the case of a domestic vessel. Merrittv. Sackett, 
 U. S. D. C. Western District of New York, 12 Law Rep. 511. In Maguire v. 
 Card, 21 How. 248, the court refused to enforce a lien given by a State law 
 against a vessel which was engaged In trade exclusively within the State of Cali- 
 fornia. This was before the new rule went into effect. Nelson, J., delivering 
 the opinion of the court said : " We have determined to leave all these liens 
 depending upon State laws, and not arising out of the maritime contract, to be 
 enforced by the State courts." This decision was followed in The Troy, 4 Blatchf. 
 C. C. 755. 
 
 * See ante, p. 1 72, n. 2. 
 
 * Roach V. Chapman, 22 How. 129. A similar decision was given by Judge 
 Belts In The Sch. Cocrnine, U. S. D. C. New York, 1858, 21 Law Rep. 343, 7 
 Am. Law Reg. 5. We shall hereafter consider the question, whether a contract 
 for the building of a vessel is maritime In Its nature. See post, p. 328, n. 1. 
 
 « The General Smith, 4 Wheat. 438 ; The Barque Chusan, 2 Story, 455,462; 
 The Ship Robert Fulton, 1 Paine, C. C. 620, 626 ; The Calisto, Daveis, 29, 33 ; 
 The Stephen Allen, Blatchf & H. Adm. 175, 179; Harper v. The New Brig, 
 Gilpin, 536; Tree v. The Indiana, Crabbe, 476; The Young Sam, U. S. C. C. 
 Maine, 20 Law Rep. 608.
 
 CH. IX.] EEPAIRS AND SUPPLIES. 325 
 
 doubtful, they would probably be influenced by admiralty prin- 
 ciples, and would doubtless apply them to a case distinctly before 
 them, although the case itself might not come within their juris- 
 diction, except by force of the statute.^ 
 
 What is a foreign vessel is sometimes a question of difficulty. 
 In one case the vessel was built in New York on account of per- 
 sons residing in South America. She was never documented as 
 an American bottom, and was cleared and went to sea as the prop- 
 erty of foreigners. Shortly after she met with a disaster at sea and 
 returned to New York, where she was arrested on account of pro- 
 visions furnished her before she sailed. It was contended that as 
 she was built in New York she was a domestic vessel, but the 
 court held that she was a foreign vessel.^ 
 
 If a vessel is in her home port, but held out by her owners as a 
 foreign vessel, it seems that material men, who repair her, or fur- 
 nish supplies, will have a lien, if the imposition practised upon 
 them is such as to mislead men of ordinary vigilance.^ 
 
 For the purposes of the distinction between foreign and domestic 
 vessels, each of our States is considered foreign as to the rest.^ 
 
 If it is in CO .roversy to which State a vessel belongs, the enrol- 
 ment made under oath by the managing owner, pursuant to the 
 
 ^ See The Richard Busteed, 1 Sprague, 449 ; Boon v. The Hornet, Crabbe, 
 426. 
 
 * The Active, Olcott, Adm. 286. See also Parmlee v. The Charles Mears, 1 
 Newb. Adm. 197. But in Scott v. The Plymouth, 1 Newb. Adm. 56, 6 McLean, 
 C. C. 463, it was held that a vessel built at Cleveland under a contract with par- 
 ties resident at Buifalo, in New York, belonged to. Cleveland until after her 
 delivery and first voyage. 
 
 ^ The St. Jago de Cuba, 9 Wheat. 409. So if a vessel puts into an enemy's 
 port, and pretends to be a neutral, her owners are liable. Musson v. Fales, 1 6 
 Mass. 332. 
 
 * This doctrine has grown out of a dictum in the case of The General Smith, 4 
 Wheat. 438, but it may be considered as settled. See Pratt v. Reed, 19 How. 
 359 ; The Brig Nestor, 1 Sumner, 73 ; The Barque Chusan, 1 Sprague, 39, 2 
 Story, 455 ; Leland v. The Ship Medora, 2 Woodb. & M. 92 ; Davis v. Child, 
 Daveis, 71 ; Sarchet v. The Sloop Davis, Crabbe, 185 ; The Stephen Allen, 
 Blatchf. & H. Adm. 175 ; The Monsoon, 1 Sprague, 37 ; Reeder v. The Steam- 
 ship George's Creek, U. S. D. C. Maryland, 3 Am. Law Reg. 232 ; Dudley v. 
 The Steamboat Superior, 1 Newb. Adm. 176 ; Leddo v. Hughes, 15 111. 41 ; Ross 
 V. Steamboat Neversink, U. S. D. C. New York, Shipman, J., December, 1866, 
 affirmed by Nelson, J., November, 1867; Carter v. Sch. Byzantium, 1 Clifford, 
 C. C. 1. See also ante, p. 9, n. 1.
 
 326 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 act of Congress requiring it to be made at the port nearest the 
 residence of the owner, is privid facie evidence that the vessel 
 belonged to that port, and will require clear proof of the notorious 
 residence of the owner or owners at some other place to overcome 
 it ; and the presumption is strengthened by the fact that the boat 
 has on its stern its registered name, and the name of the port of 
 enrolment.^ 
 
 It has been doubted whether a vessel built in one State, where 
 her owner lived, and taken to another State to be rigged, without 
 being enrolled or licensed, can be considered as a foreign vessel, so 
 as to give the court jurisdiction.^ 
 
 The residence of the owners of the vessel, and not that of the 
 furnisher, is to be looked to, in determining whether the vessel is 
 a domestic one or not. Tlierefore, if the vessel is in her home 
 port, no lien exists for the supplies there furnished, although the 
 furnisher resides and does business in another State.^ So where 
 
 ^ Dudley v. Steamboat Superior, 1 Newb. Adm. 1 76. In Tree v. The Indiana, 
 Crabbe, 479, the enrolment was considered as conclusive. But this position was 
 held to be incorrect in Hill v. The Golden Gate, 1 Newb. Adm. 308. In The 
 Sarah Starr, 1 Sprague, 453, the vessel was built in Connecticut, under a contract 
 of which the purchaser was to pay a small part of the purchase-money in cash, 
 and the residue by instalments, and upon the payment of the whole he was to 
 have a bill of sale. The title was to remain in the builders until full payment had 
 been made, bat the purchaser was to have possession until he made default of 
 some payment. Possession was delivered to the purchaser, who ran her for nearly 
 three years. He lived in New Jersey, but had a place of business in New York. 
 The vessel was enrolled and licensed at a custom-house in Connecticut as owned 
 by the builders. At the time the supplies were furnished in New York, the pur- 
 chaser had let the vessel to the meister on shares. Held, the vessel was to be con- 
 sidered as owned in Connecticut, and therefore was a foreign one. 
 
 * Per Taney, C. J., U. S. C. C. Delaware, in a case mentioned in Sarcbet v. 
 The Sloop Davis, Crabbe, 185. 
 
 * The Eliza Jane, 1 Sprague, 132. In Weaver v. The S. G. Owens, 1 Wallace, 
 C. C. 359, it was said that the residence of the owner determined whether a ves- 
 sel was domestic or not, and for this purpose the person rightfully in possession, or 
 havinf the control of the vessel by appointing the officers, would be considered as 
 owner, whether he was lessee, mortgagee, or parol vendee, even though some 
 other person might be the registered owner and have the legal title or general 
 ownership in himself. And in Hill v. The Golden Gate, 1 Newb. Adm. 308, the 
 charterers who were in possession were considered as the owners, and the supplies 
 being furnished in the port where they resided, the vessel was held not to be 
 liable. But in Thomas i;. Osbom, 19 How. 22, 29, it was held that the master, 
 though he was the charterer, could bind the vessel for necessary repairs in a for- 
 eign port.
 
 CH. IX.] BEPAIRS AND SUPPLIES. 327 
 
 the vessel was owned in New York, and the material men also 
 lived and did business there, but the supplies were furnished 
 through their agent in New Jersey, where the vessel was at the 
 time, it was held that the vessel was liable.^ 
 
 A ship-broker has a lien on a foreign vessel in the nature of the 
 lien of a material man for services in shipping the crew of a vessel, 
 and for advances for their wages. ^ The consignee of a vessel in a 
 foreign port, who has no funds of the ship in his hands, has a lien 
 on the ship for necessary supplies furnished on the credit of the 
 ship.3 In one case, the owners of a vessel, the master of which 
 had furnished a chain and anchor to another vessel in a foreign 
 port, were held to have a lien on the second vessel for the sup- 
 plies.^ 
 
 A person who lends money for the purpose of repairing a vessel, 
 or of furnishing her with supplies, and which is actually employed 
 for that purpose, is entitled to the same privilege against the 
 vessel as one who actually furnishes the supplies, or performs the 
 labor.^ 
 
 It has been held that the owner of a ship-yard who employs a 
 railway cradle and other fixtures and implements for hauling a 
 vessel out of the water, can sue in admiralty for his services, al- 
 though the vessel is repaired by other parties.^ 
 
 Can the builder of a ship sue in admiralty for a breach of 
 the contract ? We know of no reason on principle why there 
 should be any difference between a contract for building, and 
 a contract for repairing, and should hold that, while a lien can- 
 not be enforced for building if the builders and owners of the 
 vessel reside in the same State, the admiralty should have juris- 
 diction where the parties to the contract live in different States, 
 and that in cases of domestic vessels the admiralty should exer- 
 cise jurisdiction in personam, as we regard the building of a 
 
 » Morris v. The Neversink, U. S. D. C. New York, 1866, SMpman, J. 
 
 ' The Gustavia, Blatchf. & H. Adm. 189. The court said, " The contract has 
 all the constituents of a maritime contract. It had respect to the equipment of a 
 foreign vessel for sea service, and may accordingly be prosecuted in this court, and 
 carry with it the privileges appertaining to suits by material men." 
 
 ^ The Eliza Jane, 1 Sprague, 152. 
 
 * The Sea Lark, 1 Sprague, 571. 
 
 ^ See ante, p. 16, n. 3. 
 
 « Wortman v. Griffith, 3 Blatchf. C. C. 528.
 
 328 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 vessel as much a maritime transaction as the repairing of the 
 vessel. 
 
 We are, however, constrained by authority to say that admiralty 
 has no jurisdiction of a contract to build a vessel, whether it is 
 domestic or foreign, or whether the lien is given by a State statute 
 or notji and has no jurisdiction in personam over such a contract.^ 
 
 ^ The lien given by a State statute to j^ersons building a vessel, has been en- 
 forced in admiralty in numerous cases. The Calisto, Daveis, 29, s. c. nom. 
 Read v. The Hull of a New Brig, 1 Story, 244 ; The Hull of a New Ship, Daveis, 
 199; The Young Mechanic, Ware, 2d ed. 535, 2 Curtis, C. C. 404; The Kear- 
 sarge. Ware, 2d ed. 546, 2 Curtis, C. C. 421 ; Purinton v. The Hull of a New 
 Ship, Ware, 2d ed. 556, 2 Curtis, C. C. 416; Sewall v. The Hull of a New 
 Ship, Ware, 2d ed. 565 ; Davis v. A New Brig, Gilpin, 473. In Clinton v. Brig 
 Hannah, Bee, 419, it was held that a shipwright could not sue in rem for his 
 wages for building a vessel. And in a case before Taney, C. J., in the United 
 States Circuit Court of Delaware, cited in Crabbe, 199, it was doubted whether 
 the rigging of a new vessel came within the views or language of the maritime 
 laws which give a lien to material men for repairs. But in Parmlee v. The 
 Charles Mears, 1 Newb. Adm. 197, a contract for building a vessel, made with the 
 owners in another State, was enforced. This question came before the court in 
 People's Ferry Co. v. Beers, 20 How. 393. The libel was filed against the vessel 
 in rem to recover the balance due on a contract for building the vessel. The 
 libellant resided in New Jersey, and the respondent in New York. The vessel 
 was built in New Jersey and delivered to the owner in New York previous to the 
 bringing of this action. There was no lien given by any New Jersey statute, and 
 the only question was whether the contract for building a vessel was of such a 
 maritime nature that it could be enforced in admiralty. The court said : " The 
 lien attaches to foreign ships and vessels only in favor of the carpenter who 
 repairs in a case of necessity, and in the absence of the owner. It would be a 
 strange doctrine to hold the ship bound, in a case where the owner made the con- 
 tract in writing, charging himself to pay by instalments for building the vessel at 
 a time when she was neither registered nor licensed as a sea-going ship. So far 
 from the contract being purely maritime, and touching rights and duties apper- 
 taining to navigation (on the ocean or elsewhere), it was a contract made on 
 land, to be performed on land." The libel was dismissed. In The Richard Bus- 
 teed, 1 Sprague, 441, it was decided that a lien given by a statute of Massachu- 
 
 = In Cunningham i'. Hall, 1 Clifford, C. C. 43, 46, the question presented was 
 thus stated by the court : " Whether the purchaser of a ship, constructed for him 
 under a written contract, after he has paid the consideration and accepted the 
 ship, and fitted her as a sea-going vessel, may maintain in the district court a 
 suit in personam for damages against the builder for the non-completion of the 
 ship according to the contract, on account of defects in the construction which 
 were discovered subsequent to her delivery and employment on a foreign voyage." 
 The libel was dismissed.
 
 CH. IX.] REPAIRS AND SUPPLIES. 829 
 
 Before the year 1856, the law, in regard to the necessity which 
 would authorize material men to trust to a foreign vessel, and 
 which would create a lien upon her, was well settled. It is thus 
 stated by Judge Sprague : " It was requisite, first, that the vessel 
 should need the supplies, or that, after reasonable inquiry, she 
 should appear to need them ; and secondly, that in giving credit 
 to the vessel and owners, the material man should act in good 
 faith ; and he would not be deemed to act in good faith, if he knew 
 that the master had funds wherewith to pay for the supplies, or if 
 facts were known to him which should create suspicions, and put 
 him upon inquiry, when such inquiry would have led to the knowl- 
 edge that the master had funds, and had no right, therefore, to 
 obtain supplies on credit. That is, if the material man had knowl- 
 
 setts for labor in building a vessel, could be enforced in admiralty. The case of 
 The People's Ferry Company v. Beers, 20 How. 393, was reviewed at length, 
 and the learned judge came to the conclusion that the contract for building a ves- 
 sel is a maritime contract, and if a lien is given by a State court it should be en- 
 forced in admiralty. In the above case of the People's Ferry Co. v. Beers, 20 
 How. 393, the court said: "It is proper, however, to notice the fact, that district 
 courts have recognized the existence of admiralty jurisdiction in rSm against a 
 vessel to enforce a carpenter's bill for work and materials furnished in construct- 
 ing it, in cases where a lien had been created by the local law of the State where 
 the vessel was built. Thus far, however, in our judicial history, no case of the 
 kind has been sanctioned by this court." Judge Belts has acted upon the 
 above suggestion by holding that the lien given by a State statute for building and 
 equipping a vessel cannot be enforced in admiralty. The Sch. Coernine, U. S. 
 D. C. New York, 1858, 21 Law Rep. 343, 7 Am. Law Reg. 5. A contrary decis- 
 ion was given in the case of The Revenue Cutter No. 1, U. S. D. C. Ohio, 21 
 Law Rep. 281. An action was brought in rem by a person furnishing materials 
 to the original contractor, under the statute of Ohio, which gives a lien to parties 
 building a vessel, and to those who furnish materials for building. The assignees 
 of the original builders intervened as claimants, alleging a lien by virtue of their 
 contract with the owner. The court held that as the contract between the 
 builders and owners was not a maritime contract, no lien existed in their favor ; 
 that there was no privity of contract between the libellant and the owner, but for 
 the supplies furnished to the builders a lien was given by the State law, which 
 could be enforced in admiralty. But in a more recent case the Supreme Court 
 state the rule positively that " A contract for building a ship or supplying en- 
 gines, timber, or other materials for her construction is clearly not a maritime 
 contract." The libellant in this case had supplied the boilers and engines of the 
 boat when she was built, and brought this action in rem to enforce the lien given by 
 the State law. The suit was brought before the new 12th admiralty rule went 
 into operation, but it was held that it could not be maintained. Roach v. Chap- 
 man, 22 How. 129.
 
 330 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 edge that the master was acting in bad faith toward his employers, 
 or knew oi circumstances which ouglit to admonish him to make 
 inquiry that would have led to such knowledge, then he would 
 be affected with bad faith, as colluding with the master, and aiding 
 him in violating his duty to his owner. But if the material man 
 had no reason to suppose that the master was violating his duty in 
 obtaining a credit, he might, upon request of the master, trust to 
 the vessel and owners, and a lien would thereby be created. The 
 farther inquiry, whether, if credit were necessary, it would not be 
 practicable to obtain the supplies upon the mere personal responsi- 
 bility of the owner, was never required or even suggested. The 
 right to trust a vessel, where the credit was properly given, was a 
 matter of course. This was for the benefit of the owners ; for the 
 greater the security where credit is given, the better the terms, 
 and to a foreign owner this would rarely be unimportant, however 
 good his personal credit might be, for some apprehensions as to 
 the continued solvency of persons engaged in commerce are never 
 absent from the prudent seller." ^ 
 
 In 1856 two cases were decided by the Supreme Court of the 
 United States, which have been supposed to essentially change the 
 law applicable to material men. The first of these ^ was a suit in 
 rem to recover for supplies and repairs furnished the vessel at Val- 
 paraisoj the vessel being owned in Plymouth, Massachusetts. The 
 majority of the court held on the facts that the master had de- 
 serted his duty, and used the vessel for his own purposes, and 
 appropriated her earnings, all of which facts were known to the 
 persons furnishing the repairs and supplies, and that the libellants 
 were not entitled to recover. This case, therefore, made no 
 change in the law. There are, however, dicta in the case which 
 seem at variance with the previously well-established law, but 
 taken in connection with the facts in the case they do not seem to 
 be intended to make this change.^ 
 
 ' The Sarah Starr, 1 Sprague, 455. 
 
 * Thomas v. Osborn, 19 How. 22. 
 
 * These dicta are as follows : on p. 30, " But the limitation of the authority of 
 the master to cases of necessity, not only of repairs and supplies, but of credit to 
 obtain them, and the requirement that the lender or furnisher should see to it that 
 apparently such a case of necessity exists, are as ancient and well established as 
 the authority itself" And on p. 31 : " To constitute a case of apparent necessity,
 
 CH. IX.] REPAIRS AND SUPPLIES. 831 
 
 In the next case,^ the vessel belonged at Buffalo, in the State of 
 New York, as her home port, and the debt was contracted at Erie, 
 in the State of Pennsylvania. The demand claimed in the libel 
 was a running account for coal furnished a steamboat, from June, 
 1852, to May, 1854. The. master of the boat was the sole owner. 
 The answer denied that the supplies were furnished on the credit 
 of the boat, and averred that they were furnished on the credit of 
 the master. There does not appear from the report to have been 
 any evidence that the coal was furnished on the credit of the boat. 
 The libel was dismissed, on the ground that there was no proof to 
 show that there was a necessity for a credit on the vessel.^ 
 
 Since the decision of the Supreme Court of the United States in 
 
 not only must the repairs and supplies be needful, but it must be apparently ne- 
 cessary for the master to have a credit, to procure them. If the master has funds 
 of his own, which he ought to apply to purchase the supplies which he is bound 
 by the contract of hiring to furnish himself, and if he has funds of the owners, 
 which he ought to apply to pay for the repairs, then no case of actual necessity 
 to have a credit exists. And if the lender knows these facts, or has the means, 
 by the use of due diligence, to ascertain them, then no case of apparent necessity 
 exists to have a credit ; and the act of the master in procuring a credit does not 
 bind the interest of the general owners in the vessel." See remarks of Judge 
 Sprague on these dicta, in The Sarah Starr, 1 Sprague, 458, 459. 
 
 1 Pratt V. Eeed, 19 How. 359. 
 
 * Nelson, J. in this case said : " But the more serious difficulty in the case, on 
 the part of the libellant, is the entire absence of any proof to show that there was 
 also a necessity at the time of procuring the supplies, for a credit upon the vessel. 
 This proof is as essential as that of the necessity of the article itself The vessel 
 is not subject to a lien for a common debt of the master or owner. It is 
 only under very special circumstances, and in an unforeseen and unexpected 
 emergency, that an implied maritime hypothecation can be created. It 
 seems also to be supposed that circumstances of less pressing necessity for 
 supplies or repairs, and an implied hypothecation of the vessel to procure 
 them, will satisfy the rule, than in a case of necessity sufficient to justify a loan 
 of money on bottomry, for the like purpose. We think this a misapprehen- 
 sion. The only difference is, that before a bottomry bond can be given an ad- 
 ditional fact must appear ; namely, that the master could not procure the money 
 without giving the extraordinary interest incident to that species of security. 
 This distinction was attempted in the case of The Alexander, 1 W. Rob. 336, but 
 was rejected by Dr. Lushington. A principle excluding any such distinction, has 
 been laid down in the case of Thomas v. Osborn." The case of The Alexander 
 does not contain any reference whatsoever to the point for which it is cited, nor is 
 there anything in the case of Thomas v. Osborn, to sustain the proposition that 
 the libellant must show a necessity for a credit on the owners.
 
 332 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 the case of Pratt v. Reed, three questions are presented when it is 
 sought to enforce a lien upon the vesseh First, were the supplies 
 or repairs necessary ? Second, were they furnished on the credit 
 of the vessel ? Third, was there a necessity for a credit on the 
 Tessel ? 
 
 First, as to the necessity of the supplies or repairs. The law is 
 well settled, that whatever is reasonably fit and proper for the use 
 of a vessel in her navigation, is deemed necessary ;^ or as it has 
 been said, that is deemed necessary which a careful and prudent 
 owner would supply .^ 
 
 Though the vessel is in a foreign port, yet if the owners are 
 present,'^ or if they have an agent there, who will advance what is 
 necessary,^ the master has no authority to bind the vessel, but this 
 rule does not apply to the master if he is also a charterer,^ or even 
 if he be part owner. ^ 
 
 If, by the terms of the charter-party, the charterer becomes her 
 owner for the voyage, the agent of the charterer can bind the ves- 
 sel for supplies furnished at a foreign port, although the person 
 furnishing the coal knew of the charter, and knew that, according 
 
 ••See ante, p. 14, 15. 
 
 * The Alexander, 1 W. Rob. 346. In Sarchet v. The Sloop Davis, Crabbe, 
 185, a chain cable was loaned by its maker to a master for the use of his vessel, 
 under an agreement that it should be returned when another chain cable had 
 been made and delivered on board. The second cable was made and delivered 
 on board, when the master agreed to return the first in a specified time. Before 
 this time arrived the vessel sailed, and the cable was never returned. The court 
 held that the vessel was liable for both. Water casks are included in " materials." 
 Zane v. The Brig President, 4 Wash. C. C. 453. 
 
 ^ Shrewsbury v. Sloop Two Friends, Bee, 433 ; The St. Jago de Cuba, 9 Wheat. 
 409, per Johnson, J. The case of North v. Brig Eagle, Bee, 78, is perfectly con- 
 sistent with these cases, for the supplies were furnished on the express stipulation 
 that the vessel should be liable, and the owners were not known. See also 
 Williams v. The Polly, cited Bee, 168. 
 
 * Boreal v. The Golden Rose, Bee, 131 ; Pritchard v. Schooner Lady 
 Horatia, id. 167. 
 
 '' Thomas I?. Osborn, 19 How. 22; The Nestor, 1 Sumner, 73; Ross v. Steam- 
 boat Neversink, U. S. D. C. New York, 1866, Shipman, J. 
 
 " In Pratt v. Reed, 19 How. 361, Nelson, J. said : "We do not say that the mere 
 fact of the master being owner of itself excludes the possibility of a case of necessity 
 that would justify an implied hypothecation ; but it is undoubtedly a circumstance 
 that should be attended to in ascertaining whether any such necessity existed in 
 the particular case."
 
 CH. IX.] REPAIRS AND SUPPLIES, 333 
 
 to its terms, the charterer was bound to furnish coal for the voy- 
 age.^ And if the vessel is in a foreign port, and the owner is 
 present and orders supplies, this will give a lien on the vessel, 
 if the owner has no funds. ^ 
 
 Second, as to credit being given to the vessel. This is a matter 
 of fact to be ascertained from all the evidence in the case. Evi- 
 dence that the debt is charged to the vessel and owners on the 
 books of the person claiming a lien is admissible to show that 
 credit was given to the vessel.^ It has been said that if supplies 
 are furnished to a foreign vessel, they are deemed to be furnished 
 on the credit of the ship and owners, imtil the contrary is proved.* 
 
 In one case, where the master testified that there was nothing 
 said one way or the other as whether the ship would be liable for 
 the payment. Judge Sprague said : " It is not necessary that the 
 ship should be, in terms, made liable for the payment. There is 
 nothing in the recent case to disturb the old doctrine that a tacit 
 lien arises when the circumstances necessary to create it exist." ^ 
 
 In a case where coal was furnished a steamboat from time to 
 time, and part of it was paid for by the master from the earnings 
 of the boat, it was held that this did not exonerate the boat.^ 
 
 1 The City of New York, 3 Blatchf. C. C. 187. 
 
 * The James Guy, 1 Bened. Adm. 112. 
 
 * The Chusan, 2 Story, C. C. 468 ; Ross v. Steamboat Neversink, U. S. D. C. 
 New York, 1866, SJdpman, J. ; The Prospect, 3 Blatchf. C. C. 526 ; The James 
 Guy, 1 Bened. Adm. 112. 
 
 * The Nestor, 1 Sumner, 73 ; The Prospect, 3 Blatchf. C. C. 526. 
 ^ The Sea Lark, 1 Sprague, 573. 
 
 ^ Ross V. Steamboat Neversink, U. S. D. C. New York, 1866, Shipman, J. said 
 " No doubt Capt. Thornell intended to pay for the coal out of the earnings of the 
 boat (and he did in fact pay some), but I find nothing in the proof to warrant 
 the inference that either he or the libellants understood that the contract rested 
 on his personal credit." See also The James Guy, 1 Bened. Adm. 112. In 
 Boyce v. Steamer Patapsco, U. S. D. C. New York, Sldpman^ J.., the libellant 
 sought to hold the steamer liable for coal furnished in Baltimore. The steamer 
 was running in a line between New York and Baltimore. There was an agent of 
 the company in Baltimore who attended to the business there, including the pur- 
 chasing of supplies. Coal was purchased from time to time of different parties, 
 and among others of the libellant, and bills were made out to the company and 
 sent in monthly, and were all paid by the agent except the bills for two months. 
 The court said : " The libellant dealt, not with the master of the vessel, but with 
 the accredited agent of the company, resident in Baltimore. I think that it is 
 clear that he looked to the company generally, and not to the particular ship, for 
 his pay." The libel was dismissed.
 
 334 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 Third, as to the necessity of the credit. It has been held in 
 some cases, since the decision of Pratt v. Reed, that the libel must 
 set forth that the supplies or repairs could not have been procured 
 on the credit of the owners ; ^ and there must be some evidence to 
 sustain this allegation .^ But what evidence is necessary, or how 
 far the persons claiming a lien are bound to prove a negative, is yet 
 undecided. Suppose a British vessel is in New York, and supplies 
 are furnished, the material men knowing nothing about her owners 
 or their credit, of how many men are they bound to inquire 
 respecting the credit of the owners, and what evidence must they 
 produce to satisfy the court that the owners had no credit ? It 
 might well be held, in such a case, that the presumption was that 
 the owners had no credit, and that the burden was on the claim- 
 ants to prove that they had a credit. 
 
 In a case in New York the vessel was under a charter, and the 
 charterers had no credit, though it was claimed that the general 
 owner had. It was held that since the master could not bind the 
 general owner personally, the question of his credit was immaterial, 
 and the vessel could be held by proof that the charterers had no 
 
 ' The Sarah Starr, 1 Sprague, 461 ; Brown v. Propeller Albany, U. S. D. C. 
 New York, Boston Courier, Feb. 13, 1858. 
 
 * The Sarah Starr, 1 Sprague, 453. In Boyce v. Steamer Patapsco, U. S. D. 
 C. New York, Shipman, J., said : " There is no satisfiictory proof of a necessity 
 apparent at the time for resorting to the credit of the ship. There is proof 
 that the affairs of the company were in fact in a state of embarrassment, and 
 approaciiing the crisis of insolvency. But the proof fails to show that they had 
 not sufficient credit in Baltimore to obtain supplies for their ships at that port. 
 That fact must be clearly proved before this court can assume that the credit of 
 each ship was or could be resorted to in order to obtain the supplies furnished to 
 such vessel." For the facts of this case see p. 333, n. 6. In Taff v. Brig Eledona, 
 U. S. D. C. New York, 18G7, Blatchford, J., a vessel belonging to Halifax, Nova 
 Scotia, was at New York, and in need of some repairs and a new mast. The mas- 
 ter made a written contract with shipwrights to make the repairs and furnish the 
 mast; and he paid the bill, including the cost of the mast, with his own 
 money. The mast was not in fact furnished by the contracting parties, but by 
 the libellant, who supposed he was furnisliing it on the order of the master, and 
 he made out a bill for it to the vessel and owners. He made no inquiries as to 
 whether the vessel needed the mast, or as to whether the master had means or 
 credit, or as to whether it was necessary for the master to obtain it on the credit 
 of the vessel. Held, that the vessel was not liable in rem, as it appeared that the 
 master had funds to pay for the repairs.
 
 CH. IX.] REPAIRS AND SUPPLIES. 335 
 
 credit.^ This case was affirmed on appeal, by Mr. Justice 
 Nelson. 2 
 
 ^ Ross V. Steamboat Neversink, U. S. D. C. New York, 1866. The vessel be- 
 longed to New York and the supplies were furnished at New Brunswick, in the 
 State of New Jersey. Shipman, J., said: "Now it appears from the proofs that 
 the master had no funds of the general owner, and therefore could apply none to 
 the purchase of this coal. An effort was made on the trial to prove that White, 
 the general owner, was well known in New Brunswick, where the coal was pur- 
 chased, to be a man of property, and that he had a credit there to which the mas- 
 ter might have resorted. This attempt failed, for only one person there is proved 
 to have known him. But if he was ever so well known there, and had undoubted 
 credit in that market, it is difficult to see how this fact could tend to prove that 
 no necessity existed for the master to resort to the credit of the boat ; for he, 
 being charterer, could not have bound the owner personally, and, therefore, the 
 credit of the owner would have been of no avail to the master. This would have 
 certainly been the case had the general owner been known to the libellants, and 
 with reasonable diligence they could have ascertained that Thornal and Hine were 
 special owners. The master would then not have been ajjparently the agent of 
 the general owner, and therefore could not have made a valid contract on his 
 behalf, or one by which he would have been bound. It appears that, at the time 
 of the purchase of this coal, Thornal had in his hands, arising out of the current 
 earnings of the boat, three or four hundred dollars, but he at the same time had 
 other and pressing demands arising out of the necessary and daily wants of the 
 boat. The crew were to be paid, and a multitude of items which go to make up 
 the running expenses of such a boat to be attended to. This small amount was 
 no more than a prudent man engaged in such an enterprise ought to have kept 
 on hand from day to day. The only other evidence touching the pecuniary abil- 
 ity of the master simply shows that he was engaged in a heavy speculation in 
 oats, and had twelve or fourteen thousand dollars invested in it, carrying, as he 
 says, a large quantity on a margin. This speculation was not in New Brunswick 
 where this coal was purchased, but in New York or Brooklyn. Thege oats or 
 the speculative contract relating to them, were not available funds in the 
 hands of the master, such as the maritime law regards as sufficient to take 
 away his authority to resort to the credit of his vessel. Whether he could have 
 disclosed of his interest in this speculation in the then state of the market, and had 
 a dollar left, does not appear. The conclusion on the whole case is that he bound 
 the boat in this contract with the libellants." 
 
 - Ross V. Steamboat Neversink, U. S. C. C. New York, Nov. 1867. Nelson, J., 
 said : " The main ground of controversy is whether or not there is sufficient evi- 
 dence of an apparent necessity existing at the time within the rule of the mari- 
 time law." After referring to Pratt v. Reed, and the rule there laid down, the 
 learned judge said : " Applying it to the case in hand we are satisfied that the 
 proofs show an apparent necessity for the credit in question. The master had no 
 funds to meet the payment for the coal as delivered; and the owners and the 
 charterers were not present, but resided at a distance, and, in the sense of the
 
 336 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 The fact that the Supreme Court of the United vStates has, since 
 the decision in Pratt v. Reed, re-enacted the twelfth admiralty 
 rule, does not show an intention on the part of the court to change 
 
 maritime law, in a foreign jurisdiction. The master was one of the charterers, 
 but this does not affect his authority as master. He had no means either as mas- 
 ter or owner, which maizes the apparent necessity for the credit to the vessel the 
 stronger. I lay out of view the general owner, because the master was not his 
 agent, and could bind him by no act of his ; he could only bind the vessel and 
 the charterers. As to the sufficiency of the proofs of this apparent necessity, no 
 fixed rule, from the great diversity of the cases that arise, can be laid down in 
 advance. It must necessarily rest in the sound judgment of the tribunal before 
 which the proofs are presented. Good faith and fair dealing are expected on the 
 part of the person furnishing these supplies in every case, and the absent owner 
 should be guarded against collusion of the master with the material man, or fur- 
 nisher of supplies, and against an unnecessary tacit incumbrance upon his vessel." 
 In The Steamboat James Guy, U. S. C. C. New York, Sept. 1867, the vessel 
 was owned in New York, and was repaired in Baltimore. The owners claimed 
 that the repairs were not furnished on the credit of the vessel, and that there was 
 no necessity for giving credit to the boat, as the owners were in good credit at the 
 time. Nelson, J. : " The main question in this case is whether the steamboat is 
 subject to a Hen for the bill of repairs put upon her by the libellants, and that 
 turns upon the point whether the credit was given to the vessel or to the owner, 
 and after a very full examination of the evidence, I am satisfied that it was the 
 intention of both parties that the payment was to be made when the repaii-s were 
 finished, and that in the mean time the mechanic or workman looked to the vessel 
 as security. It is needless to go over the proofs in support of this conclusion. 
 All the facts and circumstances attending and surrounding the case tend in this 
 direction. It is supposed by the counsel for the respondents that the case of Pratt 
 r. Reed, 19 How. 359, has an important bearing in this case adversely to the lien. 
 We do not so understand it. The necessity for repairs or lien upon the vessel to 
 enable the master to procure them, are insisted upon there as essential elements 
 to support the lien, and in respect to the soundness of which there can be no con- 
 troversy ; but the necessity in both instances (for repairs and lien) must depend 
 upon the facts and circumstances of the case. In Pratt v. Reed they repelled the 
 necessity of the lien. In the present case we hold they support it." In the same 
 case before the district court. The James Guy, 1 Bened. Adm. 112, the objection 
 was taken that it hail not been made to appear that the owner was without credit 
 in Baltimore. Benedict, J., said : " Now, with the most sincere desire to give to 
 this (Pratt v. Reed) and all other decisions of the appellate court their full force 
 and effect as the authoritative guides of the court below, I find it difficult to con- 
 sider the case of Pratt v. Reed as deciding more than this : that when the circum- 
 stances of the case are such as to raise a presumption that there was no necessity 
 for an implied hypothecation, it then becomes incumbent on the libellant to show 
 a necessity for a credit." And Benedict, J., held that it was sufficient to show 
 that the owner was insolvent, without showing that he had no credit in Baltimore.
 
 CH. IX.] REPAIRS AND SUPPLIES. 337 
 
 the rule laid down in Pratt v. Reed. The rule does not give a 
 right to sue in all cases of supplies furnished a foreign ship, but 
 only regulates the remedy in cases where the right exists.^ 
 
 In a case in Massachusetts, a chain and anchor were furnished a 
 vessel by another at the Chincha Islands. The credit of the 
 owner of the vessel supplied was not good in Boston, where he 
 lived, at the time the chain and anchor were furnished, and had 
 not been for two years before that time. There were no mercan- 
 tile houses or persons resident at the Chincha Islands whose 
 business or practici3 it was to lend money or furnish supplies to 
 owners of vessels. The master drew upon the owner twice during 
 the voyage, once at Callao and once at the Chinchas, and sold the 
 drafts at a premium, but it did not appear that credit was given 
 or the drafts taken without a lien vipon the vessel. The owner 
 testified that he got credit after these articles were furnished, but 
 it appeared that it was only for premiums of insurance. It was 
 held that it was sufficiently proved that these necessary supplies 
 could not have been obtained upon the personal credit of the 
 owner, and that a lien therefore attached to the vessel.^ 
 
 The lien of a material man takes precedence of the claims of 
 other creditors.^ And if the vessel is wrecked, and portions of 
 the wreck are saved by the owners, the lien attaches to what is 
 saved, and will be paid after the claims of the seamen are satisfied.'* 
 This lien is lost by the capture of the vessel jure helli.^ 
 
 1 TafF V. The Brig Eledona, U. S. D. C. New York, 1867, BlatcJiford, J. 
 
 2 The Sea Lark, 1 Sprague, 571. 
 
 ' The Granite State, 1 Sprague, 277 ; The Sea Lark, 1 Sprague, 571. 
 
 * Bruce v. The Tackle, etc. of the Steamboat America, 1 Newb. Adm. 195. ; 
 
 ^ The Battle, 6 Wallace, 498. 
 
 TOL. II. 22
 
 388 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 CHAPTER X. 
 
 OF SALE BY ORDER OF ADMIRALTY. 
 
 This occurs principally in cases of bottomry and of salvage, 
 when the court always decree a sale, if necessary, to satisfy the 
 claims which they sustain. Doubtless the same decree would 
 be made in any suit in rem against the ship, where the same 
 necessity arose ; as for wages or repairs. Wherever a sale is 
 decreed, the court give such orders, and take such precautions, as 
 may seem necessary and proper to protect the interests of all 
 parties ; and such a sale, it would seem, conveys the property free 
 from all prior incumbrances.^ And it has been held that a sale by 
 the master, through necessity, has this effect.^ But where the 
 process is in personam, and goods are attached which are after- 
 wards sold, such sale passes only the property of the respondent.^ 
 
 In judicial sales, there is no warranty either express or implied ; 
 and the proceeds when brought into court are not liable in rem to 
 make good a loss sustained by the purchaser in consequence of a 
 defect being discovered in the article sold.* 
 
 In all cases where any goods or other things are arrested, if the 
 same are perishable, or are liable to deterioration, decay, or injury, 
 by being detained in custody, pending the suit, the court may, 
 upon the application of either party, in its discretion, order the 
 same, or so much thereof to be sold as shall be perishable or liable 
 to depreciation, decay, or injury, and the proceeds, or so much 
 thereof as shall be a full security, to be brought into court to 
 abide the event of the suit.^ And if the claimant of a vessel does 
 not apply for her release to him on appraisement or stipulation, 
 
 * See The Steamboat Hendrik Hudson, U. S. D. C. Northern District of New 
 York, 17 Law Rep. 93; The Granite State, 1 Sprague, 277, per Sprague, J.; 
 The Tremont, 1 W. Rob. 163 ; Attorney -General v. Norstedt, 3 Price, 97 ; The 
 Helena, 4 Rob. Adm. 3. 
 
 * The Amelie, 6 Wallace, 18. 
 
 • Boyd V. Urquhart, 1 Sprague, 423. 
 
 ♦ The Monte Allegre, 9 Wheat. 616. 
 » 10th Admiralty Rule.
 
 CH. X.] SALE BY ORDER OF ADMIRALTY. 339 
 
 the court may in its discretion, on application of either party, 
 upon due cause shown, order a sale of said vessel.^ 
 
 In some of our States there are statutes regulating sales of 
 wrecked ships, and wreck commissioners appointed under them. 
 A sale made under these statutes, and in conformity with their 
 provisions, in good faith, gives a title which is sustained in ad- 
 miralty .^ Even if fraudulent, it may give good title as against 
 the owner, to an innocent purchaser, for value, who has neither 
 knowledge nor notice, actual or constructive, of the fraud, nor of 
 any circumstances which would defeat his title .^ We should not 
 hold that a sale in a proceeding in rem under a State statute which 
 authorizes such a proceeding in the case of an ordinary debt, 
 would have the effect of a sale by an admiralty court.* But it 
 
 ^ 11th Admiralty Rule. See also The Nathaniel Hooper, 3 Sumner, 542, 562 ; 
 The Nordstjernen, Swabey, Adm. 260. In United States v. Sch. Lion, 1 Sprague, 
 399, a libel of information was filed against a vessel for forfeiture. The owner 
 did not file a claim. The vessel was sold under an order of court, upon an 
 application made by the district attorney, on the ground that the expenses of 
 holding her in custody were greatly disproportionate to her value, and the 
 marshal had paid the net proceeds into court, having previously deducted one 
 hundred and one dollars for his expenses and fees. The libel against the vessel 
 was afterwards dismissed. Held, that the owner was entitled to the entire pro- 
 ceeds, the sale not being for his benefit. 
 
 * The Sch. Tilton, 5 Mason, 465 ; American Ins. Co. v. 356 Bales of Cotton, 1 
 Pet, 511. See The Bonita, Lush. Adm. 263. 
 
 « The Sch. Tilton, 5 Mason, 465, per Story, J. 
 
 * The Globe, U. S. D. C, Northern District of New York, 13 Law Rep. 488. 
 The vessel, in this case, had been sold under an Ohio statute which authorized 
 proceedings against the vessel in rem. A suit was then commenced in the United 
 States court to enforce the lien for materials furnished the vessel in the port of a 
 State other than her own, prior to the proceedings in the State court, and the 
 lien was enforced. It also appeared that the State statute had no provision for 
 giving notice to all the world, as in an admiralty proceeding in rem, and that in 
 fact no notice was giv^n, though the owner of the vessel appeared and contested 
 the suit. Judge Conkling held, on this point, that such a decree, even if it had 
 the force and effect of a decree in rem, would not be binding, no notice having 
 been given. This decision was overruled by Mr. Justice Nelson, 15 Law Rep. 
 421, 2 Blatchf. C. €.427, but the reasons given by Judge Conkling seem to us 
 very strong. We have little hesitation in stating the law to be, that a State can- 
 not, by changing the name or nature of the process, bind the rights of persons not 
 parties to the suit. The decision of Mr. Justice Nelson is so severely criticised 
 by Judge Conkling in the second edition of his treatise on Admiralty Jurisdiction, 
 Vol. I. p. 88 - 102, that we do not deem it necessary to say more about it. We
 
 840 LAW AND JURISDICTION OF ADMIRALTY. [BOOK 11. 
 
 maj well be, if the lien exists only by the law of the State under 
 which the vessel has been already sold, that it cannot be afterwards 
 enforced against the vessel, because in this case the right which 
 the law of the State gave has been taken away by the giver. ^ 
 
 As to the power of admiralty to decree a sale of a ship for wreck, 
 unseaworthiness, decay, or any similar cause, on petition of the 
 master and proof of the fact, there seems to be some doubt. The 
 common-law courts of England, who do not deny the efficacy of a 
 judicial sale by admiralty, in cases where suits are brought m rem, 
 and who have held such a sale as even prevailing over the right of 
 seizure by the crown for a previous forfeiture,^ do, nevertheless, 
 
 would, however, notice one point taken by Nelson, J., which we consider as op- 
 posed to the first principle of a proceeding in rem ; namely, that notice in some 
 form must be given to all parties interested. The objection is overcome by say- 
 ing that the owner of the vessel appeared and contested the proceedings through- 
 out. But this is surely a novel doctrine to say that therefore the rights of all 
 parties are concluded. Since the above was written, we have met with the 
 learned opinion of Judge Treat, concurred in by Mr. Justice Catron, in which the 
 law is stated as follows : " The acts of the various States creating municipal liens, 
 — providing, as many of them do, for their enforcement in suits instituted against 
 the vessels by name, instead of against the owners, prescribing, too, the modes of 
 proceeding therein, and of divesting those municipal liens, declaring the I'ules of 
 priority among domestic creditors, ordering the sale of the vessel and the appear- 
 ance of the specified lien creditors to urge their demands against the proceeds 
 when brought into the State courts, do not make those proceedings properly suits 
 in rem, or give to those courts admiralty powers or jurisdiction. Hence, the 
 judicial sales made under such acts by the order of State courts, divest only the 
 liens created by those acts, and the municipal liens embraced within their terms. 
 The purchaser in such cases takes, cum onere, as to existing maritime liens, and 
 as to the municipal liens of other States." Hill v. The Golden Gate U. S. C. C. 
 Missouri, 6 Am. Law Reg. 273, 302. See also Riggs v. The Sch. John Richards, 
 1 Newb. Adm. 73 ; Harris v. The Steamboat Henrietta, 1 Newb. Adm. 284 ; 
 Ashbrook v. The Steamer Golden Gate, 1 Newb. Adm. 296. 
 
 * Ashbrook i-. The Steamer Golden Gate, 1 Newb. Adm. 29G. Some of the 
 libellants, in this case, sought to enforce liens under the general maritime law, 
 and others liens under the statute of Missouri. The vessel had already been sold 
 in a suit under that statute in the State court, and the question was as to the effect 
 of the sale. The statute declared that the boat or vessel should, in the hands of 
 the purchaser and his assigns, be free and discharged from all previous liens and 
 claims under the act. The court held that the vessel was not liable after the sale 
 for the claims of those who had a lien only under the statute, but that it was 
 liable to those who had a lien under the general maritime law. 
 
 * See Attorney-General v. Norstedt, 3 Price, 97.
 
 CH. X.] SALE BY ORDER OF ADMIRALTY. 341 
 
 very positively refuse to sanction any such sale for disaster or 
 decay, on petition of the master.^ But Lord Stowell has declared 
 that the courts of admiralty ought, in his judgment, to possess this 
 power, and to be sustained in this exercise of it ; but still held 
 that they did not possess it.^ It might be expected that the 
 admiralty of this country would assert this power. In one case 
 it was so held ; but it was also held that although the court 
 had full power to decree such sale on the application of the mas- 
 ter, yet it would not be conclusive against either the owner or 
 third persons.^ And the courts of admiralty in neither country 
 would hold such decree of sale as conclusive on the subject ; or 
 equally conclusive with one which was made necessary by a suit 
 in rem. 
 
 Closely connected with this subject is that of surveys. A survey 
 is often a document of great value in cases of insurance and loss, 
 and in questions of a sufficient necessity of repair to justify loans 
 on bottomry. And when a sale has been made by a master, or 
 still more perhaps, when a master requests the interposition of a 
 court of admiralty, to decree or justify a sale, then the survey be- 
 comes of the highest importance.* It is a mercantile measure, 
 with which all masters and merchants are familiar ; and the courts 
 of common law as well as of admiralty fully recognize its value. ^ 
 It should be noticed, however, that no report of surveyors is itself 
 evidence at law, unless under peculiar circumstances.^ And if it 
 were received as evidence in admiralty, as it would be for some 
 purposes, its authority and efficacy would depend upon many cir- 
 
 ^ Reld V. Darby, 10 East, 143 ; Morris v. Robinson, 3 B. & C. 196. 
 
 "■ The Fanny & Elmira, Edw. Adin. 117 ; The Warrior, 2 Dods. 288, 293 ; 
 The Pitt, 1 Hagg. Adm. 240. 
 
 ' The Seh. Tilton, 5 Mason, 465, 474 ; Janney v. Columbian Ins. Co., 10 Wheat. 
 411, 418; Dorr v. Pacific Ins. Co. 7 Wheat. 581 ; Armroyd v. Union Ins. Co. 2 
 Binn. 394 ; Steinmetz v. United States Ins. Co., 2 S. & R. 293 ; The Dawn, 
 Ware, 485, 487. 
 
 * The Henry, Blatchf. & H. Adm. 465. See Robinson v. Clifford, 2 Wash. 
 C. C. 1. 
 
 * The Fortitude, 3 Sumner, 228, 261 ; Janney v. Columbian Ins. Co., 10 Wheat. 
 411, 417; The Warrior, 2 Dods. 288; Gordon v. Mass. Ins. Co. 2 Pick. 249; 
 Orrok v. Commonwealth Ins. Co., 21 Pick. 456 ; Wright v. Barnard, 2 Esp. 
 700. 
 
 ^ See Hall v. Franklin Ins. Co., 9 Pick. 466, 477, and cases cited, 2 Parsons on 
 Ins. 529, n. 1.
 
 342 LAW AND JURISDICTION OF ADMIRALTY. [BOOK XL 
 
 cumstances, as upon the character of the report itself, and espec- 
 ially upon the careful observance of all rules and usages which 
 are, as it were, established by the law merchant in relation to the 
 calling of the survey, the appointment of surveyors, the manner of 
 their proceedings and the making up of the report, because these 
 rules are found to be of much use in making the report correct 
 and trustworthy. Thus, the reasons for calling the survey should 
 be plainly set forth ; it should be called by one having authority 
 as port warden, if there be any such officer in the port, or by a 
 consul or commercial agent, or in the absence of these, by some 
 one of proper standing and character. The surveyors should be 
 responsible and skilful men, with the knowledge and experience 
 the service requires. They should proceed carefully and examine 
 thoroughly ; and in their report detail the steps they take, and 
 give, not their conclusions only, but their reasons for them, and 
 the facts on which these reasons rest.^ 
 
 To return, however, to a judicial sale of a ship by order of 
 admiralty, a difficult and perhaps undetermined question arises, 
 to which we have already given some consideration. It exists 
 when part-owners who hold a moiety in interest petition a court of 
 admiralty to decree a sale of a ship against the will of other and 
 dissentient owners. By an early case in England, it appears that 
 a suit had been instituted in admiralty by part-owners, constitu- 
 ting a minority in interest, praying that the ship might be sold, or 
 that they might have some other remedy, as the court might deem 
 proper ; and the other part-owner applied to the King's Bench for 
 a prohibition, Lee, C. J., said : " The admiralty has no juris- 
 diction to compel a sale, and if they sliould do that, you might 
 have a prohibition against selling, or compelling the party to sell, 
 or to buy the shares of the others." The reporter adds : " Which 
 was agreed to per totam euriain, and the rule as to that was made 
 absolute, but as to compelling a security to be given, the rule was 
 discharged." 2 And so the law seems to be settled in England. 
 But in this country, the current of authority, and, as we think, of 
 reason, is in favor of the admiralty possessing this power, on the 
 ground that it is one of the natural and essential elements of 
 admiralty jurisdiction, which belongs to it by the common consent 
 
 ' See cases supra. 
 
 "^ Oustoa V. Hebden, 1 Wils. 101.
 
 CH. X.] SALE BY ORDER OF ADMIRALTY. 343 
 
 of the maritime "WGrld, and is expressly incorporated in many 
 maritime codes, and was taken from or denied to admiralty in 
 England by the King's Bench without any sufficient reason or 
 authority. It is true that one of the ablest and most learned 
 judges in admiralty we have ever had, refused to exercise this 
 power, and denied the jurisdiction of the court.^ In that case the 
 part-owners were equally divided, each of them wishing to employ 
 the ship upon a voyage which the other disliked ; and we must 
 confine his remarks to the circumstances of the case. And when 
 that very case was taken by appeal to the circuit court, Mr. Jus- 
 tice Washington, although declaring that when he had first read 
 Judge Hopkinson's decision he was entirely satisfied with it, finally 
 reversed the decree, and ordered the sale, being coitvinced by the 
 arguments offered and a further investigation, that the court pos- 
 sessed the power and ought to exercise it in such a case as that 
 then before them.^ 
 
 In the District Court of South Carolina, in 1793,^ and in the 
 District Court of Maine, in 1851,* similar decisions have been 
 made. And Mr. Justice Story, in his work on Partnership, ex- 
 amines into the question, and expresses a decided opinion that 
 the American courts of admiralty possess this power, and that it 
 belongs essentially to their jurisdiction.^ And upon the whole, 
 we cannot doubt that our courts would, generally, at least, adopt 
 similar views. 
 
 After a sale is made by order of a court of admiralty, the court 
 will not, except in a very peculiar case, set the sale aside,^ and it 
 is doubtful whether they would do so in any case. 
 
 ' Davis V. Brig Seneca, Gilpin, 10. See also Willings v. Blight, 2 Pet. Adm. 
 288. 
 ' Davis V. Brig Seneca, 18 Am. Jurist, 486. 
 
 * Skrine v. Sloop Hope, Bee, 2. 
 
 * The Vincennes, decided by Judge Ware, but not reported. We are in- 
 formed that in this case there were three part-owners, one owning a moiety, and 
 the other two a quarter each. The owner of the moiety was in possession, and 
 was ship's husband, but the parties disagreed as to the voyage, and on application 
 of the two part-owners of the one moiety, the vessel was ordered to be sold. 
 
 ^ Story on Partnership, § 438. 
 
 ' Pease v. The Propeller Napoleon, 1 Newb. Adm. 37.
 
 344 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 CHAPTER XI. 
 
 OF THE EQUITY JURISDICTION AND PRACTICE OF COURTS OF 
 
 ADMIRALTY. 
 
 Courts of admiralty are not, strictly speaking, courts of equity ; 
 thus, if a libellant disclose that his case rests upon a trust, he, in 
 general, destroys his own right of action in admiralty, because the 
 court cannot take cognizance of a bill in equity in the disguise of 
 a libel in admiralty. ^ But they have still very general and exten- 
 sive powers, analogous to those which belong to courts of equity, 
 and in general govern themselves by similar prhiciples.^ Thus no 
 party prevails there who does not come into court with clean 
 hands and make out a case ex cequo et hono.^ So a condemnation 
 
 ^ Davis V. Child, Daveis, 71, 80. In Andrews v. Essex Ins. Co. 3 Mason, 6, it 
 was held that although a court of admiralty had jurisdiction over a contract of 
 insurance, yet it could not reform the policy, that being the province of a court 
 of equity. Mr. Justice Story said : " To be sure, in a certain sense, and in the 
 exercise of their general jurisdiction, courts of admiralty may be said to be courts 
 of equity, that is, courts proceeding ex cequo et bono, and not confined to the nar- 
 row notions of the common law. But courts of admiralty have no general juris- 
 diction to administer relief as courts of equity. They cannot entertain an original 
 bill or libel for specific performance, or to correct a mistake, or to grant relief 
 against a fraud, though they may perhaps, sometimes, like courts of law, perform 
 what may be deemed analogous functions. They may give the same benefit, as 
 if there were no fraud or mistake, or omission of performance ; but this can be in 
 a few cases only, which fall in all their circumstances completely within their 
 general jurisdiction." See also Bernard v. Hyne, 6 Moore, P. C. 56, 74, per Lord 
 Langdale ; The David Pratt, Ware, 495, 500 ; Deane v. Bates, 2 Woodb. & M. 
 87, 92 ; Kellum d. Emerson, 2 Curtis, C. C. 79. In this latter case the rule is 
 said to be, that a court of admiralty has not the equitable jurisdiction of a court 
 of chancery, but merely applies principles of equity to subjects within its jurisdic- 
 tion. And in Kynoch v. S. C. Ives, 1 Newb. Adm. 205, the court refused to 
 decree tlic specific performance of a contract for the sale of a ship. 
 
 - In Brown v. Lull, 2 Sumner, 443, 449, the court said, concerning mariners' 
 contracts : " Courts of admiralty are not, by their construction and jurisdiction, 
 confined to the mere dry and positive rules of the common law. But they act 
 upon the enlarged and liberal jurisprudence of courts of equity ; and, in short, so 
 far as their powers extend, they act as courts of equity." 
 
 ' In The Schooner Boston, 1 Sumner, 328, 341, Story^ J., said: " I take it to
 
 CH. XI.] EQUITY JURISDICTION OF ADMIRALTY. 345 
 
 against one party in default or contumacy does not prejudice the 
 rights of any other party to make defence on the same facts. ^ 
 And an agreement made under a clear mistake will be set aside.^ 
 And after a case has been closed, it may be reopened for sufficient 
 cause ; but this the court have said it would be very reluctant to 
 do.^ In general, a far less rigorous strictness prevails in the con- 
 struction of maritime contracts in courts of admiralty than in those 
 of common law.* 
 
 be very clear, according to the course of admiralty proceedings, that no person 
 can come into that court and ask its assistance, unless he can, ex CEquo et bono, 
 make out a case fit for its interposition. A court of admiralty is, to the extent of 
 its jurisdiction, at least in cases of this sort, a court of equity, and the same rule 
 applies here as in other courts of equity, that the party who asks aid must come 
 with clean hands." This was said in reference to embezzlement by salvors, 
 which, we have seen, forfeits their claim. 
 
 ' The Mary, 9 Cranch, 126. 
 The Hiram, 1 AVheat. 440. 
 
 ^ In The Fortitudo, 2 Dods. 58, two suits had been commenced on two bottomry 
 bonds, the first of which was on the ship, and the second on the ship, cargo, and 
 freight. The warrants of arrest were executed in the usual manner, and the 
 average account between the ship, freight, and cargo made out by a third person. 
 The bondholders objected to the amount charged for the freight. The master 
 then consented to take their own account of freight, upon which they withdrew 
 their actions, and supersedeas was decreed. The master then chartered the ship 
 anew, and she was again arrested on the same bonds. The court said: "These 
 are the circumstances stated by the master in his affidavit, and they do not, in my 
 apprehension at least, render it necessary that I should inquire how far the per- 
 mission again to open a case which has once been closed, comes within the range 
 of that large discretion with which this court is, by its commission, intrusted. It 
 might, perhaps, within the limits of that very extended equity which it is in the 
 habit of exercising, deem it not improper, in some cases, to suffer a cause to be 
 reopened. But it certainly would not do so, unless there existed very strong 
 reasons to show the propriety of the measure. I feel no hesitation In saying, that 
 mere negligence or oversight would not be a sufficient ground for such an ex- 
 traordinary interposition of the authority of the court. A direct case of fraud, or 
 something equivalent to it, must be made out before I can suffer such a step to be 
 taken." In this case the bondholders were condemned In costs and two months' 
 demurrage. 
 
 * The cases which show that admiralty courts give a liberal and equitable con- 
 struction to the contracts which come before them, are Innumerable. Most of 
 these cases are cited in this work, under various heads. Among them, we may 
 refer again to the following : — as to the wages of seamen and their contracts, see 
 The Minerva, 1 Hagg. Adm. 347; The Prince Frederick, 2 Hagg. Adm. 394 ; 
 The Cypress, Blatchf. & H. Adm. 83 ; The Triton, Id. 282 ; The Crusader,
 
 346 LAW AND JURISDICTION OF ADMIRALTY. [BOOK H. 
 
 Customs and mercantile usages are greatly regarded ; but not 
 those of a particulai' port or place, for these are seldom allowed to 
 control the general maritime law, unless they are such, and so 
 proved, that they must be taken to be a part of the contract. 
 
 Ware, 437 ; The David Pratt, Ware, 495 ; The Betsey & Rhoda, Daveis, 112 ; 
 Ellison V. Ship Bellona, Bee, 106. As to salvage, and agreements extorted 
 in distress, see The Henry Ewbank, 1 Sumner, 400, and The Louisa, 2 W. Rob. 
 22, where an agreed apportionment was set aside. As to bottomry bonds, see 
 The Heart of Oak, 1 W. Rob. 204, 213. As to the lien of material men, see 
 Ramsay v. Allegre, 12 Wheat. 611. And as to the discretion of the court in de- 
 ciding, by the maritime law, forfeitures of seamen's wages, see The Crusader, 
 Ware, 447, and Cloutman v. Tunison, 1 Sumner, 373, 379.
 
 CH. XII.] LAW OF ADMIRALTY IN CASES OF TORT. 347 
 
 CHAPTER XII. 
 
 OF THE LAW OF ADMIRALTY IN CASES OF TORT AND TRESPASS. 
 
 Admiralty jurisdiction in cases of tort depends entirely upon 
 locality. Hence the fact that the vessel is merely engaged in 
 commerce between two ports in the s^me State does not deprive 
 the court of jurisdiction. ^ 
 
 That torts, committed upon the high seas, are within the juris- 
 diction of admiralty, is certain ; and so are those committed on all 
 waters navigable from the sea, and on the lakes and navigable 
 waters connecting the same.^ Jurisdiction has been sustained in 
 a case where a steamboat ran against a pile which had been negli- 
 gently left in the bed of a river ; ^ but in another case, where 
 buildings on a wharf were destroyed by a fire communicated to 
 them from a vessel which was lying at the wharf, the fire being 
 caused by the negligence of those on board the vessel, the court 
 refused to entertain jurisdiction.* The fact that the tort is com- 
 mitted within the body of a county does not oust the admiralty of 
 jurisdiction.^ If a tortious act originates on land, and is not a 
 
 ' The Commerce, 1 Black, 574. 
 
 ' In Thomas v. Lane, 2 Sumner, l,this jurisdiction in civil cases seems to be 
 confined, by Mr. Justice Story, to acts done on the high seas, or on waters within 
 the ebb and flow of the tide. But under the decisions of our Supreme Court, the 
 rule of tide-waters no longer exists. See also ante, p. 165. 
 
 ' Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 209. 
 
 * The Plymouth, 3 Wallace, 20. Nelson, J., said : " It will be observed that 
 the entire damage complained of by the libellants, as proceeding from the negli- 
 gence of the master and crew, and for which the owners of the vessel are sought 
 to be charged, occurred not on the water, but on the land. The origin of the 
 wrong was on the water, but the substance and consummation of the injury on 
 land." And in Ransom v. Mayo, 3 Blatchf. C. C. 70, where a contract was made 
 on land, between the owner of a vessel and a ship-builder, for the repair by the 
 latter in his ship-yard on the land, it was held that an action in personam would 
 not lie, in the admiralty, to recover for damage to the vessel caused by the negli- 
 gence of the ship-buiMer in hauling the vessel upon the ways to be repaired. 
 
 ^ Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 209. See also 
 ante, p. 163, n. 2.
 
 848 LAW AND JURISDICTION OF ADMIRALTY. [BOOK IL 
 
 perfected wrong until the vessel leaves the port, it is a continuous 
 act, and suit may be brought in the admiralty, ^ 
 
 The principal cases in which suits in admiralty have been 
 brought for torts are those of collision,^ those in which passengers 
 have sought for compensation for ill-treatment by the captain, and 
 similar actions by mariners against the officers of the vessel,^ and 
 those in which actions have been maintained for the abduction or 
 ill-treatment of minors. 
 
 It is held that passengers have a legal right, not merely to ship 
 room, and suitable and sufficient food, but to kind and proper 
 treatment, and a due regard to the courtesies and decencies of life ; 
 and if these are violated, the offence may be reached and damages 
 recovered by libel in admiralty.^ 
 
 In regard to cases of the third class, it seems to be quite certain 
 that a parent may maintain a libel for the abduction of his minor 
 child, against the master,^ or the ship-owner ; even though the 
 latter has no personal knowledge of the fact, the act of the master 
 being held to be within the scope of his authority, as agent for the 
 owners.^ But knowledge of the minority on the part of either the 
 master or owner would be essential^ 
 
 The rule of the common law, that the gist of the action consists 
 in the loss of the services, is followed, and it may be stated as a 
 general rule, that where an action per quod servitium amisit would 
 not lie at common law, no suit can be brought in admiralty.^ 
 
 I The Yankee, 1 McAU. 467. 
 « See Vol.1, p. 525. 
 
 • See ante, p. 89, n. 3. In Brown v. Overton, 1 Sprague, 462, a seaman broke 
 his legs while on a voyage. A suit was brought against the master for not putting 
 into St. Helena for surgical assistance, for want of proper care and attention 
 during the passage, and for neglect after arriving at the home port. The action 
 was maintained. 
 
 * Chamberlain v. Chandler, 3 Mason, 242 ; West v. Steamer Uncle Sam, 1 
 McAU. 505. In McGuire v. Steamship Golden Gate, 1 McAll. 104, a suit in 
 rem was maintained against the vessel for a personal assault on passengers by the 
 master. The judge, however, doubted whether the suit could properly be 
 brought. See also cases ante, Vol. I. p. 609. 
 
 » Steele v. Thatcher, Ware, 91. 
 
 * Sherwood i'. Hall, 3 Sumner, 127; Luscom v. Osgood, U. S. D. C. Mass., 7 
 Law Kep. 132 ; Walcott v. Wilcutt, Same Court, 1858 ; The Platina, Same Court, 
 21 Law Rep. 397. See ante, p. 58, n. 1. 
 
 ' Cutting V. Seabury, 1 Sprague, 522. 
 
 • See Steele v. Thatcher, Ware, 91 ; Plummer v. AVebb, Ware, 75.
 
 CH. XII.] LAW OF ADMIRALTY IN CASES OF TORT. 349 
 
 111 one case, where a minor child was shipped with the consent 
 of his father on a certain voyage, and the libel brought by the 
 father alleged gross and cruel treatment of the child, to the injury 
 of his health, and his subsequent death, jurisdiction was sustained, 
 and the libel determined upon its merits.^ On an appeal,^ Story, 
 J., denied the jurisdiction of the circuit court over the case, mainly 
 because the libel sought compensation for positive or permissive 
 violation of an agreement for " good, careful, tender, and parental 
 usage," which, although in connection with services which were 
 to be performed upon the seas, were held to render the contract 
 one of so mixed a nature, that the admiralty could not take cog- 
 nizance of it. It has, however, always seemed to us that he 
 shrank, in this case, from the possibility of unduly extending the 
 bounds of admiralty jurisdiction, with more than necessary cau- 
 tion. 
 
 Actions have also been maintained for the wrongful conversion 
 of a whale upon the high seas.-^ In the whale fishery whales are 
 
 ^ Plummer v. Webb, Ware, 75. 
 
 2 Plummer v. Webb, 4 Mason, 380, 385. 
 
 ' Taber v. Jenny, 1 Sprague, 315. In Bowne v. Ashley, U. S. D. C. Mass., 
 Sept. 1865, Lotvell, J., a suit was brought for the conversion of a whale in the 
 Ochotsk Sea in July, 1858. It was held that the rule of damages was the value 
 of the whale at the time and place of the conversion ; but as there was no market 
 value there, the following rule was laid down : " We must ascertain, then, the value 
 of the oil and bone at some market, and that of New Bedford, adopted by the asses- 
 sor, and which is the controlling market of this country in this matter, may well be 
 taken as the standard. The sum to be ascertained, then, will be the value at New 
 Bedford, in July, 1858, of the oil and bone made or which might have been made 
 from this whale, less the necessary average expenses of cutting in and boiling, 
 freight, insurance, casks, and other proper charges ; and as the transaction is 
 assumed to be a cash transaction on the day of the conversion, less the interest on 
 the supposed outlay for the time of an average direct voyage home, to this 
 result is to be added interest from the day of the conversion. It has been strongly 
 urged that the expenses of cutting in and boiling, and most of the other charges 
 and expenses above enumerated should not be deducted ; that the libellaut's ves- 
 sel and men were ready to perform the labor and transport the property ; that 
 they took no whale immediately after this time, and came home not wholly full ; 
 in short, that they did not request such services to be done, and were not bene- 
 fited by them. But we must have a general rule, and if we admit the consid- 
 eration of the actual damage to the plaintiff under the peculiar circumstances of 
 this case, we must open the case to a vast deal of evidence of a very uncertain 
 nature." Judge Lowell also said : " The case of Taber v. Jenny, 1 Sprague, 315,
 
 350 LAW AND JURISDICTION OF ADMIRALTY. [BOOK II. 
 
 often captured and left for a time with some indicia of ownership, 
 such as what is called a waif, which is generally a pole or oar with 
 a signal on it, and they are often anchored. In all such cases the 
 right of property remains in the original takers.^ 
 
 Actions for personal torts do not survive the death of the person 
 
 appears to adopt a somewhat different rule of damages. But that case was 
 reported by the assessor, and argued by the counsel, upon the basis of the home 
 price of the cargo that actually arrived in the libellant's vessel ; and the point 
 raised was, whether the actual charges should be deducted ; and I do not believe 
 the court intended to decide any question not fairly before it. 1 cannot say but 
 that I should fully concur in the result of that case upon the theory upon which it 
 appears to have been argued ; nor can I say that there may not have been some 
 reason peculiar to that case for assuming the time for the ascertainment of the 
 damages to be that of the vessel's arrival. To that extent there appears to have 
 been no dispute among the counsel, so that the questions were not presented in 
 their present form. In this case, however, I cannot resist the conclusions to which 
 I have come, though I should hold them with great distrust if I believed they were 
 opposed to a dehberate opinion of Judge Sprague." The rule of damages laid 
 down in Bowne v. Ashley was followed in Bartlett v. Budd, U. S. D. C. Mass., 
 Lowell, J. 
 
 * Taber v. Jenny, 1 Sprague, 315. In Bartlett v. Budd, U. S. D. C. Mass., 
 Lowell, J., a whale was captured in the Ochotsk Sea in the afternoon. It was 
 anchored in five fathoms of water, and a paddle and sail put on it as a waif. The 
 takers then went on shore. The next day the whale was found by another vessel 
 and cut in and boiled down. A suit was brought for a conversion, a demand hav- 
 ing been first made. The defence was that the whale was found adrift, the 
 anchor not holding, and the cable was coiled round the whale, and that there 
 were no irons or waif in the fish. It was held that if this evidence were true the 
 libellants were entitled to recover. The defendants also set up a usage that a 
 whale found adrift in the ocean is the property of the finder, unless the first taker 
 appeared and claimed it before it was cut in. The libellants contended that the 
 usage did not apply to whales found in bays and harbors at all, and only applied 
 to those found off soundings when there were no marks of appropriation except 
 weapons or irons. Judge Lowell, without deciding whether the usage applied 
 except in bays and harbors, said : " I find the preponderance of evidence to be 
 very strong in favor of the libellants' version of the usage, in the matter of the 
 definite marks by an anchor or other sure sign of actual capture. And if it were 
 not so, there would be great difficulty in upholding a custom that should take the 
 property of A and give it to B under so very short and uncertain a substitute for 
 the statute of limitations, and one so open to fraud and deceit. I do not, how* 
 ever, here pass upon the limits within which usage may reasonably vary, whether 
 upon the one side or the other, the strict law of the pursuit and capture of ani- 
 mals of this kind, but decide upon the evidence that the whale was the property 
 of the libellants."
 
 CH. Xn.] " LAW OF ADMIRALTY m CASES OF TORT. 351 
 
 injured, even though a right of action is given by a statute of the 
 State in the district in which the court is held.^ 
 
 For the redress of torts, admiralty may proceed in personam, 
 and, when the cause of the injury is the subject of a maritime 
 lien, it may also proceed in rem; but it has been held that this 
 lien can only exist upon movable things engaged in navigation, 
 or upon things which are the subjects of commerce, and that if a 
 vessel is injured by running against a bridge which crosses a navi- 
 gable stream, an action in rem will not lie against the bridge.^ 
 And it has also been held that if a bridge is injured by a vessel 
 running against it, a proceeding in rem will not lie against the 
 vessel by the owners of the bridge.^ 
 
 ' Crapo V. Allen, 1 Sprague, 184. That actions for the death of another do 
 not survive at common law was assumed in this case, and the only question was 
 whether the statute of the State was applicable. In the subsequent case of Cut- 
 ting V. Seabury, 1 Sprague, 522, a full review of the authorities was made, and 
 Sprague, J., said he could not consider it as settled that no action could be main- 
 tained for the death of a human being. The point was not decided. 
 
 "' The Rock Island Bridge, 6 Wallace, 213. 
 The Bark Savannah, U. S. D. C. Penn., Cadwallader, J., June, 1868.
 
 BOOK III. 
 
 ON THE PRACTICE OF ADMIRALTY. 
 
 23
 
 A TREATISE 
 
 LAW OF SHIPPIIG AND ADMIRALTY. 
 
 INTRODUCTORY. 
 
 The leading principles and forms of admiralty jurisdiction come 
 down from a very remote antiquity. The commerce of Rome was 
 important, at the time when the civil law was attaining its highest 
 excellence ; and the rules and principles adopted for the legal 
 regulation of this commerce were founded upon a clear perception 
 and a wise consideration of the reason and justice of every case. 
 They have survived, therefore, the Roman dominion, and their 
 influence, not to say their authority, extends over continents un- 
 known to Rome ; and more in reference to this than any part 
 of her law is the old saying true, that she still governs the world, 
 but now haud ratione imperii, sed imperio rationis. The civil law, 
 under that name, prevails on the continent of Europe, particularly 
 in its maritime law ; and during the many ages which have elapsed 
 since that law was in force, propria vigor e, important modifications 
 have been introduced, as, for example, the rule that freight is the 
 mother of wages, and therefore if that is not earned, they are not, 
 of which rule there is no trace in the Roman civil law.^ And now 
 when we speak of the civil law in reference to this subject, we 
 must be understood to refer to the European, or modern civil law ; 
 and in this way, too, we must interpret our statute of 1789, c. 
 21, § 2,2 which provides that " the forms and modes of proceeding 
 in causes of equity, and of admiralty and maritime jurisdiction 
 shall be according to the course of the civil law," which provision, 
 three years afterwards, was altered by the statute of 1792, c. 36, 
 
 1 The Dawn, Daveis, 121, 133, per Ware, J. 
 « 1 U. S. Stats, at Large, 93.
 
 356 ADMIRALTY PRACTICE. [BOOK III. 
 
 § 2,1 which requires the same forms and modes of proceeding, etc., 
 to be " according to the principles, rales, and usages which belong 
 to courts of equity, and to courts of admiralty respectively, as con- 
 tradistinguished from courts of common law ; except so far as 
 may have been provided for by the act to establish the judicial 
 courts of the United States, subject, however, to such alterations 
 and additions as the said courts respectively shall in their discre- 
 tion deem expedient, or to such regulations as the Supreme Court 
 of the United States shall think proper from time to time by 
 rule to prescribe to any circuit or district court concerning the 
 same." 
 
 The forms and practice, and indeed the principles of jurispru- 
 dence, are very similar in all the courts of admiralty in the world. 
 They are courts of the civil law, of the law of nations, and in Eng- 
 land to a certain extent, and in this country still more, although 
 not entirely so in either country ,2 courts of equity. And in this 
 country the forms and whole procedure are simpler, more direct 
 and summary than elsewhere. 
 
 In construing the act of 1792, it is to be remembered that six- 
 teen years had elapsed since the independence of the country had 
 been declared, and that, during that time, admiralty jurisdiction 
 had been administered in our courts, and it would follow that if 
 the English mode of practice had been in that time changed by 
 the practice in this country, the latter should prevail.^ 
 
 The power given by the act of 1792 to the Supreme Court of 
 the United States to establish rules, has never been exercised ; but 
 under a subsequent act^ a body of rules has been framed, which, 
 
 * 1 U. S. Stats, at Large, 276. 
 ' See ante, p. 344. 
 
 ' Manro v. Almeida, 10 Wheat. 473. 
 
 * Act of 1842, c. 188, 5 U. S. Stats, at Large, 518. As this statute is of great 
 importance in determining how far the rules of the Supreme Court are of binding 
 effect, we cite it here. " The Supreme Court shall have full power and authority, 
 from time to time, to prescribe, and regulate and alter, the forms of writs and 
 other process to be used and issued in the district and circuit courts of the United 
 States, and the forms and modes of framing and filing libels, bills, answers, and 
 other proceedings and pleadings, in suits at common law or in admiralty, and in 
 equity pending in the said courts ; and also the forms and modes of taking and 
 obtaining evidence, and of obtaining discovery ; and generally the forms and 
 modes of proceeding to obtain relief, and the forms and modes of drawing up, 
 entering, and enrolling decrees, and the forms and modes of proceeding before
 
 INTRODUCTORY. 357 
 
 SO far as they are authorized by the statute,^ are of binding effect.^ 
 These rules we give in the Appendix,^ and we shall have frequent 
 occasion to refer to them. 
 
 By the Forty-Sixth of these Rules the district and circuit courts 
 are to regulate the practice of the said courts respectively, in all 
 cases not provided for by the rules, in such manner as they shall 
 deem most expedient for the due administration of justice in suits 
 in admiralty. 
 
 trustees appointed by the court ; and generally to regulate the whole practice of 
 the said courts, so as to prevent delays, and to promote brevity and succinctness 
 in all pleadings and proceedings therein, and to abolish all unnecessary costs and 
 expenses in any suits therein." 
 
 ^ In The Kentucky, 4 Blatchf. C. C. 450, Nelson, J., speaking of the act of 
 1842, said : "I think it proper to say, that the general understanding of that act 
 has been, that the court had no power to repeal or modify any regulation of Con- 
 gress existing on the subjects there referred to." 
 
 ^ See The Steamer St. Lawrence, 1 Black, 522. In The Sloop Merchant, 
 Abbott, Adm. 7, Belts, J., said : " Although the question of who may be responsible 
 to a demand is one of general jurisprudence, yet the form and the arrangement of 
 process by which the obligation is to be enforced, is matter of practice. And 
 according to the provisions of the act of Congress of August 23, 1842, the Supreme 
 Court is vested with authoritj' to impose on inferior courts an absolute law in this 
 respect ; and the court under that power having proceeded to regulate this sub- 
 ject-matter, their regulation must be regarded as complete and exclusive, inhibit- 
 ing what it does not allow as well as governing what is fixed by positive appoint- 
 ment." In Dean v. Bates, 2 Woodb. & M. 87, 92, Woodbury, J., said: "That 
 other objection is the misjoinder of the vessel and the owners in one and the same 
 libel. This involves a proceeding both in personam and in rem, in the same case, 
 and contravenes the settled rules in admiralty proceedings. See Rules 14 - 17." 
 In Scott V. The Young America, 1 Newb. Adm. 107, speaking of the 29th rule, WU- 
 kins, J., said : " This rule has the force of a statute, having been established for the 
 government of the court by the act of Congress of August, 1842." In Ward v. The 
 Ogdensburgh, 1 Newb. Adm. 139, 156, it was held that since the passage of the 
 15th rule a suit in rem and one in personaiii cannot be joined in a case of collision. 
 In Gates v. Johnson, U. S. C. C. Ohio, 21 Law Rep. 279, derelict property picked 
 up by the libellants was deposited with the defendants, who delivered It over to 
 third parties. It was contended that the suit would not lie under the 19th Admi- 
 ralty Rule. McLean, J., said : " The rules in admiralty, prescribing proceedings in 
 certain cases, were not to be regarded as restrictive, but only as enumerative of 
 the more common remedies, leaving such other and further proceedings to be had 
 by the courts as might be found necessary, in any case, to give effect to their 
 jurisdiction." 
 
 ' These rules are published by order of court in 3 Howard's Reports. Addi- 
 tional rules may be found in the 10th, 13th, 17th, and 21st of Howard, and in the 
 1st of Black.
 
 358 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER I. 
 
 OF PROCTORS. 
 
 The word Proctor signifies much the same as attorney at com- 
 mon law, and is derived from Procurator.^ In some districts of 
 this country, proctors attend to the whole management of the 
 cause from the beginning. In others, they conduct the case out 
 of court ; while the examination of witnesses in court, the argu- 
 ments, motions, and other incidents of the trial are attended to by 
 the advocate. The proctor being an officer of the court, is held to 
 the utmost good faitli.^ It is his duty to examine a case carefully 
 when it is presented to him, and he ought not, unless the claim is 
 in his apprehension just, or at least doubtful, to bring it before the 
 court, especially in the case of seamen's wages, where generally 
 no available responsibility for costs is incurred by the libellants.^ 
 
 It was formerly the practice in the admiralty for a proctor in 
 bringing a suit to exhibit a proxy, or a power of attorney, author- 
 izing him to commence and prosecute the suit.* At the present 
 day this is not customary, but the proctor is presumed to have the 
 authority to appear until such right is disputed. In England 
 there appears to be much looseness of practice on this point ; and 
 in one case a suit was commenced on behalf of the master, owners, 
 and crew of a vessel, and on judgment being given for the respond- 
 ent, the proctor for the libellant stated that he did not know who 
 his parties were, and the court consequently condemned him in 
 the costs of the suit.^ And in another case the proctor having 
 
 * In Jackson v. Steamboat Magnolia, 20 How. 296, 321, Mr. Justice Daniel, in 
 considering the dangers arising from an extension of the admiralty jurisdiction, 
 speaks of " some apt fomenfer of trouble, metamorphosed and magnified from a 
 country attorney into a proctor." The learned judge was perhaps unfortunate in 
 his acquaintance with proctors ; but we cannot accept the above as a definition of 
 this important officer of the courts of admiralty. 
 
 ' See The Earl Grey, 1 Spinks, 180. 
 
 * The Frederick, 1 Ilagg. Adm. 211, 222. 
 
 * See Clerke's Praxis, tit. 5, and additions, where it is said that a proctor is 
 constituted either by proxy or apud acta curiae. 
 
 * The Whilelmine, 1 W. Rob. 335.
 
 CH. I.] PROCTORS. 359 
 
 caused the production of irrelevant matter by reason of his unfair 
 representations, was obliged to pay the costs. ^ 
 
 A proctor may generally be considered sufficiently dominns litis, 
 to make an affidavit of any fact upon which to make a motion, 
 especially if the fact be peculiarly within his knowledge.^ And if 
 the case goes to trial before an answer is filed by the respondent, 
 the neglect being caused by his absence in good faith, his proctor 
 will generally be allowed to appear as amicus curice, and make any 
 suggestions, and present any proper evidence to the court.^ 
 
 Proctors, it is said, should always be present when a suit is 
 settled or compromised.'^ But it has been held that a proctor can- 
 not release or compromise a claim without special authority. He 
 is, however, authorized to receive payment, and the amount so 
 paid is a discharge pro tanto.^ 
 
 A proctor does not so far stand in the place of his principal that 
 a monition may be served upon him in a different suit from that 
 in which he is retained, although it relates to the same subject- 
 matter.^ 
 
 After a suit is commenced, the respondent has not, as a general 
 rule, the right to settle the case without the knowledge of the 
 proctor of the libellant, and if he does so the settlement may be 
 inquired into by the court.'^ And where a procliein ami fraudu- 
 
 1 The Frederick, 1 Hagg. Adm. 211. See also The Sarah Jane, Blatchf. & H. 
 Adm. 401. 
 
 ^ The Brig Harriet, Olcott, Adm. 222. A motion was made that the libellant 
 should file additional security for costs. It was opposed on the ground that the 
 affidavit on which the motion was based was made by the proctor, and not by the 
 claimant. The objection was overruled. 
 
 5 The David Pratt, Ware, 495. 
 
 * The Frederick, 1 Hagg. Adm. 211, 220. 
 
 ^ Bates V. Seabury, 1 Sprague, 433. 
 
 ^ Nichols v. Tremlett, 1 Sprague, 361. 
 
 ' The Brig Planet, 1 Sprague, 11. The libellant in this case was a boy who 
 shipped at St. John's, N. B., on a certain voyage, but on the vessel's deviating 
 and coming to Boston, demanded his wages and was refused. He then applied 
 to the British consul, who declined to aid him, and then to a proctor of the court. 
 After suit was commenced the master of the vessel sent for the boy, and paid him 
 his wages, but allowed him no costs. The coiirt held that he was clearly entitled 
 to his costs, and the settlement was set aside. See also IMcDonald v. The Ship 
 Cabot, 1 Newb. Adm. 348 ; Brooks v. Snell, 1 Sprague, 48 ; Angell v. Bennett, 
 id. 85 ; Collins v. Nickerson, id. 126 ; The Sarah Jane, Blatchf. & H. Adm. 401 ; 
 The Victory, id. 443.
 
 360 ADMIRALTY PRACTICE. [BOOK III. 
 
 lently settled a suit without the knowledge of the proctor for the 
 libellant, the court set it aside.^ Nor, after the decision of the 
 court, has the owner of a vessel a right to pay the wages to the 
 seamen, but the amount should be paid to the proctor, who has a 
 lien on them for his costs.^ 
 
 A distinction has been taken between a suit for wages and one 
 for a tort, and it has been said that as an admiralty court affords 
 no peculiar remedy in actions of tort, a seaman is not under any 
 peculiar protection, nor does he enjoy any special privilege, so that 
 the case stands as to costs as if brought at common law ; and that 
 an adjustment by mutual agreement between the parties, of an 
 action of tort, no fraud being shown, bars the proctor from pro- 
 ceeding for his costs.^ But the correctness of this may perhaps be 
 doubted.* A proctor, intending to proceed for costs only, must 
 give notice of his intention to the opposing party .^ It has been 
 held that a garnishee order of a common-law court cannot be 
 i-eviewed by a court of admiralty, and that the payment, under a 
 garnishee order, of costs pronounced due to a successful party by 
 decree of the court, is satisfaction of the decree, even against the 
 proctor of the party who claims his lien.^ If, however, the money 
 is in the registry of the court, the proctor's lien will be first satis- 
 fied.'^ 
 
 1 The Etna, Ware, 462. 
 
 - The Araniinta, Swabey, Adm. 81. 
 
 ^ Peterson v. Watson, Blatchf. & H. Adm. 487. 
 
 * See Angell i'. Bennett, 1 Sprague, 85. In Purcell v. Lincoln, 1 Sprague, 
 230, a suit was brought against the mate of a vessel for a tort. After service of 
 the process, the parties made a settlement, and the libellant gave to the re- 
 spondent a written discharge of both damage and costs. At the time of the set- 
 tlement the respondent was confined to his house by sickness, and the libellant 
 represented to him that he had fully paid his proctor. The respondent had not 
 seen or consulted counsel, and there was no evidence that he had received any 
 notice of the claim, or of the intention to institute a suit before the service of pro- 
 cess. On all these facts the libel was dismissed without costs. Stress appears to 
 have been laid on the fact that the proctor should have given notice before bring- 
 ing the suit, as it appeared that the respondent being sick could not escape, and 
 that the settlement was not collusive, and as in an action of tort the damages are 
 indeterminate, it did not appear that the settlement was not a fair one. See also 
 Brooks V. Snell, 1 Sprague, 48. 
 
 ' The Sarah Jane, Blatchf & H. Adm. 401. 
 
 '' The Olive, Swabey, Adm. 423. 
 
 ' The Jeff Davis, Law Rep. 2 Adm. 1.
 
 CH. II.] TIME WHEN A SUIT MAY BE BROUGHT. 361 
 
 CHAPTER II. 
 
 OF A SUIT IN ADMIRALTY. 
 
 SECTION I. 
 
 OF THE TIME WHEN A SUIT MAY BE BROUGHT, 
 
 In respect to the time in which a suit may be brought, but little 
 need be said. It lias been decided that neither the Statute of 
 Anne,^ limiting suits in the English admiralty, nor the statute of 
 limitations of any of our States,^ is of any force in our admiralty 
 courts. Although it is said that courts of admiralty govern them- 
 selves in the maintenance of suits by the analogies of the common- 
 law limitations, and are not inclined to depart from them unless 
 under very strong circumstances;^ at the same time, there is an 
 universal maxim, " vigilantihus non dormientibus subveniunt leges " 
 and admiralty will not enforce stale demands.* And even the 
 most favored lien, that of a seaman for his wages, may be lost by a 
 delay to enforce it.^ Whether a claim is to be considered stale or 
 not must depend upon the peculiar circumstances of each particu- 
 lar case, and it is difficult to lay down any general rule. It is, 
 however, we think, evident that a party may have a suit in per- 
 sonam when he cannot sue in rem; because, in this latter case, 
 the rights of a bo7id fide purchaser may intervene. But even 
 where the suit is in personam, the defendants may be prejudiced by 
 the delay ; and in one case where a suit was brought by one co- 
 owner against the others for supplies furnished the vessel more 
 
 1 Willard v. Dorr, 3 Mason, 91, 161. 
 
 2 Brown v. Jones, 2 Gallis. 477. 
 
 5 The Brig Sarah Ann, 2 Sumner, 206, 212. See also The Platina, U. S. D. C. 
 Mass., 1858, 21 Law Rep. 397, 399, per Sprague, J.; Hall v. Hudson, 2 Sprague, 
 65. 
 
 ' The Anne, 5 Rob. Adm. 100. The Brig Sarah Ann, 2 Sumner, 206, 212. 
 
 * See cases in notes, infra.
 
 362 ADMIRALTY PRACTICE. [BOOK III. 
 
 than six years before, and the owners had paid their proportion to 
 the agent of the vessel, the suit was dismissed, altliough within the 
 six years a bill in equity was brought for an account in a State 
 court, which bill had been discontinued.^ If the vessel remains in 
 the hands of the owners who were in possession at the time the 
 debt accrued, an action may be brought after a considerable lapse 
 of time.^ But if the vessel has been sold to a bond fide purchaser, 
 the suit should be brought as soon as an opportunity is presented ; 
 and if it is not, a delay is fatal.^ A colorable sale is, of course, of 
 
 * Hall V. Hudson, 2 Sprague, 65. 
 
 - Piebl V. Balchen, Olcott, Adm. 24. In the case of The Sloop Canton, 1 
 Sprague, 437, a delay of two' years was held not to prevent the enforcement of 
 the lien, where the ownership of the vessel remained unchanged, although, as it 
 would seem from the report of the case, the seamen had the opportunity to libel 
 the vessel at any time within the two years. In The Eastern Star, Ware, 185, 
 the vessel was sold before the wages were earned, and made but one voyage 
 afterwards before she was libelled. It was held that the lien was not lost. See 
 cases ante, Vol. I. p. 164, n. 2; p. 531, n. 3 ; and The Brig Sarah Ann, 2 Sum- 
 ner, 206. 
 
 ^ In Packard v. Sloop Louisa, 2 AVoodb. & M., 48, 55, a delay of three years, 
 the vessel having been sold, was held to be fatal. If the seamen are present 
 whon the sale takes place, and make no objection to it, and do not inform the 
 purchaser of their claims, their lien is gone. Trump v. Ship Thomas, Bee, 86 ; 
 Josline v. Scow Bolivar, Olcott, Adm. 474. In the case of The Admii-al, U. S. 
 D. C. Mass., 18 Law Rep. 91, a steamer which plied regularly between St. 
 John, N. B., and Boston, was libelled for a collision which had taken place twenty 
 months before. There were agents of the damaged vessel in Boston during 
 that time. The vessel in the mean time had been sold to an incorporated com- 
 pany, some of the members of which were the former owners of the vessel. It 
 ■was held that this fact did not constitute notice to the corporation, and that it was 
 no defence that this suit had been delayed to await the result of another suit 
 pending between the libellants and the former owners of the Admiral. The libel 
 was therefore dismissed. See also The Lillie Mills, 1 Sprague, 307 ; Leland v. 
 The Medora, 2 Woodb. & M. 92, 99; The Utility, Blatchf & H. Adm. 218; 
 The General Jackson, 1 Sprague, 554 ; Stillman v. The Buckeye State, 1 Newb. 
 Adm. 111. In The Ship Mary, 1 Paine, C. C. 180, the seamen were shipped on 
 a voyage from New York to New Orleans, and back to New York. The voyage 
 was broken up at New Orleans, and the seamen were discharged there. The 
 vessel was sold In October, and remained at the same port till the following May, 
 when her owner sent her on a voyage to Liverpool and thence to New York, 
 where she was at once libelled by the seamen. It was held that, there being no 
 laches on tlie part of the seamen, the lien was not lost. In another suit against 
 the Scow Bolivar, mentioned above, it appeared that the libellant was not present 
 at the sale, that the purchaser took the vessel at once out of the State, and that
 
 CH. II.] TIME WHEN A SUIT MAY BE BROUGHT. 363 
 
 110 effect.^ Where a libel against the cargo of a vessel was filed 
 to recover the balance due under a charter-party, before the cargo 
 had been discharged from the vessel, it was held that a previous 
 agreement by the claimant that such a libel should be commenced, 
 and his assisting the officer in arresting the goods, and afterwards 
 obtaining them, by giving satisfaction without objection, was a 
 waiver of any right which he might have to object to the time 
 of instituting the suit as premature.^ 
 
 When the respondent intends to rely on the objection of the 
 staleness of the claim, or any other defence that does not go to the 
 merits, it should be propounded by a formal plea or by a distinct 
 allegation in the answer.^ And it has been held that the burden 
 of proof to make out such laches as would operate to forfeit the 
 lien is on the claimant.* 
 
 the libellant left his demand with his proctor with directions to have the vessel 
 arrested as soon as she returned to the State. This being done, the lien was held 
 to continue. Shook v. Scow Bolivar, Olcott, Adm. 480. See also Sheppard v. 
 Taylor, 5 Pet. 675 ; Reeder v. Steamship George's Creek, U. S. D. C. Maryland, 
 3 Am. Law Reg., 232 ; Cole v. The Atlantic, Crabbe, 440 ; The Sch. Marion, 1 
 Story, 68, 72 ; The Barque Chusan, 2 id. 455 ; Anderson v. The Sloop Solon, 
 Crabbe, 17 ; Freeman v. Sch. Jane, id. 178. In The Eliza Jane, 1 Sprague, 152, 
 the vessel was owned in St. John, New Brunswick, the supplies were furnished in 
 Boston, some in January, and the residue In September of the same year. The 
 vessel left Boston after the supplies were furnished in January, but was there in 
 July. The vessel was sold to a honCi fide purchaser in October. Held, that the 
 claim for the supplies furnished in January was lost by the delay to enforce it, 
 but that the claim for supplies furnished in September could be enforced. 
 1 The Paul Boggs, 1 Sprague, 369. 
 
 * The Salem's Cargo, 1 Sprague, 389. In this case Sprague^ J., also said : " If 
 there had been no waiver, it would have been in the power of the court, by giving 
 costs or otherwise, to give to the claimant a complete indemnity for all the loss 
 and inconvenience he can sustain by the premature commencement of the suit. 
 And it would not have been necessary to dismiss the libel, which, as the goods 
 have now gone beyond the reach of process, would defeat the remedy against 
 them. It is not the practice of courts of admiralty to favor formal or technical 
 objections, to the sacrifice of substantial justice." 
 
 ^ The Platina, U. S. D. C, Mass., 1858, 21 Law Rep. 397. 
 
 ♦ The Prospect, 3 Blatchf. C. C. 526.
 
 864 ADMIRALTY PRACTICE. [BOOK III. 
 
 SECTION II. 
 
 OF A SUIT FOR SEAMEN's WAGES. 
 
 In suits for seamen's wages, there are some peculiarities of 
 practice which should be noticed. The seamen are by statute ^ 
 entitled to receive from the master of the vessel to which they 
 belong, one third part of the wages which shall be due at every 
 port where such vessel shall unlade and deliver her cargo before 
 the voyage is ended, unless the contrary be expressly stipulated in 
 tlie contract ; and, as soon as the voyage is ended and the cargo 
 or ballast fnlly discharged at the last port of delivery, the seamen 
 are entitled to their wages, and if the wages are not paid within 
 ten days thereafter, or if any dispute shall arise between the 
 master and seamen touching the wages,^ the judge of the district 
 
 * Act of 1790, c. 29, § 6, 1 U. S. Stats, at Large, 133. We give this statute in 
 the Appendix. 
 
 " It is said by Mr. Dunlap, in his work on Admiralty Practice, p. 100, that this 
 clause relative to a dispute, is not construed by the district court of Massachu- 
 setts as authorizing, in case of a dispute, a suit in admiralty before the expiration 
 of the ten days, the clause being regarded as either a dead letter, which cannot be 
 carried into eifect without violating the spirit of the law, or as merely providing 
 for a dispute respecting the wages, as well as for a neglect of payment, after the 
 expiration of the ten days. If this be the correct construction of the statute, it 
 exposes the seamen to great hardships, for it is usual for the crew, as soon as they are 
 discharged and paid off, which is generally done as soon as they are discharged, to 
 scatter in different directions, so that it is fret^uently impossible for the seamen 
 with whom the master has had a controversy to procure any evidence whatever 
 of the matters about which the controversy exists. To consider the clause a dead 
 letter is opposed to every principle of construction, and to construe it as giving 
 the right to have the preliminary hearing, in case of a dispute, after the expira- 
 tion of the ten days, seems to us absurd. To hold that it gives the right of action after 
 the expiration of the ten days does not help the matter, for the right would exist with- 
 out tlie clause, and we must either hold that it has no effect whatever, or else that it 
 means that, in case of a dispute concerning the amount of wages, the right to a 
 preliminary hearing accrues at once. This latter view seems to be adopted by 
 the court of common pleas in Massachusetts, Chaffin's Case, Essex, Sept. T. 1825, 
 Dunlap's Adm. Practice, 101, and in the Southern District of New York. See a 
 diclum to this effect by Bells, J., in The Schooner Eagle, Olcott, Adm. 232, 237. 
 It was held, in this case, that where the only defensive allegation was that the 
 wages were not due because the contract was not fulfilled at the time of action 
 brought, the contestation of the point did not fall within the provision, which was
 
 CH. II.] SEAMEN'S WAGES. 365 
 
 where the vessel is, or if his residence be more than three miles 
 from the place where the vessel is, then any judge or justice of 
 the peace may summon the master to appear and show cause why 
 process should not issue against the vessel.^ And if the master 
 neglects to appear, or appearing, does not show that the wages are 
 paid, or otherwise satisfied or forfeited, and if the matter in 
 dispute is not forthwith settled, the judge shall certify to the clerk 
 of the district that there is sufficient cause to issue admiralty 
 process, and it shall thereupon issue. And, by a subsequent act, 
 the same power which by virtue of this act is conferred upon any 
 judge or justice of the peace is given to a United States commis- 
 sioner.2 
 
 Immediate admiralty process is permitted in case of a dispute,^ 
 if the vessel has left the final port of delivery before payment of 
 the wages, or is about to go to sea before the expiration of the ten 
 
 said to relate " to the proceedings of the seaman after his contract is performed 
 and his right to wages has become perfected." See also Betts' Adm. Practice, 
 62. The same construction is now given to the statute in the Massachusetts dis- 
 trict. The Ship Wm. Jarvis, 1 Sprague, 485. But a mere declaration by the 
 owner that he would not pay until after the ten days does not amount to a dis- 
 pute. The Commerce, 1 Sprague, 34. 
 
 ' In Kief v. The Steamboat London, I Newb. Adm. 6, it was held that the 
 certificate of the justice of the peace or commissioner under the subsequent 
 statute, must state the residence of the judge of the district, and that it was more 
 than three miles from the place, or that the judge was absent from his place of 
 residence. 
 
 " Act of 1842, c. 188, 5 U. S. Stats, at Large, 516. In The Sch. Eagle, Olcott, 
 Adm. 232, the commissioner under this act granted a certificate of probable cause 
 for process of attachment against the vessel, and the case came before the district 
 court on appeal. Beits, J., said : "The competency of the. court to entertain an 
 appeal from proceedings before a commissioner has not been made a question by 
 either party. It is exceedingly doubtful at best whether the court has any juris- 
 diction of that kind ; but an order to stay proceedings may be made, or the sub- 
 ject may be deemed originally before me ; and as all the proofs have been pre- 
 sented and acted upon by both parties, without exception to the appeal, I am dis- 
 posed to consider and determine the case the same as if the petition had been 
 presented here in the first instance." It seems, where original shipping articles 
 are proved before a commissioner, and redelivered to the vessel, which thereupon 
 pursues its voyage, that a certified copy of the articles is competent evidence upon 
 the hearing in court. Henry v. Curry, Abbott, Adm. 433. 
 
 ' In The Ship Wm. Jarvis, 1 Sprague, 485, it was held that in case of a dispute 
 the seaman might have immediate admiralty process against the vessel, and that 
 a previous summons to the master was not necessary.
 
 866 ADMIRALTY PRACTICE. [BOOK III. 
 
 days.^ But unless the case falls within one of the exceptions 
 pointed out, the right of action does not accrue until ten days 
 after the actual discharge, or after the discharge of cargo might 
 have been and should have been made.^ 
 
 It has been said that fifteen days would be a proper allowance 
 of time.^ At all events, the owner would not be permitted to 
 defeat the seamen's claims or suits in rem, by a wilful and unneces- 
 sary delay in the discharge of cargo. And the act of 1790 reserves 
 whatever rights the seamen have of proceeding at common law, 
 for their wages. It has been doubted whether the statute did not 
 permit the ten days to run from the end of the voyage, intending 
 them to be the days of discharge ; ^ but we think that this con- 
 struction cannot be maintained. If the seamen be discharged by 
 the owner or master, then, undoubtedly, the ten days begin to run 
 
 ' The Cypress, Blatchf. & H. Adm. 83. In The Trial, Blatchf. & H. Adm. 94, 
 it was held that the seamen are not bound to prove positively that the vessel is 
 about to proceed to sea, but all that is required of them is to show a reasonable 
 ground of belief that the vessel is about to jiroceed to sea, and this "may be gath- 
 ered from concomitant circumstances, as well as direct proofs." In both of these 
 cases, the process was by suit in admiralty, and not in the mode pointed out by 
 the statute. It is said, however, in the northern district of New York, to be the 
 custom to require the summons and certificate where the vessel is about to pro- 
 ceed to sea, but it is doubted whether there is any necessity for this, when the 
 vessel has actually gone to sea. 2 Conkling's Adm. 2d ed. 52. 
 
 - In Hastings v. Ship Happy Eeturn, 1 Pet. Adm. 253, Judge Peters doubted 
 whether seamen were obliged to remain and unload the vessel, on account 
 of the general custom which prevails in this country to have this work performed 
 by stevedores. And in The Mary, Ware, 454, it is said that the usage of the 
 port must determine whether such an obligation exists. But in The Sch. Eagle, 
 Oleott, Adm. 232, 2S5, Belts, J., said: "Without the aid of an e.\press stipulation, 
 a seaman cannot, accordingly, sue for wages earned on a foreign voyage, until the 
 full completion of the voyage, by the unlading of the cargo or ballast as afore- 
 said. 
 
 « In Holmes v. Bradshaw, U. S. D. C. Mass., 1822, cited in Abbott on Ship- 
 ping, 635, note. Judge Davis is reported to have held that if the crew are 
 retained to unlade the vessel, fifteen working days might be considered a proper 
 time for the discharge of the cargo, by analogy to the Collection Act of 1799, and 
 that the ten days then began to run. In Edwards v. Ship Susan, 1 Pet. Adm. 
 1G5, fifteen days were also allowed; and in Thompson v. Ship Philadelphia, 1 
 Pet. Adm. 210, it appearing that more than fifteen days were necessary, a longer 
 time was allowed, there having been no unnecessary delay. See also The Martha, 
 Blatchf. & H. Adm. 151 ; Granon v. Ilartshorne, Blatchf. & H. Adm. 454. 
 
 * See Edwards v. The Ship Susan, 1 Pet. Adm. 165.
 
 CH. II.] SEAMEN'S WAGES. 367 
 
 from the time of the discharge. ^ Nor does the statute prohibit the 
 filing of a Hbel before tlie ten days have expired, but only the 
 issuing of process.^ And it has been held that if the seamen are 
 discharged, the right of action commences at once.^ 
 
 The provisions of the statute apply only to proceedings in rem, 
 and not to suits in personam, and a seaman may therefore bring 
 an action against the master or owners, as soon as the period of 
 his service is completed.* 
 
 * The Mary, Ware, 454 ; Holmes v. Bradshaw, U. S. D. C. Mass., 1822, cited 
 in Abbott on Shipping, 635, note, cited in Dunlap's Adm. Practice, p. 100, as 
 decided December Term, 1823. It was held in this latter case that the day of 
 discharge was not to be included in the ten days. The most reasonable construc- 
 tion, we think, is put upon these words : " as soon as the voyage is ended, and the 
 cargo or ballast be fully discharged," in the case of The Mary, supra. It was 
 shown that the contract of the seamen might expire as soon as the vessel was 
 moored in safety, or when the cargo was discharged, and the right of the seamen 
 to their wages depended on which of these times was to be taken, the ten days 
 running from one or the other, according to the contract. The libellant must, 
 however, prove the fact of the discharge. In the case of The Sch. Eagle, Olcott, 
 Adm. 232, 236, the libellant contended that he had done this, — first, by his own 
 affidavit ; secondly, by implication or presumption, inasmuch as the crew were 
 not required to unload the cargo, it being done by stevedores, and third, that the 
 master had not denied on oath the allegations sworn to by the libellant. The 
 court held that although the affidavit might be sufficient " to authorize supporting 
 proofs in the first instance, or to furnish ground for an order against parties 
 omitting to appear or show cause," yet it was not evidence in a suit in court, espe- 
 cially when contradicted by disinterested witnesses ; and it was held that the 
 other grounds taken were not sufficient to prove a discharge. 
 
 ^ The Mary, Ware, 454 ; Francis v. Bassett, 1 Sprague, 16. See The Martha, 
 Blatchf. & H. Adm. 151. In Granon v. Hartshorne, Blatchf. & H. Adm. 454, it 
 was held that where an action is brought prematurely, but becomes perfected 
 before the stipulations and answer of the respondent are filed, and the answer 
 when filed admits a right of action in the libellant, the court need not dismiss the 
 libel, but will impose costs on the libellant if the suit is vindictive or unreasonably 
 prosecuted. 
 
 * The Cabot, Olcott, Adm. 150; The Cadmus, Blatchf & H. Adm. 147; The 
 David Faust, 1 Bened. Adm. 187. See also The Cypress, Blatchf & H. Adm. 
 83. 
 
 * Freeman v. Baker, Blatchf. & H. Adm. 372. The rule is stated to be other- 
 wise in the district court of Massachusetts by Mr. Dunlap, in his work on Admi- 
 ralty Practice, p. 100 ; but the doctrine of the text was sustained by that court in 
 February, 1846, in the case of Collins v. Nickerson, 1 Sprague, 126. See also 
 The Commerce, 1 Sprague, 34, 36 ; Chaffin's Case, Court of Common Pleas, Essex 
 County, Massachusetts, September Term, 1825, Dunlap's Adm. Practice, 101.
 
 368 ADMIRALTY PRACTICE. [BOOK III. 
 
 Although a subject-matter of defence is not set up in the pre- 
 liminary hearing before the commissioner or magistrate, it may be 
 taken advantage of, when the case comes before the court on its 
 merits.^ 
 
 We shall see, that all seamen having the like cause of complaint 
 against the same ship are required to be joined as complainants.^ 
 And if several libels are brought by them against the vessel, the 
 court would direct them to be consolidated. In some districts the 
 practice is for some of the seamen to commence an action by 
 the preliminary hearing above mentioned, and when process issues 
 against the ship, for the other seamen to intervene under the 
 Thirty-Fourth Admiralty Rule. Before this rule was passed, they 
 came in on petition, and, the vessel being under arrest, they had 
 the benefit of the attachment without the preliminary examina- 
 tion. 
 
 It is usual to annex to the libel, in a suit for wages, an account 
 stating the time of service, the rate and amount of wages, with a 
 credit for the amount advanced during the voyage. But this 
 account is no part of the libel, nor is it necessary that any such 
 account should be annexed to it. It is sufficient if the libellant 
 states the contract, and avers the service with proper certainty, 
 and that there is a balance of wages remaining due. It is not 
 absolutely necessary to aver that any precise balance is due.^ 
 
 SECTION III. 
 OF THE MANNER OF BEGINNING THE SUIT. 
 
 In the manner of beginning a civil suit in admiralty, a change 
 has taken place somewhat similar to that by which at common law 
 the original writ was superseded, and the action began in practice 
 at what was once rather a late step in the mesne process. In 
 England, a suit begins in admiralty with a citation of the respond- 
 ent or defendant, who enters his appearance in court, and gives 
 security, and thereupon the jDlaintifF offers his libel. With us the 
 libel is the beginning, the earliest proceeding in a suit. 
 
 ' The Warrington, Blatchf. & H. Adm. 335, 341. 
 
 * Sec post, p. 372, n. 1. 
 
 ' Pratt V. Thomas, Ware, 427, 431.
 
 CH. II.] SEAMEN'S WAGES. 369 
 
 Ordinarily, the libel and all succeeding papers are filed in the 
 clerk's office,^ but the act of Congress relating to forfeiture, makes 
 it perhaps necessary that a libel of information should be filed in 
 court.^ 
 
 But, before we attempt to describe this instrument or process, 
 we would premise two remarks. One, that as there is no exact 
 and regular system of pleading in admiralty, acknowledged by all 
 our courts as authoritative, except so far as the same is regulated 
 by the rules of the Supreme Court, the courts of different districts 
 differ somewhat in their forms. Each court has generally, perhaps 
 always, its own system of rules, which are known to its bar, and 
 however binding upon its members, are not recognized as of posi- 
 tive authority in other districts. The second is, that all our 
 courts of admiralty agree in regarding substance as of more im- 
 portance than form, in the proceedings which come before it, and, 
 therefore, any process in admiralty is, in general if not always, 
 sufficient, which distinctly brings the substance of a case and the 
 actual parties before a proper court, in such a way as to permit 
 the questions of the case to be investigated, its merits ascertained, 
 and justice done.^ It is not probable, therefore, that any differ- 
 ence in the rules of practice could lead, often if ever, to more 
 important consequences, than that he who differs from one code of 
 forms by his observance of another, may meet with some delay, 
 and incur the necessity of amendment. 
 
 ^ The 1st Admiralty Rule prescribes that no mesne process shall issue from 
 the district court in any cause of admiralty or maritime jurisdiction, until the libel 
 or libel of information shall be filed in the clerk's office. 
 
 ^ Mr. Dunlap, in his treatise on Admiralty Practice, p. 130, is of the opinion 
 tliat, in an admiralty case in behalf of the United States, to enforce a forfeiture, 
 it would be hazardous to adopt any other course, because the Act of 1799, ch. 22, 
 § 89, 1 U. S. Stats, at Large, 695, declares that it shall be " libelled and prose- 
 cuted" in the "proper court having cognizance thereof." But we should not 
 infer from this that It was absolutely essential that the libel should be filed in 
 open court. 
 
 ^ See Jenks v. Lewis, Ware, 51. 
 
 VOL. II. 24
 
 370 ADMIRALTY PRACTICE. [BOOK III. 
 
 SECTION IV. 
 
 OF THE PARTIES TO A LIBEL. 
 
 The libel (from Ubellus, a little book) is, or contains, the state- 
 ment upon which the libellant, or plaintiff, founds his case. It 
 should properly be brought by the party actually entitled to the 
 relief or aid which the libel prays for,i and not in the name of 
 one person for the benefit of another. It has, however, been held 
 that the agent of absent owners may sue, either in his own name 
 as agent, or in the name of his principals, and that a subsequent 
 power of attorney is a sufficient ratification of what he had done 
 in their behalf.^ 
 
 Where a suit for collision was brought in the name of A and 
 the damage pronounced for, and on referring tjlie case to assess 
 damages, it appeared that B, and not A, was the registered owner 
 of the vessel injured. Dr. Lushington held that the case should 
 proceed, and if there was any doubt as to the party entitled to 
 receive the amount, he should order it to be paid into the registry, 
 and throw upon the party claiming it the burden of establishing 
 his ownership.^ 
 
 A consignee may also sue in admiralty in his own name for 
 damage done to the goods consigned to him, or for their non- 
 delivery.^ And an assignee of a chose in action may sue in his 
 own name,^ even though the assignment is but of a part of the 
 entire right.^ So, bailees of a vessel may sue for damage done to 
 the vessel, which is in their possession under a contract obliging 
 them to return the vessel in as good order as when received by 
 them." 
 
 > Cobb V. Howard, 3 Blatchf. C. C. 524 ; Mutual Safety Ins. Co. v. The Cargo 
 of The Brig George, Olcott, Adm. 89 ; The Sch. Mary Ann Guest, id. 498. See 
 Fretz V. Bull, 12 How. 466. 
 
 " Houseman v. Sch. North Carolina, 15 Pet. 40, 49 ; McKinlay v. Morrish, 21 
 How. 343. 
 
 ' The Ilos, Swabey, Adm. 100. In this case the party in whose name the suit 
 ■was brought claimed to be the beneficial owner by a bill of sale not registered. 
 See also The Minna, Law Rep. 2 Adm. 97. 
 
 * McKinlay v. Morrish, 21 How. 343 ; Lawrence v. Minturn, 17 How. 100. 
 
 * See ante, Vol. L p. 193, n. 2. 
 
 * Swett 17. Black, 1 Sprague, 574. 
 
 ' The Minna, Law Rep. 2 Adm. 97. .
 
 CH. II.] PARTIES TO A LIBEL. 371 
 
 111 cases of seizure, the libel should be in the name of the United 
 States, and the collector should not be joined as libellant.^ And 
 in case of a capture, the prize proceedings should be in the name 
 of the United States, and not in the name of the captor.^ Minors 
 sometimes sue in admiralty without the intervention of a prochein 
 ami, or guardian, and sometimes by one. There seems to be no 
 rule on this point.^ 
 
 In some instances, as in some cases of salvage, the libellant sues 
 for himself and for others, and then the libel should state facts to 
 show that, and in what manner, these others are entitled, and who 
 they are, as definitely as may be. If there are many libellants, 
 the case of each should be distinctly articulated, as otherwise, if 
 there be a general decree, and appeals by some of the parties only, 
 there may be needless embarrassment and expense.* 
 
 If a plaintiff or defendant die, and the cause of action survive, 
 his executor or administrator may appear, and will be treated as 
 the actual party ; ^ but not if it do not survive.^ 
 
 ^ United States v. Three Parcels of Embroidery, U. S. D. C. Mass., Ware, J. 
 19 Law Rep. 140. 
 
 ^ Jecker v. Montgomery, 18 How. 110, 124. The suit in this case was in the 
 name of the commander of the capturing vesseh No exception was taken to this 
 mode of proceeding till the case came before the Supreme Court, and it also ap- 
 peared that the libel was authorized by the government. It was held that al- 
 though the form of action was irregular, yet that it was too late to take advantat^e 
 of it. 
 
 ' See Dunlap's Adm. Practice, 88. A minor may recover in his own name 
 wages earned in sea service, when the contract on which he sues was made per- 
 sonally with him, and it does not appear that he has any parent, guardian or 
 master entitled to receive his earnings. Wicks v. Ellis, Abbott, Adm. 444 ; The 
 David Faust, 1 Bened. Adm. 184. In Gifford v. Kollock, U. S. D. C. Mass., 
 Ware, J., 19 Law Rep. 21, it was held that where a minor shipped for a whalino' 
 voyage under the direction of his father, who furnished his outfit of clothino', the 
 libel was rightly brought in the father's name. 
 
 * See Sheppard v. Taylor, 5 Pet. 675, 714. 
 
 ^ The 31st section of the Act of Sept. 24, 1789, 1 U. S. Stats, at Large, 90, 
 provides " that where any suit shall be depending in any court of the United 
 States, and either of the parties shall die before final judgment, the executor or 
 administrator of such deceased party who was plaintifi", petitioner, or defendant, 
 in case the cause of action doth by law survive, shall have full power to prosecute 
 or defend any such suit or action until final judgment," etc. We presume that 
 
 ° Crapo V. Allen, 1 Sprague, 184.
 
 372 ADMIRALTY PRACTICE. [BOOK III. 
 
 SECTION V. 
 
 OF JOINDER OF PARTIES. 
 
 The act of 1790, relating to seamen, provides that if their wages 
 are not paid, etc., a suit may be brought, " and in such suit all the 
 seamen or mariners (having cause of complaint of the like kind 
 against the same ship or vessel) shall be joined as complainants." i 
 Although in other cases parties are not obliged to join in one libel, 
 " yet it is a practice deserving commendation and encouragement 
 in all cases where it can be adopted without complicating too 
 much the proceedings, and thereby prejudicing the rights of the 
 parties."^ And where several libels by different persons are 
 brought where only one is necessary, the court may order them to 
 be joined, and impose costs upon the libellants.^ Where the 
 
 this statute was intended to apply to suits in admiralty as well as to actions at 
 law or in equity. This subject is not mentioned directly in the Admiralty Rules 
 of the Supreme Court, but Mr. Justice Curlis supposes that It is covered by the 
 34th Rule, which provides for the intervention of a third party. The Brig Ann 
 C. Pratt, 1 Curtis, C. C. 340, 343. But this rule appears to be limited by its 
 terms to the case of a third person intervening for his own interest, and we should 
 not suppose it was meant to apply to the case of a person suing in a representative 
 character. 
 
 ' Act of 1790, c. 29, § 6, 1 U. S. Stats, at Large, 134. See Oliver v. Alex- 
 ander, 6 Pet. 143. In The Sloop Merchant, Abbott, Adm. 1, it was held that a 
 claim for wages and for moneys advanced to the use of a vessel on the part of one 
 libellant, could not be joined in an action in personam with a separate claim for 
 waoes alone, on the part of another, but could be in rem. 
 
 2°Rich V. Lambert, 12 How. 347, 353 ; Fretz v. Bull, 12 How. 4G6. The fol- 
 lowing citation is from the manuscript case of The Young Mechanic, decided by 
 Ware, J., U. S. D. C. Maine, 1855. "It may be stated as a general rule in 
 the admiralty, that where several persons have claims in rem against a single 
 thin"-, whether arising from tort, or contract of a like nature, and all Involving 
 one question, all may unite in a single libel for the purpose of having that 
 question tried, although when that is settled there may be special defences ap- 
 plicable to each case. When the general question is decided, the case of each 
 libellant becomes separate and independent, and is litigated on its own merits. 
 But though they may, they are not compelled to unite, and if separate libels are 
 brought, this will have no influence in the hearing on the merits of the case, but 
 will affect only the question of costs, unless satisfactory cause is shown for separate 
 libels." 
 
 » The Ship Henry Ewbank, 1 Sumner, 400 ; Rich v. Lambert, 12 How. 347, 
 352. The Charles Henry, 1 Bened. Adm. 8. In The William Hutt, Lush. Adm.
 
 CH. II.] JOINDER OF PARTIES. 373 
 
 cause of action is a joint contract, all the parties to it must join ; ^ 
 and in the same way the defendants to a joint contract must be 
 sued jointly. 
 
 "Where a contract is made by a material man, and the work ex- 
 ecuted by him, he may sue on the contract in his own name, 
 although he has a partner, if there is no evidence that the partner 
 had in any way an interest in the profits of the contract ; and it is 
 said that if he had such an interest, he need not be joined.''^ 
 
 In a case of tort, where the injury is joint, here, as before, all in- 
 juried must join. It is said that all persons interested in a cause of 
 collision may be joined in the libel. Thus the owners of the vessel, 
 and the shippers of the cargo, and all other persons affected by the 
 injury, may join, or it may be prosecuted by the master as the 
 agent of all concerned.^ And it would seem that in a cause of 
 collision a carrier might recover the value of the cargo as well as 
 that of his vessel.* But the defendants, when jointly and severally 
 liable, may be sued severally, and if the trespasses are separate 
 and distinct, several suits should be brought ; and if they are 
 joined, the libel should be dismissed for multifariousness, and a 
 misjoinder of parties.^ 
 
 Where the non-joinder of a party as libellant happens for good 
 reason, or, indeed, for any reason not fraudulent or otherwise 
 
 25, several actions were brought against a ship by different plaintiffs in respect of one 
 action of collision. A bail bond was given in each action, and the different cases 
 were then consolidated by order of court. A decree was then made for the 
 libellants, which on appeal was affirmed, and the case remitted with directions 
 " to proceed according to the tenor of former acts had and done." A motion was 
 then made to dissever the three actions. Dr. Lushington held that the court had 
 the power to order actions to be consolidated, and to dissever them, if need be, for 
 good cause shown ; that no cause was shown in this case, and that, under the 
 mandate of the higher court, he had no power to dissever the actions if cause had 
 been shown. 
 
 ^ In Taber v. Jenny, 1 Sprague, 315, it was held that where two vessels 
 are under a contract of mate-ship, there is no such joint property in a whale taken 
 by one of them as requires the owners of both to join in an action for its tortious 
 conversion. 
 
 ^ The Ship Potomac, 2 Black, 581, 584. 
 
 ^ The Commander In Chief, 1 Wallace, 43, 51. 
 
 * See The Propeller Commerce, 1 Black, 574. The Commander In Chief, 1 
 Wallace, 43. 
 
 ^ Thomas v. Lane, 2 Sumner, 1, 9.
 
 374 ADMIRALTY PRACTICE. [BOOK III. 
 
 wrongful, it is not permitted to affect the omitted party, and he 
 may sue afterwards. And parties may be added or struck out by 
 a supplemental libel at any period, if the court think proper. The 
 master and owners of a vessel cannot be sued jointly for wages.^ 
 The action must be against the ship, freight, and master, or against 
 the ship and freight, or against the owner or master alone in per- 
 sonam? t 
 
 A part-owner may sustain a petitory suit against a merely 
 'fraudulent possessor, without joining the other part-owners, and if 
 they do not appear or object, and the libellant establishes his tifle, 
 the court will decree the possession of the vessel to him.^ 
 
 Where it appears that the parties named as libellants are com- 
 petent to prosecute the suit, the non-joinder of others having an 
 interest in the controversy must be shown by exception in the dis- 
 trict court, and cannot be made available as an original objection 
 when the case has gone up on appeal.^ 
 
 SECTION VI. 
 
 OF JOINDER OF ACTIONS EX CONTRACTU AND EX DELICTU. 
 
 The general rule is often stated by text-writers, that actions ex 
 delicto may be joined with those ex contractu in the same libel. 
 This may be true to a certain extent, and the reason given for it 
 is, that no regard is paid to the names or forms of actions, and that 
 it is never made a point of pleading whether the case rests upon 
 contract or tort. The evidence may also be of the same nature in 
 both cases, and thus great expense and delay is saved.^ The 
 matter is not provided for by the rules of the Supreme Court, ex- 
 cept that it is there enjoined that all libels shall state the nature 
 of the cause ; as, for example, that it is a cause civil and maritime, 
 of contract, or of tort or damage, or of salvage, or of possession, or 
 otherwise, as the case may be. This rule makes one of the reasons 
 above given of no effect, and further adjudication is necessary to 
 
 ' Matern v. Gibbs, 1 Sprague, 158. 
 » 13th Adm. Rule. 
 
 * The Friendship, 2 Curtis, C. C. 426. 
 
 * The Commander In Chief, 1 Wallace, 43, 52. 
 
 * Borden v. Hiern, Blatchf. & H. Adm. 293, 297.
 
 CH. II.] JOINDER OF ACTIONS EX CONTRACTU, ETC. 375 
 
 determine the question. And the decisions prior to this rule have 
 not been uniform. Where additional wages are given by statute 
 in the case of the discharge of a seaman in a foreign country, it is 
 well settled that these may be recovered in a suit for wages, al- 
 though they are to a certain extent in the nature of damages.^ 
 Mr. Dunlap, in his work on Admiralty Practice,^ says : " An ac- 
 tion in admiralty has been sustained in the district court of the 
 United States for the district of Massachusetts, by a mate against 
 a master of a ship for wrongfully dismissing and degrading him 
 from his station, and an article or count for wages was joined in 
 the libel.^ It is also allowed, but not required, in that court, to 
 join in distinct articles causes of action ex contractu and ex delicto 
 in the same libel." * In 1832, Judge Betts held that a claim 
 against a master and mate for an assault, and a claim against the 
 master for wages earned in the same voyage, might be joined in 
 the same libel.^ But in 1837, Judge Ware held that an action of 
 damages, as for assault and battery, against the master, could not 
 be joined in the same libel with an action for wages, if it were 
 excepted to.^ And Judge Sprague has held that a claim for per- 
 sonal damages cannot be included in the same libel with a claim , 
 for the fine recoverable under the statute of 1840, c. 48.' 
 
 * Emerson v. Rowland, 1 Mason, 45 ; Orne v. Townsend, 4 Mason, 541. 
 « Page 89. 
 
 ' Paty's Case. 
 
 * Ryan's Case, Sept. Term, 1831. 
 
 * Borden v. Hiern, Blatchf. & H. Adm. 293. 
 
 " Pratt V. Thomas, Ware, 427. This case was decided on the ground that a 
 claim of damages for a personal wrong is an entirely independent claim, and per- 
 fectly unconnected with that for wages. Much stress was also laid upon the point 
 that the master was liable for wages only in his quality as master, and if he had 
 paid them he had his remedy against the owners ; whereas the damages recovered 
 against him for a personal wrong were his own proper debt. See also The Jack 
 Park, 4 Rob. Adm. 308. In Steamboat Orleans v. Phoebus, 11 Pet. 175, 182, Mr. 
 Justice Story said : " It may be here proper to state that it is very irregular and 
 against the known principles of courts of admiralty to allow in a libel in rem, and, 
 quasi, for possession, the introduction of any other matters of an entirely diflfer- 
 ent character, such as an account of the vessel's earnings, or the claim of the part- 
 owner for his wages and advances as master." 
 
 ' Knowlton v. Boss, 1 Sprague, 163. The statute referred to provides that if 
 the master of any vessel shall refuse to allow the seamen to see the consul in any 
 foreign port, " he shall be liable to each and every individual injured thereby, in 
 damages, and shall in addition thereto be liable to pay a fine of one hundred dol-
 
 376 ADMIRALTY PRACTICE. [BOOK HI. 
 
 SECTION VII. 
 
 OF JOINDER OF ACTIONS IN REM AND IN PERSONAM. 
 
 Prior to the adoption of the Admiralty Rules of the Supreme 
 Court in 1845, the question was often discussed as to the propriety 
 of the joinder of actions in personam and actions in rem in the 
 same libel. ^ It is unnecessary to consider these cases at length, 
 as the subject-matter is provided for by the Rules referred to. 
 These are in brief as follows : In pilotage and collision ^ cases the 
 libellant may proceed against the ship and master,^ or against the 
 ship, or against the owner alone, or the master alone in personam. 
 In suits for mariners' wages, the ship, freight, and master, or the 
 ship and freight, or the owner or master alone in personam, are 
 liable.* In case of assaults the suit is in personam only.^ In suits 
 against the ship or freight founded upon a mere maritime hypothe- 
 cation, either express or implied, by the master for moneys taken 
 up in a foreign port for supplies or repairs or other necessaries, 
 without any claim of marine interest, the suit may be in rem, or 
 against the master or owner alone in personam. In bottomry 
 
 lars for each and every offence, to be recovered by any person suing therefor in 
 any court of the United States in the district where such delinquent may reside 
 or be found." 5 U. S. Stats, at Large, 397. Judge Sprague doubted -whether 
 there was jurisdiction in admiralty to enforce it, and held that if there was, the 
 libellant could not unite in one libel a claim for personal damages with a claim 
 for a fine which he sues for in a different capacity, that of a common informer. 
 
 1 See Waring v. Clark, 5 How. 441 ; Arthur v. Sch. Cassius, 2 Story, 81, 99 ; 
 The Anne, 1 Mason, 508, 512; Citizens' Bank v. Nantucket Steamboat Co. 2 
 Story, 16. 
 
 * Ward V. The Ogdensburgh, 1 Newb. Adm. 139, 156. A suit in rem does not 
 lie against the cargo on board the ship doing the injury, although it belongs to the 
 owners of the vessel. The Victor, Lush. Adm. 72. 
 
 ^ Newell V. Norton, 3 Wallace, 257. 
 
 * The Sloop Merchant, Abbott, Adm. 7. 
 
 " The 16th Admiralty Rule prescribes that in all suits for an assault or beating 
 on the high seas or elsewhere within the admiralty and maritime jurisdiction, the 
 suit shall be in personam only. See also The Yankee, 1 McAll. 46 7. The 
 question has arisen, whether passengers who have been beaten by the master can 
 sue the ship in rem for a breach of the contract, and recover damages for the 
 assault. Such a suit has been maintained in McGuire i\ The Golden Gate, 1 
 McAll. 104, though the judge expressed great doubt whether it was properly 
 broucht.
 
 CH. II.] JOINDER OF ACTIONS IN REM, ETC. 377 
 
 bonds the suit is in rem against the property hypothecated or its 
 proceeds in whosoever hands it may be found, " unless the master 
 has without authority given the bottomry Ijond, or by liis fraud or 
 misconduct has avoided the same, or has subtracted the property, 
 or unless the owner has by his own misconduct or wrong lost or 
 subtracted the property, in which latter cases the suit may be in 
 personam against the wrongdoer." In salvage the suit is in rem 
 against the property saved or its proceeds, or against the party at 
 whose request and for whose benefit the salvage service has been 
 performed.^ And a suit may be commenced against the salvors by 
 the owners of the property saved, for an adjustment.^ 
 
 In petitory or possessory suits, the process is by an arrest of the 
 ship, and by a monition to the adverse party or parties to appear 
 and make answer to the suit. Material men may proceed, in the 
 case of supplies, repairs, or other necessaries furnished to a foreign 
 
 ' See the 19th Admiralty Rule of the Supreme Court of the United States, 
 and Miller v. Kelly, Abbott, Adm. 564. In Bondies v. Sherwood, 22 How. 214, 
 where an action for salvage was brought in rem and also in personam, Mr. Justice 
 Grier, after noticing that the two forms were joined, said : " By reference to Mr. 
 Conkling's treatise, p. 42, It will be found that it is the prevailing opinion that 
 both cannot be joined in the same libel. The point has not been brought before 
 this court, and we notice it now only to show that it is not now decided. In The 
 Hope, 3 Rob. Adm. 215, anoljectlon to a monition calling on the owner to show 
 cause why salvage was not due, was overruled. See also The Meg Merrilies, 3 
 Hagg. Adm. 346 ; The Rapid, id. 419 ; The Centurion, Ware, 477. We should 
 suppose that under the term " property saved " might be included the freight of 
 the vessel, because this is as much saved by the salvage service as is the ship or 
 cargo ; and in England the action is frequently entered against the ship and 
 freight. The Peace, Swabey, Adm. 85. The 38th Admiralty Rule provides 
 that in case of salvage and other suits in rem, where the freight or other proceeds 
 of property are attached, the court may, upon petition, order the party charged 
 with the possession, to appear and show cause why he should not bring the same 
 into court. In Gates v. Johnson, U. S. C. C. Ohio, 21 Law Rep. 279, property 
 found d(>relict on Lake Erie was brought to Cleveland and deposited with the 
 defendant for safe-keeping. The libel was filed by the salvors, alleging that the 
 defendant had, in violation of their rights, delivered over the property to other 
 parties, and had received a certain sum of money and a bond of indemnity there- 
 for. The sum of money was paid over to the owners of the salving vessel, who 
 were joined as respondents. It was contended that the action would not lie 
 under the 19th Rule, but the court held that the Admiralty Rules were not to be 
 regarded as restrictive, but as enumerative of the more common remedies. But 
 see the cases cited p. 378, n. 1. 
 
 ^ Post I'. Jones, 19 How. 150.
 
 378 ADMIRALTY PRACTICE. [BOOK III. 
 
 ship, or to a ship in a foreign port, against the ship and freight in 
 rem or against the master or the owner alone in personam. In the 
 case of a domestic ship, their right of action for supplies, repairs, 
 or other necessaries, is limited bj a late rule to an action in per- 
 sonam. 
 
 These Rules being promulgated in accordance with an act of 
 Congress, have all the effect of law, and no suit will lie against an 
 owner in personam jointly with a suit in rem against the vessel.^ 
 If such a suit is brought, the district court may allow an amend- 
 ment which strikes out the name of the owner.^ 
 
 It will be noticed that the rule as to material men provides that 
 the suit shall be against the ship and freight. But we do not 
 know of any decision which prevents the party from bringing his 
 action against the ship alone, and in many cases of repairs, there 
 is no freight pending against which to bring the action. 
 
 The Rules above referred to make no provisions in respect to 
 contracts of affreightment. To determine whether a joinder of 
 actions is allowed in this case, reference must be had to the prac- 
 tice of the courts of the several districts. In New York, an action 
 in rem and in personam against the master has been sustained.^ 
 We doubt, however, whether such a proceeding would be al- 
 lowed in Massachusetts.* 
 
 » Dean v. Bates, 2 Woodb, & M. 87, 92 ; Ward v. The Ogdensburgh, 1 Newb. 
 Adm. 139; The Sloop Merchant, Abbott, Adm. 1. But see Gates v. Johnson, 21 
 Law Rep. 279, cited p. 377, n. 1. 
 
 * Newell V. Norton, 3 Wallace, 257. 
 ' The Zenobia, Abbott, Adm. 48. 
 
 * See Citizens' Bank v. Nantucket Steamboat Co. 2 Story, 16, 57. The action 
 in this case was in jMrsonam merely, but the language used by Mr. Justice Story 
 fully justifies the doubt of the text. In Arthur v. Sch. Cassius, 2 Story, 81, 99, 
 the libel was on a charter-party, in personam against the master, and in rem 
 against the vessel. The master died pending the proceedings, and Mr. Justice 
 Story held that the libel must be treated as defunct as to the master, and that it 
 ■was unnecessary, therefore, to consider whether an action in rem and in personam 
 could be joined.
 
 CH. II.] ESSENTIAL ELEMENTS OF A LIBEL. 379 
 
 SECTION VIII. 
 
 OF THE ESSENTIAL ELEMENTS OF A LIBEL. 
 
 The libel informs the court who the libellant is, and what he 
 claims, and what the facts are which support his claim, and of the 
 persons or things against which the claim is made. We see at 
 once what are the essential elements of a libel. They are seven 
 in number, and each of them should be distinctly set forth, in 
 appropriate language. 
 
 I. The name and legal description of the judge, and of the 
 court before which the suit is brought. 
 
 II. The name and legal description of the libellant, and any 
 office, function, or relation the libellant may hold, if the right to 
 sustain the action depends upon it, as if he be a foreigner claiming 
 on any particular ground as an heir, or executor, or guardian, in 
 which capacity he might sue at home ; or if the libellant be a 
 married woman with separate personal rights. 
 
 III. The name and legal description of the person or thing 
 against whom or which the suit is brought. 
 
 IV. The nature of the cause, as that it is a cause civil and 
 maritime, of contract, or of tort or damage, or of salvage,^ or of 
 possession, or otherwise as the case may be, and if the libel is in 
 rem, that the property is within the district, and if in personam, 
 the names and occupations and places of residence of the parties.^ 
 
 V. The facts upon which the suit is brought. 
 
 VI. That the premises are true, and within the admiralty and 
 maritime jurisdiction of the United States and of the court. 
 
 VII. The prayer for the process, which is suited to the case. 
 
 VIII. The prayer for the relief or remedy which the libellant 
 seeks by the suit, and which the court is competent to give. 
 
 The process prayed for may be a warrant of arrest of the person 
 of the defendant, in the nature of a capias ; or a warrant of arrest 
 
 ' In The Island City, 1 Clifford, C. C. 210, the libellant alleged his claim to be 
 " in a cause of contract civil and maritime, and for extra services rendered." The 
 allegations in the other articles of the libel showed that a salvage service had been 
 performed, and it was held that the libellant could recover as for a salvage 
 service. 
 
 " 23d Admiralty Rule.
 
 380 ADMIRALTY PRACTICE. [BOOK III. 
 
 with a clause therein, if the defendant cannot be found, to attach 
 his goods and chattels to the amount sued for ; or if such property 
 cannot be found, to attach his credits and effects to the amount 
 sued for in the hands of the garnishees named therein ; or a 
 simple monition in the nature of a summons to appear and answer 
 to the suit. This is the mesne process provided by the Second Ad- 
 miralty Rule. The relief prayed for may be, that the defendant 
 may be decreed to pay the debt or damage claimed ; or that the 
 property be sold for forfeiture, or to pay the demand in the libel, 
 or be decreed to belong to the libellant, and to be delivered to 
 him. 
 
 How tliese things should be stated we can better indicate by the 
 forms we give in the Appendix, than in any other way ; saying 
 now only that the demand of the libellant should be so clearly 
 stated that the respondent may know, without any doubt, what 
 claims he must repel. The facts should be stated, also, that they 
 may be understood by all interested in knowing them, and the 
 judge be able to see judicially that they bring the case within his 
 jurisdiction, and within the law of his court.^ 
 
 It is necessary, however, to say something more of that part of 
 the libel which corresponds to the declaration at common law. It 
 resembles this, so far as it is a statement of the facts which com- 
 pose the case of the plaintiff, but in other respects it differs. Thus, 
 there are no forms of statement by libel which are definitely appro- 
 priated to different actions ; and there are no precise rules or 
 precedents which must be followed under peril of certain defeat. 
 The narrative of the libel sliould be plain, perspicuous, full, giving 
 all the facts which can by any reasonable construction be consid- 
 ered as a part of the case, and expressing all things in clear and 
 accurate language.'-^ In a case where a canal boat in tow of one 
 
 * Thus, in Thomas v. Lane, 2 Sumner, 1, 10, it is said that " the court cannot 
 judicially know that the tide ebbs and flows in the harbor of Havana." The libel 
 should state the facts sufficiently to show that the court has jurisdiction of the 
 case. Boon r. The Hornet, Crabbe, 426. 
 
 ^ The 23d Admiralty Rule prescribes that " the libel shall also propound and 
 articulate in distinct articles the various allegations of facts upon which the libel- 
 lant relies in support of his suit, so that the defendant may be enabled to answer 
 distinctly and separately the several matters contained in each article." In Pet- 
 tingill )'. Dinsmore, Daveis, 208, it was held that in a libel for damage, each sep- 
 arate and distinct tort which is relied on, and for which damages are claimed, 
 should be set forth in a distinct allegation.
 
 CH. n.] THE ESSENTIAL ELE5IENTS OF A LIBEL. 381 
 
 steamboat, was injured by a collision with another steamboat, it 
 was claimed that tlie libellant was not bound, in a suit against the 
 two vessels, to set forth anything more than that his boat was in 
 tow of one of the steamboats, and was injured by a collision occur- 
 ring between her and the other steamboat, but the court held that 
 the circumstances, as seen by the persons on board the canal boat, 
 should be set forth. ^ 
 
 In a collision case between a sailing vessel and a steamer, it has 
 been held not to be necessary for the former to set forth in the 
 libel whether she kept her course or not.^ 
 
 In some of the books the " counts " of a libel are spoken of. 
 Thus Mr. Dunlap says : " It is a common practice to make each 
 count in a libel a distinct article, and to set forth the first allega- 
 tion in each count as an iynprimis averment, and the subsequent 
 allegations in each count as distinct items." But this use of the 
 term might mislead a common-law practitioner. By " counts " is 
 not meant the separate articles in a libel, because it is of the 
 essence of each count in a declaration at common law that it 
 should be good by itself, and that it should be enough to give the 
 plaintiff his case, if all the other counts failed or were stricken out. 
 It is rather of the essence of each article in a libel in a civil case, 
 that it should not be thus good and valid of itself ; for it should be 
 a component and important part of the whole, not telling the 
 whole story of itself, and yet such that if it were stricken out the 
 whole would be maimed and imperfect. But there are sometimes 
 counts in a libel in admiralty as well as in a declaration at com- 
 mon law, and they are inserted for the same purpose, and to the 
 same end, namely, that if one count fails the other may stand 
 good. Thus, where goods are delivered to the master of a vessel, 
 and are destroyed before they are put on board the vessel, and the 
 master gives a bill of lading for them after they are thus destroyed, 
 it would seem to be proper that the libellant should declare in one 
 count, which should consist of several articles, upon the bill of 
 lading ; and in another count, which should also consist of several 
 articles, he should declare upon the contract of affreightment, in- 
 dependently of the bill of lading. Because if he declared merely 
 on the bill of lading, the answer would be, " The master had no 
 
 ^ The Steamboat Transport, 1 Bened. Adm. 86. 
 2 The West of England, Law Rep. 1 Adm. 308.
 
 382 ADMIRALTY PRACTICE. [BOOK III. 
 
 authority to sign the bill till the goods were on board." And if 
 he declared on the contract of affreightment, the answer would be 
 that there was a special contract, and the action should have been 
 brought on the bill of lading, which was the evidence of the con- 
 tract. 
 
 The word " counts " in the Twenty-fourth Admiralty Rule was 
 probably inserted to meet cases of this kind. 
 
 The plaintiff at common law declares ; the libellant in admiralty 
 propounds and articulates. It is common in this country for the 
 libellant to say only that he "showeth" to the court so and so. 
 The more accurate method is to say that he " propounds and 
 articulates," or, as in some forms, that he " alleges and articu- 
 lately propounds." What is meant by articulating is, the dividing 
 of the statement into its articles, or separate elements, each of 
 which constitutes an article by itself. There can be no uniform 
 and positive rule as to the manner of doing this. The purpose, 
 however, is obvious enough, and will be a sufficient guide. It is 
 that each independent fact, or closely connected sequence of facts, 
 should be stated by itself, in such a way that each one may be dis- 
 tinctly denied or admitted by the answer, and the proof applicable 
 to each one may be separated, and considered by itself; and as the 
 articles are parts of one continuous narrative, they should follow 
 each other in their proper and natural order. How this may be done 
 in different cases will be indicated by the forms we give. But it is 
 obvious that no two practitioners would be likely to do this in the 
 same way, and no two cases would permit precisely the same 
 division and arrangement. It is said that a libel may be "simple" 
 or " articulate." And if there is but one fact in the plaintiff's case, 
 or a few facts indissolubly connected, it may be unobjectionable to 
 omit a division into articles. Generally, however, a division will 
 be found useful ; and, indeed, the Twenty-second Admiralty Rule 
 requires statements which, we think, should always be articulated. 
 
 It has been remarked that " the properties of a libel are these, 
 namely, that it be round, dilucid, concluding, not obscure, uncer- 
 tain, nor general, or alternative." ^ So far as we understand these 
 epithets, they are applicable, excepting that we have some doubts 
 about the last. We know no good reason, -nor sufficient authority, 
 for saying that the stating part of a libeh shall never be, or contain, 
 
 ^ Law's Forms of Eccl. Daw, 148.
 
 CH. II.] THE ESSENTIAL ELEMENTS OF A LIBEL. 383 
 
 an alternative.^ The libellant must state his case as well as he can, 
 and as precisely and specifically as possible, but if it should hap- 
 pen that a material fact — something, for example, relating to the 
 condition of the ship in a case of salvage — may have been caused 
 in either of two ways, the libellant knows not which, but the de- 
 fendants do, we know not why he must either omit the fact, or 
 elect one way to state it, taking his chance of its being the right 
 one ; or say that it happened in both ways, which would probably 
 be impossible. We should hold, therefore, that he might state the 
 fact precisely as it is in his knowledge ; that is, in the alternative. 
 
 In many cases of libel in personam, the damages are liquidated, 
 or capable of being made precise by evidence ; in others, as for 
 personal torts, not; but in either case, and in the last especially, 
 damages should be laid in a definite sum, on account of the law 
 regulating appeals. The amount claimed should not be unrea- 
 sonably large, nor is the court bound by it, when it is smaller than 
 the justice of the case clearly requires.^ 
 
 Regularly, the libel should be signed by the libellant, or his 
 agent, and by a proctor of the court, and, unless brought in behalf 
 of government, verified by the oath of the libellant. This matter, 
 however, is of course very dependent upon the practice and rules 
 of the several district courts of this country.^ By an oath is meant 
 
 ^ In The Emily & Caroline, 9 Wheat. 381, it was held, in an information under 
 the Slave-Trade Act of 1794, that a charge stated in the alternative was good, if 
 each alternative constituted an offence for which the thing was forfeited. 
 
 - Pratt V. Thomas, Ware, 427 ; The Jonge Bastiaan, 5 Rob. Adm. 322. 
 
 ^ In Coffin V. Jenkins, 3 Story, 108, 121, Mr. Justice Story said : " I observe, 
 too, that there are some irregularities in the present case. The libel is sworn to, 
 but not the answer. The reverse is the usual and proper practice, although there 
 is no objection to the libel being sworn to, if the libellant chooses." This is left 
 to some extent an open question by the Admiralty Kules of the Supreme Court. 
 The seventh rule provides merely that " In suits in personam no warrant of arrest, 
 either of the person or property of the defendant, shall issue for a sum exceed- 
 ing five hundred dollars, unless by the special order of the court upon affidavit or 
 other proper proof showing the propriety thereof." In the Massachusetts district 
 no rule has been passed on this subject since the rules of the Supreme Conrt went 
 into operation, but the practice appears to be that the libel is not required to be 
 sworn to unless there is an arrest of person or property. See Dunlap's Adm. 126. 
 The rule appears to be the same in both of the New York districts. In Maine, 
 the practice is to require, if not the libel, yet in all cases the debt or cause of 
 action upon which the libel is filed, to be verified by affidavit. See Hutson t'. 
 Jordan, Ware, 385.
 
 384 ADMIRALTY PRACTICE. [BOOK IH. 
 
 a verification of the cause of action, and not the ancient oath of 
 calumny of the admiralty.^ 
 
 The libellant may require the respondent to answer on oath all 
 interrogatories propounded by him touching all and singular the 
 allegations in the libel, at the close or conclusion thereof.^ 
 
 The practice is general in this country, and perhaps universal, 
 to file the libel in the clerk's office, at any time, either of term or 
 vacation, and taking out the proper process thereafter, at once ; 
 and until the libel is filed in the clerk's office no process can 
 issue.^ 
 
 But, before speaking of process, it should be remarked that 
 admiralty deems it proper that a request for payment or settle- 
 
 ' Pratt V. Thomas, Ware, 427. In this case an affidavit stating that the facts 
 set forth in the libel were to the best of the belief of the party taking the oath, 
 ■was held to be sufficient. 
 
 * 23d Admiralty Rule. In Gammell v. Skinner, 2 Gallis. 45, Story, J., said : 
 " In suits for mariners' wages, the libellant may compel the adverse party to 
 answer special interrogatories, which are filed under the direction of the court, 
 and are like the interrogating part of a bill in chancery." Whether the interrog- 
 atories were filed with the libel, or afterwards, does not appear. Mr. Dunlap, in 
 his work on Admiralty Practice, 125 (1836), says: "Interrogatories are some- 
 times annexed to the libel, and sometimes propounded at some subsequent stage 
 of the cause." And Mr. Benedict^ Adm. Pr. 4 77, says : " Either party may, at any 
 time before hearing, propose interrogatories to the other, and he is not compelled 
 to annex them to his pleading, or to put them in at the same time that he files his 
 pleading, although that is the usual course." The 99th Rule of the court for the 
 southern district of New York provides that either party may propound interrog- 
 atories to the other, within four days from the putting in of the claim or answer 
 or other pleading, and the perfections of the same, if excepted to. So, too, the 
 rule in force in the first circuit at the time Mr. Dunlap wrote, gave the libellant 
 the right to require the personal answer of the defendant on oath to interrog- 
 atories filed in court. On reference to the new 23d Rule now in force, it will be 
 found that it states what the libel shall contain, and at the close give the libellant 
 the power stated in the text. AVe should have considerable doubt whether this 
 rule, and the omission of the mention of the subject in any other, should be con- 
 strued as confining the libellant to the exercise of his right to interrogate the de- 
 fendant by questions at the close of the libel. In suits in rem there is no defend- 
 ant at all, strictly speaking, and interrogatories filed with the libel to all persons 
 •who may claim the property would be of little avail, until it is known who those 
 persons shall be. We should have no doubt but that the court would allow a 
 libellant, after the answer of the claimant was filed, to amend his libel by adding 
 interrogatories to the claimant, or the party answering. 
 
 ' 1st Admiralty Rule.
 
 CH II.] THE ESSENTIAL ELEMENTS OF A LIBEL. 385 
 
 merit should be made before an action is brought ; and though the 
 court would not probably defeat an action on this ground, unless 
 in extraordinary cases, it would deem it a good reason for throw- 
 ing the whole expense on the libellant, if there were any reason 
 for supposing that the request might have prevented the litiga- 
 tion.^ 
 
 Where the libel is filed by the government for a breach of the 
 revenue laws, or other offence which is followed by forfeiture, and 
 triable in admiralty, it is called sometimes a libel of information, 
 but more properly, perhaps, an information, which it is in fact. 
 It differs from the libel in civil cases, in that it begins with stating 
 that the attorney of the United States " gives this honorable court 
 (or the judge aforesaid) to understand and be informed that, &c.," 
 and then sets forth the place of seizure, whether it be on land, or 
 on the high seas, or on navigable waters within the admiralty and 
 maritime jurisdiction of the United States, and mentions the dis- 
 trict within which the property is brought, and where it then is. 
 It should also propound in distinct articles the matters relied on 
 as grounds or causes of forfeiture, and aver the same to be con- 
 trary to the form of the statute or statutes of the United States in 
 such case provided, as the case may require. It should conclude 
 with a prayer of due process to enforce the forfeiture and to give 
 notice to all persons concerned in interest to appear and show 
 cause at the return day of the process why the forfeiture should 
 not be decreed .2 And as this is in the nature of a criminal pro- 
 ceeding, and therefore all the steps must be critically accurate, the 
 district attorney sometimes states the fact in many ways, under so 
 many counts of the information, when he is not certain as to the 
 exact facts which will appear in proof. It is not necessary to state 
 any fact which is only matter of defence,^ but the facts relied on 
 as grounds of forfeiture should be distinctly and severally articu- 
 lated, with a general averment that the same are contrary to the 
 
 ^ See Purcell v. Lincoln, 1 Sprague, 230. 
 
 « 22d Admiralty Rule. 
 
 ' The Aurora, 7 Cranch, 382. If the exception is in the positive enactments of 
 the statute, it should be negatived, but exceptions which come in by way of pro- 
 viso, or in subsequent statutes, are properly matters of defence for the defendant. 
 United States v. Hayward, 2 Gallis. 485, 497. 
 VOL. II. 25
 
 386 . ADMIRALTY PRACTICE. [BOOK III. 
 
 form of the statute or statutes of the United States.^ In other 
 respects the libel of information, the claim and stipulations, and 
 delivery of property, are like those in libels in civil suits, except- 
 ing that the district attorney is never required to stipulate for costs, 
 and such other diversities of practice as arise from any special 
 provisions as to forfeitures or from the rules of the courts. On 
 the questions which may arise, the rules of the common law have 
 no force, excepting so far as they are rules also of justice and 
 reason. 2 But it may be prudent, as it is on the whole the safest 
 practice, to follow these rules to some extent, in framing the aver- 
 ments and allegations of the libel ; and a libel of information 
 should carefully follow the statute on which it is founded.^ It is 
 generally sufficient if the offence is described in the words of the 
 law, and so described that if the allegation is true, the case must 
 be within the statute.* But if the words of the statute are gen- 
 eral, embracing a whole class of individual subjects, but must 
 necessarily be so construed as to embrace only a subdivision of 
 that class, the allegation must conform to the legislative sense and 
 meaning.^ The offence must also be substantially stated, and it 
 is not enough to refer to the provisions of a particular statute.^ 
 And a charge may be stated in the alternative, if each alternative 
 constitutes an offence for which the thing is forfeited.'^ 
 
 The process in admiralty, which follows the libel, is intended, 
 as at common law, to call the defendants into court to answer the 
 plaintiff", or to arrest and hold them personally, or to attach their 
 property and make it responsible for the debt. There is, however, 
 one very important difference between admiralty and common 
 
 * In The Merino, 9 Wheat. 391, it was held not to be necessary to conclude 
 contra formam statuti ; but this is now rendered necessary by the 22d Admiralty 
 Rule. Much technical nicety is said to exist in common-law informations relative 
 to a conclusion in the singular or plural, and the rules may be found in Dunlaji's 
 Admiralty Practice, p. 118, 119. 
 
 ' The same technical strictness is not required in admiralty as in proceedings 
 at common law. Cross v. United States, 1 Gallis. 26, 31 ; Sch. Hoppet v. United 
 States, 7 Cranch, 389 ; The Samuel, 1 Wheat. 9. 
 
 * The Sch. Betsey, 1 Mason, 354. 
 
 * The Samuel, 1 Wheat. 9 ; The Emily, 9 Wheat. 381 ; The Merino, 9 Wheat. 
 391. 
 
 ' The Mary Ann, 8 Wheat. 380. 
 
 ' The Sch. Iloppet v. United States, 7 Cranch, 389. 
 
 ' The Emily, 9 Wheat. 381.
 
 CH. n.] THE ESSENTIAL ELEMENTS OF A LIBEL. * 387 
 
 law ; it is that admiralty has a proceeding in rem, in civil, though 
 not in criminal cases, which is unknown at common law. This 
 undoubtedly arose from the frequent necessity of action in courts of 
 maritime jurisdiction in reference to property, as ships or cargoes, 
 when the owners were either unknown or were out of the reach 
 of the court. Whatever be its origin, we have no doubt that it 
 extends to all property or the proceeds of property upon which a 
 maritime claim may be made by the law of admiralty or by a 
 local law, but that the right to proceed in personam exists con 
 currently with the other, and either may be used at the election of 
 the libellant.
 
 388 ADMIRALTY PRACTICE. [BOOK m. 
 
 CHAPTER III. 
 
 OF MESNE PROCESS IN SUITS IN PERSONAM. 
 
 SECTION I. 
 OF THE PROCESS OF ARREST OF THE PERSON OF THE DEFENDANT. 
 
 The Second Admiralty Rule, which went into force in 1845, 
 provided that in suits in personam, the mesne process might be by 
 a simple warrant of arrest of the person of the defendant, in the 
 nature of a capias. 
 
 It was provided by statute in 1839,^ that no person should be 
 imprisoned for debt in any State, on process issuing out of a court 
 of the United States, where, by the laws of such State, imprison- 
 ment for debt had been abolished ; and where, by the laws of a 
 State, imprisonment for debt should be allowed, under certain con- 
 ditions and restrictions, the same conditions and restrictions 
 should be applicable to the process issuing out of the courts of the 
 United States ; and the same proceedings should be had therein, 
 as were adopted in the courts of such State. And it was after- 
 wards declared, in 1841,^ that this act should be so construed as 
 to abolish imprisonment for debt, on process issuing out of any 
 court of the United States, in all cases whatever, where, by the 
 laws of the State in which the said court shall be held, imprison- 
 ment for debt has been, or shall hereafter be abolished. 
 
 In 1850, the Supreme Court passed a rule ^ providing that " im- 
 prisonment for debt on process issuing out of the admiralty court 
 is abolished in all cases where, by the laws of the State in which 
 the court is held, imprisonment for debt has been or shall be here- 
 
 ^ Act of 1839, c. 35, 5 U. S. Stats, at Large, 321. The act has been held not 
 to apply to a debtor of the United States. United States v. Hewes, Crabbe, 
 307. 
 
 * Act of 1841, c. 2, 5 U. S. Stats, at Large, 410. 
 
 ' 10 How. V.
 
 CH. III.] PROCESS OF ARREST OF PERSON OF DEFENDANT. 389 
 
 after abolished upon similar or analogous process issuing from a 
 State court." 
 
 It will be noticed, that while the act of 1839 provides not only 
 for the case of imprisonment for debt being abolished by the State 
 laws then in force, but also for the case of imprisonment being 
 allowed in certain cases, the act of 1841 adopts not only the exist- 
 ing State laws, but also future laws ; it applies, however, only to 
 those laws which abolish imprisonment. It has, therefore, been 
 held that the statute of 1841, and the Supreme Court rule of 
 1850, apply only to cases where, by the State laws, imprisonment 
 for debt is absolutely abolished, and not where it is merely modi- 
 fied and restricted. 1 
 
 In 1867,^ an act was passed which provided : " That whenever 
 upon mesne process or execution issuing out of any of the courts 
 of the United States, any defendant therein is arrested or impris- 
 oned, he shall be entitled to discharge from such arrest or impris- 
 onment, in the same manner as if he was so arrested or imprisoned 
 on like process of the State courts in the same district. And the 
 same oath may be taken, and the same length of notice thereof 
 shall be required, as is provided by such State laws ; and all 
 modifications, conditions and restrictions upon imprisonment for 
 
 ^ In re Freeman, 2 Curtis, C. C. 491. This was a hearing upon a rule against 
 the marshal calling on him to show cause why he had not levied an execution on 
 the body of a debtor. The execution was issued on a decree in admiralty. The 
 marshal set up in defence the United States statutes of 1839, 5 U. S. Stats, at 
 Large, 321, and of 1841, 5 U. S. Stats, at Large, 410, and the act of Massachusetts 
 of 1855, entitled " An Act to abolish imprisonment for debt, and to punish fraud- 
 ulent debtors." Mr. Justice Curtis doubted whether the adoption by Congress of 
 prospective legislation by the States was constitutional, but held that Congress 
 had adapted merely laws abolishing imprisonment and not laws modifying it, and 
 that the law of Massachusetts fell within this latter class. So held, also, in Camp- 
 bell V. Hadley, 1 Sprague, 470, in respect to the Massachusetts act of 1857. A 
 writ oHiabeas corpus was issued in such a case in the circuit court for the North- 
 ern District of New York, and the debtor released. The case was taken to the 
 Supreme Court, but this point was not considered. Pratt v. Fitzhugh, 1 Black, 
 271. The case of Hodge v. Bemis, U. S. D. C. Northern District of New York, 
 12 Law B,ep. 470, and the cases of Gardner v. Isaacson, Abbott, Adm. 141, and 
 Gaines v. Travis, Abbott, Adm. 422, to the same effect, were decided before the 
 additional rule was passed. In The Kentucky, 4 Blatchf. C. C. 448, where the 
 party was released, the State law was passed in 1831. 
 
 " Act of 186 7, c. 180, 14 U. S. Stats, at Large, 543.
 
 390 ADHriRALTY PRACTICE. [BOOK III. 
 
 debt, now existing by the laws of any State, shall be applicable to 
 process issuing out of the courts of the United States therein, and 
 the same course of proceedings shall be adopted as now are or 
 may be in the courts of such States. But all such proceedings 
 shall be had before some one of the commissioners appointed by 
 the United States circuit court to take bail and affidavits." 
 
 If the sum exceeds five hundred dollars, no warrant of arrest of 
 either person or property can issue unless by the special order of 
 the court upon affidavit, or other proper proof showing the pro- 
 priety thereof.^ 
 
 SECTION II. 
 
 OF MESNE PROCESS BY ATTACHMENT OF GOODS. 
 
 The next form of mesne process allowed by the second admiralty 
 rule, is " a warrant of arrest of the person of the defendant, with 
 a clause therein, that if he cannot be found, to attach his goods 
 and chattels to the amount sued for." 
 
 This form of process applies only to the case where the party 
 cannot be found. It has, therefore, been deemed necessary in the 
 District of Massachusetts to provide for the case which may arise 
 in consequence of the rule of the Supreme Court of 1850, relative 
 to the arrest of the person of the defendant, and a rule was passed 
 on the 27th of June, 1855, providing that where the defendant 
 could not 1)0 legally arrested, the mesne process might be a war- 
 rant to attach his goods, etc., as in the Supreme Court rule. This 
 rule was made prior to the decision of Mr. Justice Curtis, above 
 referred to,^ and was probably made to meet the case of the de- 
 fendant not being liable to arrest by virtue of the State law. The 
 language of the rule is, however, sufficiently broad to cover all 
 cases where the defendant cannot be legally arrested. 
 
 The question as to the power of the court to grant an attach- 
 ment of goods when the defendant was out of the jurisdiction, was 
 elaborately considered in an early case as a new question, and the 
 power was asserted by the Supreme Court, Mr. Justice Johnson 
 giving the opinion.'^ It has, however, been held that the 11th 
 
 * 7th Admiralty Rule. 
 
 * See ante^ p. 389, n. 1. 
 
 * Manro v. Almeida, 10 Wheat. 471.
 
 CH. III.] THE PROCESS OF ATTACHMENT. 391 
 
 section of the judiciary act of 1789,^ which provides that, " No 
 civil suit shall be brought before either of said courts (tlie district 
 and circuit courts), against an inhabitant of the United States, by 
 any original process in any other district than that whereof he is 
 an inhabitant, or in which he shall be found at tlie time of serving 
 the writ," applies equally to suits in admiralty as to those at com- 
 mon law.^ But we do not consider this decision to be correct, 
 
 » 3 U. S. Stats at Large, 79. 
 
 » Wilson V. Pierce, U. S. D. C. California, 1852, 15 Law Rep. 137. The case 
 of Manro v. Almeida, 10 Wheat. 4 73, is explained on the ground that the defend- 
 ant in that case was an absconding debtor and an inhabitant of the district in 
 which the suit was brought. The decision in the case of Wilson v. Pierce was 
 given by Judge Hoffman, and is of marked ability, and fully discusses the 
 previous decisions. But we do not regard it as sound in principle, and shall 
 briefly consider some of the objections to it. In the first place, is a suit in admi- 
 ralty a civil suit within the meaning of that term in the 11th section ? We are 
 clearly of the opinion that it is not. The two sections immediately preceding the 
 one in question provide for the jurisdiction of the district courts in civil causes of 
 admiralty and maritime jurisdiction, and in some other peculiar cases. The 11th 
 section, on the contrary, provides in the beginning that the circuit courts shall 
 have original cognizance, concurrent with the State courts, " of all suits of a civil 
 nature at common law or in equity, where the matter in dispute exceeds, exclu- 
 sive of costs, the sum or value of five hundred dollars," etc. Concurrent jurisdic- 
 tion with the district court is also given of crimes and offences cognizable therein, 
 and it also provides that " no person shall be arrested in one district for trial in 
 another in any civil action before a circuit or district court." Then follows the 
 clause which we have cited in the text. It is thus evident, we think, that this 
 clause was confined solely to the subjects embraced in the first part of the section, 
 viz. : " suits of a civil nature at common law or in equity." And this position we 
 think is clearly supported on authority. It is true that the case of Manro v. Al- 
 meida, is strictly an authority only to the point that an attachment will issue 
 when the party has absconded from the country, and has goods within the juris- 
 diction of the court ; but that the same rule applied to the case in question was 
 never doubted until the decision of Hoffman, J. The point arose in Clarke v. 
 New Jersey Steam Nav. Co. 1 Story, 531, where a corporation doing business in 
 New Jersey was sued in the Rhode Island district and their property in that dis- 
 trict attached. Story, J., who was on the bench when the case of Manro v. Al- 
 meida was decided, said: "Neither has it been doubted that the process of 
 attachment well hes in an admiralty suit against the property of private persons 
 whose property is found within the district, although their persons may not be 
 found therein, as well to enforce their appearance to the suit, as to apply it in sat- 
 isfaction of the decree rendered in the suit. Ever since the elaborate examina- 
 tion of this whole subject in the case of Manro v. Almeida, this question has been 
 deemed entirely at rest." The facts were the same in New Jersey Steam Nav. 
 Co. V. Merchants' Bank, 6 How. 344, and it is somewhat singular, that, if the
 
 392 ADMIRALTY PRACTICE. [BOOK III. 
 
 and have no doubt that a person who resides out of a certain dis- 
 trict may be sued in admiralty in that district, if he has property 
 there which can be attached.^ If goods are in possession of the 
 marslial by virtue of a process issuing from the United States 
 court, a State court cannot by a writ of replevin take them from 
 the possession of the marshal ; ^ but the marshal may be sued in 
 trespass in a State court.^ 
 
 SECTION III. 
 
 OF FOREIGN ATTACHMENT. 
 
 The second admiralty rule also provides that the warrant of 
 arrest may contain a clause that if goods and chattels of the de- 
 fendant cannot be found, " his credits and effects to the amount 
 sued for in the hands of the garnishees named therein may be 
 attached." 
 
 The process of foreign attachment in admiralty is governed by 
 its own rules and principles, and does not depend on, and is not 
 derived from, the custom of London, or the local laws of the differ- 
 ent States.* Some question has been made whether process of 
 foreign attachment can issue when the defendant is not an inhabi- 
 tant of the district, but, for the reasons already stated, we are 
 clearly of the opinion that a suit may be brought in the district 
 court where the property is.^ 
 
 By the Thirty-Seventh Rule of the Supreme Court, the garnishee 
 is required, in cases of foreign attachment, " to answer on oath or 
 solemn affirmation, as to the debts, credits, or effects of the .de- 
 fendant in his hands, and to such interrogatories touching the 
 same as may be propounded by the libellant ; and if he shall 
 
 objection taken by Judge Hoffman is valid, the point should not have been 
 noticed either by court or counsel, or by the three judges who dissented. See 
 also Bouysson v. Miller, Bee, 186; King v. Shepherd, 3 Story, 349; Boyd v. 
 Urquhart, 1 Sprague, 423. 
 
 * This view has been fully sustained by Benedict, J., in Atkins v. The Fibre 
 Disintegrating Co. 1 Bened. Adm. 118. 
 
 " Freeman v. Howe, 24 How. 450. 
 
 ' Buck V. Colbath, 3 Wallace, 334. 
 
 * Manro v. Almeida, 10 Wheat. 473. 
 ' See ante, p. 391.
 
 CH. in.] FOREIGN ATTACHMENT. 393 
 
 refuse or neglect so to do, the court may award compulsory process 
 in personam against him. If he admit any debts, credits, or effects, 
 the same shall be held in his hands liable to answer the exigency 
 of the suit." 
 
 It has been held that the warrant of arrest must contain a cita- 
 tion to the garnishee commanding him to appear, and that it is 
 not sufficient to serve upon him a copy of the process, containing 
 the foreign attachment clause, without a citation.^ 
 
 ^ Smith V. Mlln, Abbott, Adm. 373. The defendant and the garnishee were 
 both defaulted, and on an execution being issued against the " credits and effects " 
 in the hands of the garnishee, he appeared and moved that all proceedings in 
 relation to him be set aside for irregularity. And the court ordered it to be done 
 for the reasons stated in the text. This case was decided in 1848, and in 1858 a 
 somewhat similar question came before the district court in Massachusetts, Shorey 
 V. Rennell, 1 Sprague, 418. The garnishee entered an appearan,ce, but gave no 
 stipulation, and put in no answer. After judgment against the defendant, he was 
 called and was defaulted. The proctor for the libellant then filed an affidavit that 
 the garnishee had admitted both before and after the suit was brought, that he 
 owed the principal a certain amount, and moved for execution against the per- 
 son and property of the garnishee. This was granted, but the execution was 
 afterwards stayed by order of court on motion of the garnishee. The libellant 
 then moved the court for an execution against the garnishee personally, and 
 against his property generally, to the amount of the credits in his hands, as shown 
 by the affidavit. The garnishee then offered his affidavit that he had no goods, 
 effects, or credits of the principal in his hands, and prayed that he might make 
 disclosure under oath, and to answer all interrogatories that might be propounded, 
 and that thereupon he might be discharged. The case was considered at great 
 length and the following conclusions arrived at : that the compulsory process men- 
 tioned in the rule was not a process against the trustee to compel him to pay to 
 the creditor his debts to the extent of the credits alleged by the libel to be in the 
 hands of the trustee, but that it was a process to compel him to perform the duty 
 previously prescribed, namely, to answer. The learned judge was also of the 
 opinion that if the garnishee chose to waive his right and submit to a default, it 
 was not imperative upon the libellant to coerce an answer, but if he could, upon 
 a default, show to the satisfaction of the court that the garnishee held debts, 
 effects, or credits, there was no reason why an execution might not issue. It was 
 also said that after such execution, and a refusal by the trustee to pay, he had not 
 the right to make answer that he had not, when summoned, any debts, effects, or 
 credits of the defendant in his hands, unless, perhaps, where there was some other 
 cause than existed at the time of the commencement of the suit, as the discharge 
 of the judgment against the principal by other means, or the destruction of the 
 property in the hands of the garnishee without his fxult. The circumstances of 
 the case were somewhat peculiar, an affidavit having been put in stating that the 
 proctor of the libellant had agreed that the garnishee need not make answer in
 
 894 ADMIRALTY PRACTICE. [BOOK HI. 
 
 It will be noticed by the second rule, that the garnishees must 
 be named in the warrant of arrest, and a general order would not 
 be sufficient. And interrogatories to the garnishees, it would 
 seem, may be filed with the libel or afterwards. 
 
 SECTION IV. 
 
 OF THE MONITION IN SUITS IN PERSONAM. 
 
 The Second Admiralty Rule of the Supreme Court goes on to 
 provide, that the mesne process may be by a simple monition in 
 the nature of a summons to appear and answer to the suit. 
 
 The simple monition should be by service on the respondent, 
 and it is issued only when neither an arrest nor an attachment is 
 desired. In admiralty, we think, it is clear that residence does 
 not give jurisdiction, and either the person or his property must 
 be found in the district. If the person, then there may be an 
 arrest or a monition. If the person cannot be found, then there 
 may be an attachment. But the rules of the Supreme Court do 
 not provide for an attachment of goods and a monition, unless the 
 suit is in rem, and the reason, we think, is this. In suits in rem, 
 all the world is bound, and notice should be given, and the rules 
 so provide ; but in suits in personam, where property is attached, 
 only the interest of the respondent in the property is bound. 
 Notice to the world, therefore, is not necessary, and it would seem 
 that the attachment was intended to operate as a notice to the 
 respondent. 
 
 court, but that if judgment should be rendered against the principal, the answer 
 might be sent to the proctor, and that the default was obtained without due no- 
 tice. Under these circumstances the default was taken off, and the garnishee was 
 allowed to answer on condition that his answer might be contested by the libel- 
 lant, and that he should enter into stijiulation with surety to pay whatever sums 
 should be decreed against him. It was also stated on the authority of Gierke's 
 Praxis, tit. 34, that ordinarily the sworn answer of the garnishee would be con- 
 clusive, although ]\Ir. Benedict, in his Admiralty Practice, § 459, states that the 
 libellant may reply to such an answer and the issue will be tried. Gierke also 
 states that before the answer is sworn to, the libellant may be allowed to show, 
 if he is able, that the garnishee has property of the defendant in his hands ; but 
 the court said that the libellant was deprived of this option by the 3 7th Admiralty 
 Rule. See also McDonald v. Rennel, U. S. D. C. Mass., 21 Law Rep. 157.
 
 CH. m.] MONITION IN SUITS IN PERSONAM. 395 
 
 In a case before the Supreme Court in 1825, the libellant 
 alleged, that the defendant had absconded and fled beyond the 
 jurisdiction of the court, and that no means of redress remained, 
 unless by process of attachment against the goods, chattels, and 
 credits of the respondent. The libel also prayed a personal moni- 
 tion and likewise viis et modis, and the court held that the process 
 was according to the usages of admiralty courts, and decreed that 
 it should issue. 1 This process we do not consider to be necessary 
 in cases in personam under our new rules, though it was clearly 
 the old admiralty practice.^ It was the citatio publica, or viis et 
 modis of the civil law ; from which is probably derived the practice 
 in admiralty courts, the ecclesiastical courts of England, and the 
 probate courts of this country, of giving notice by posting the cita- 
 tion in conspicuous public places. It is a warrant of the court 
 directed to the marshal, requiring him to give public notice in the 
 manner designated, of the filing of the libel, and the time and 
 place for appearance or trial. It should contain a condensed and 
 very brief statement of the allegations and prayer of the libel. A 
 special monition directs the marshal to give notice to certain per- 
 sons named therein. The general monition is a notice to all 
 parties interested, — notice to the whole world, it is often called, to 
 appear, usually on the first day of the next term of the court, 
 or on the specified return day, and defend the property against 
 the claims of the libellant. 
 
 1 Manro v. Almeida, 10 Wheat. 473, 490. 
 » See Gierke's Praxis, tit. 21, 28.
 
 396 ADMIRALTY PRACTICE. [BOOK IH. 
 
 CHAPTER IV. 
 
 OF MESNE PROCESS EST SUITS EST REM. 
 
 The manner of proceeding in actions in rem, is clearly defined 
 by the rules of the Supreme Court. In ordinary cases, the pro- 
 cess, unless otherwise provided by statute, is by a warrant of 
 arrest, and the marshal is thereupon to take the thing arrested 
 into his possession for safe custody, and give public notice thereof, 
 and of the time assigned for the return of such process, and the 
 hearing of the cause, in such newspaper within the district as 
 the district court shall order, and if there is no newspaper pub- 
 lished therein, then in such other public place as the court shall 
 direct.^ 
 
 It is further provided, that in a suit in rem against a ship, her 
 tackle, sails, apparel, furniture, boats, or other appurtenances, if 
 such tackle, sails, etc., are in the possession or custody of any 
 
 ^ 9th Admiralty Rule. This mode of giving notice was expre^Iy adopted in 
 the Collection Act of 1799, c. 22, § 89 (1 U. S. Stats, at Large, 695), which pro- 
 vided that in cases of seizure under the act, the court should " cause fourteen 
 days' notice to be given of such seizure and libel, by causing the substance of such 
 libel, with the order of the court thereon, setting forth the time and place ap- 
 pointed for trial, to be inserted in some newspaper published near the place of 
 seizure, and also by posting up the same in the most public manner, for the space 
 of fourteen days at or near the place of trial." In The Mary, 9 Cranch, 144, 
 Marshall, C. J., said: "Where they" (the proceedings) "are m rem, notice is 
 served upon the thing itself. This is necessarily notice to all those who have any 
 interest in the thing, and is reasonable because it is necessary, and because it is 
 the part of common prudence for all those who have any interest in it, to guard 
 that interest by persons who are in a situation to protect it." See also The Com- 
 mander In Chief, 1 Wallace, 43, 52. In The Hibernia, 1 Sprague, 78, the mar- 
 shal gave notice by publication as directed, and took formal possession of the ship, 
 but did not go on board again, and left no one in possession, and the owner did 
 not know of the arrest till twelve days afterwards. It was held that the marshal 
 was not entitled to custody fees. Sprague, J., said : " In the execution of admi- 
 ralty process in rem the officer should take actual and manifest possession, and 
 hold it in such a manner that inquirers and observers may learn or see that he 
 has such possession."
 
 CH. IV.] MESNE PROCESS IN REM. . 39T 
 
 third person, the court may, after a due monition to such third 
 person, and a hearing of the cause, if any there be, why the same 
 should not be delivered over, award that the same be delivered 
 into the custody of the marshal or other proper officer, if, upon the 
 hearing, the same is required by law and justice.^ 
 
 As a suit in rem depends upon the service of the process upon 
 the property, it is obvious that the place where the debt was in- 
 curred or the injury done, is not material, and suit may be pros- 
 ecuted in any district where the res is found.'"^ 
 
 If the property, at the time the warrant of arrest issues, is in the 
 hands of a State officer by virtue of process issuing from a State 
 court, the marshal has no power to take the property, but must 
 delay seizure till after the property has passed from the possession 
 of the officer.^ 
 
 It has been held, however, that this principle does not apply 
 where the person in possession of freight-money has been sum- 
 moned by trustee or garnishee process in a suit in a State court 
 against the owner of the vessel ; and that it is no defence, in 
 answer to a monition from the admiralty court requiring the 
 freight to be brought into that court, to say that the holder of it 
 has been summoned by a garnishee process in the State court.* 
 
 An admiralty rule provides that in all suits m rem, " where the 
 freight, or other proceeds of property are attached to, or are bound 
 by the suit, which are in the hands or possession of any person, 
 the court may, upon due application by petition of the party inter- 
 ested, require the party charged with the possession thereof to 
 appear and show cause why the same should not be brought into 
 court to answer the exigency of the suit ; and if no sufficient cause 
 be shown, the court may order the same to be brought into court, 
 and upon failure of the party to comply with the order, may award 
 an attachment or other compulsive process to compel obedience 
 thereto." ^ 
 
 And in England, it has been held to be a good defence to a suit 
 
 * 8th Admiralty Rule. See also The Harmonia, 1 W. Rob. 179 ; The George 
 Prescott, 1 Bened. Adm. 1. 
 
 * The Propeller Commerce, 1 Black, 574. 
 ' See cases ante, p. 198, n. 2. 
 
 * See ante, p. 200, n. 1. 
 38th Admiralty Rule.
 
 398 ADMIRALTY PRACTICE. [BOOK IH. 
 
 for freight in a common-law court, that the defendant has, in pur- 
 suance of a monition from the court of admiralty, paid the freight 
 into the registry of that court. ^ 
 
 ' Place V. Potts, 8 Exch. 705, affirmed in the Exchequer Chamber, 10 Exch. 
 370, affirmed in the House of Lords, 5 H. L. Cas. 383.
 
 CH. v.] MESNE PROCESS IN REM AND IN PERSONAM. 399 
 
 CHAPTER Y. 
 
 OF MESNE PROCESS IN REM AND IN PERSONAM. 
 
 Regularly, each of the processes given by the second rule is a 
 thing by itself; but it is quite frequent to combine two or more, 
 and sometimes all are contained in one monition. Thus, it may 
 give notice to all the world, and also summon the defendant by 
 name, and contain a warrant or direction to attach the person 
 or the property, directly, or by foreign attachment. But a moni- 
 tion so multifarious as this, would, and must be, very rare. All 
 these things are of course governed in a great degree by the rules 
 of court, and in some districts no attachment of person or property 
 can issue without the fiat of the judge. In other districts it issues 
 as a matter of course, either in all cases, or in those of a certain 
 amount or character, or after certain verification of the claim and 
 other facts by the oath of the libellant. 
 
 If the suit be both in rem and in personam, one process, combin- 
 ing the two appropriate processes, may issue, and the marshal 
 executes this process as he would the two if sepai'ate ; or each 
 process may issue simultaneously, or as each is wanted.^ 
 
 ^ We have seen that, by the rules of the Supreme Court, suits in rem and in 
 personam may be joined in many cases, and it would seem necessary, when this is 
 done, to issue a monition to the defendants as well as to arrest the property, for, if 
 the owner should appear and defend the suit in rem, this would not render him 
 liable in personam beyond the value of the property arrested. In petitory and 
 possessory suits, the 20th Admiralty Rule provides that the process shall be by an 
 arrest of the ship, and by a monition to the adverse party or parties to appear and 
 make answer to the suit. In Blanchard i'. Ship Cavalier, U. S. D. C. New York, 
 Belts, J., it was held that, under this rule, when a vessel is arrested, notice must be 
 given specifically to the adverse party, and that it is not enough to arrest the ves- 
 sel and publish a general notice to all concerned.
 
 400 , ADMIRALTY PRACTICE. [BOOK HI. 
 
 CHAPTER VI. 
 
 OF CONTUMACY AJSTD DEFAULT. 
 
 SECTION I. 
 
 OF CONTUMACY ON THE PART OF LIBELLANT. 
 
 If in any admiralty suit the libellant shall not appear and 
 prosecute his suit according to the course and orders of the court, 
 he shall be deemed in default and contumacy, and the court may, 
 upon the application of the defendant, pronounce the suit to be 
 deserted, and the same may be dismissed with costs.^ 
 
 SECTION II. 
 
 OF CONTUMACY ON THE PART OF THE DEFENDANT. 
 
 If the defendant shall omit or refuse to make due answer to the 
 libel upon the return-day of the process, or other day assigned by 
 the court, the court shall pronounce him to be in contumacy and 
 default, and thereupon the libel shall be adjudged to be taken pro 
 confesso against him, and the court shall proceed to hear the cause 
 ex parte, and adjudge therein as to law and justice shall apper- 
 tain .^ 
 
 The power of the court to set aside a default on the part of 
 the defendant is regulated by two rules. The Twenty-Ninth Rule 
 provides that in case of a default for not answering the libel, 
 the court may in its discretion set aside the default, and, upon 
 application of the defendant, admit him to make answer at any 
 time before the final hearing and decree, upon his payment of all 
 the costs of the suit up to the time of granting leave therefor. 
 
 * 39th Admiralty Rule. 
 » 29th Admiralty Rule.
 
 CH. VI.] CONTUMACY ON THE PART OF DEFENDANT. 401 
 
 By the Fortieth Admiralty Rule the court may in its discretion, 
 upon the motion of the defendant and the payment of costs, re- 
 scind the decree in any suit in which, on account of his contumacy 
 and default, the matter of the libel shall have been decreed against 
 him, and grant a rehearing thereof, at any time within ten days 
 after the decree has been entered, the defendant submitting to 
 such further orders and terms in the premises as the court may 
 direct. 
 
 The Twenty-Ninth Rule, it will be noticed, applies to the case 
 of an application at any time before the final hearing and decree. 
 The Fortieth Rule in terms allows an application within ten days 
 after " the decree has been entered," when " the matter of the 
 libel shall have been decreed against" the defendant. 
 
 It is clear that after such a decree has been made, which would 
 give a right of appeal as from a final decree, the defendant cannot 
 apply to have the default set aside under the Twenty-Ninth Rule ; ^ 
 and we presume that the Twenty-Ninth Rule would be held to 
 apply to all cases where application is made prior to the final de- 
 cree, and the Fortieth Rule to cases where the application is made 
 after the final decree is passed. 
 
 Under the Twenty-Ninth Rule it has been held that before the 
 court will order a default to be taken off the respondent must 
 show that he has not been guilty of any laches, and that he must 
 also exhibit a meritorious defence either by answer or affidavit.^ 
 
 These rules, we presume, apply as well to suits in rem as to 
 those in personam.^ 
 
 ^ So held by Lowell, J., in the case of The Duiveland, U. S. D. C. Mass., 
 1866. 
 
 * Scott V. The Young America, 1 Newb. Adm. 107. 
 
 ^ This was assumed in The Duiveland, supra, and in Scott v. The Young 
 America, supra. 
 
 26
 
 402 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER VII. 
 
 OF THE CLAIM AND OTHER PROCEEDINGS PRIOR TO THE 
 
 ANSWER. 
 
 SECTION I. 
 
 OF THE CLAIMANT. 
 
 In any suit in rem^ the property is taken at once into custody, 
 and is considered as in possession of the court from the begin- 
 ning of the action. The owner of the property, either being per- 
 sonally notified, or taking notice from the general monition, may 
 appear for his interest in the property attached, and put in his 
 claim and answer. These should regularly be separate, but in 
 practice in this country they are frequently and perhaps usually 
 united in one document, which is then called " The claim and 
 answer of A. B." etc. Of the answer to the libel, we will speak 
 presently. The claim must be verified by the oath of the claim- 
 ant ; 1 he may be the owner of the property, or his general agent, 
 or one specially authorized, or the master of the vessel,^ or, in case 
 of a foreign ship, the consul of the nation to which it belongs.^ 
 
 ^ The 26th Admiralty Rule provides that " In suits in rem the party claiming 
 the property shall verify his claim on oath or solemn affirmation, stating that the 
 claimant, by whom, or on whose behalf, the claim is made, is the true and bond 
 fide owner thereof." 
 
 ' See The Hoop, 1 Rob, Adm. 129 ; and cases infra. The right of an agent to 
 make a claim is recognized by the 26th Admiralty Rule, which provides that 
 " Where the claim is put in by an agent or consignee, he shall also make oath, 
 that he is duly authorized thereto by the owner, or if the property be at the time 
 of the arrest in the possession of the master of a ship, that he is the lawful 
 bailee thereof for the owner." We presume that this last clause means that if the 
 master claims the vessel for the owner, he shall make oath, etc. 
 
 ' The London Packet, 1 Mason, 14, 21; The Bello Corrunes, 6 Wheat. 152; 
 The Antelope, 10 Wheat. 66. And in the case of The Ship Adolph, 1 Curtis, 
 C. C. 87, it was held that a foreign consul had authority to petition the court to
 
 CH. VII.] THE CLAIMANT. 403 
 
 This he can do, however, only as commercial agent, for if the suit 
 or claim grows out of a contested national right, only a diplomatic 
 minister may act. Nor has the consul any power to do more than 
 intervene and protect the interest of the absent. He may carry on 
 the defence, and do everything that is necessary for this purpose, 
 giving security for costs, authorizing proctors, and the like ; and 
 for all such acts as these, done in good faith, and not in themselves 
 obviously unreasonable, the principal owner, or the property, would 
 be bound. But the consul would not be permitted to receive the 
 property, or tlie funds, from the custody of the court, without es- 
 pecial authority from the owner.^ 
 
 The right of an agent to claim property is strictly limited to 
 the case of the absence of the principal. Thus, one part-owner 
 of goods, if both are within the jurisdiction of the court, can- 
 not claim the property for himself and the other owner.^ Nor 
 can the master of a vessel make the claim, if the owner is 
 present.^ 
 
 Strictly speaking, no person can claim a vessel or other prop- 
 erty, unless he has a proprietary interest in the thing claimed, or 
 acts for such person.^ One who appears because he has a lien or 
 other interest or claim upon the property is called an intervenor. 
 And both classes are specially provided for by the rules of the 
 Supreme Court. It is true that intervenors have been called claim- 
 order the marshal to pay into the registry proceeds of a sale of property libelled 
 for salvage, in which citizens or subjects of his country were interested, they being 
 absent and having no other legal representative in this country. 
 
 ^ See cases in note above. 
 
 - The Sch. Lively, 1 Gallis. 315. 
 
 ^ The Sch. Sally, 1 Gallis. 401. In the case of The Sch. Adeline, 9 Cranch, 244, 
 the coui-t said : " Where the principal is without the country, or resides at a great 
 distance from the court, the admission of a claim and test affidavit by his agent, is 
 the common course of the admiralty. But where the principal is within a reason- 
 able distance, something more than a formal affidavit by his agent is expected. 
 At least, the suppletory oath of the principal as to the facts should be tendered." 
 The objection in this case was not taken till the case came before the Supreme 
 Court, and the court held that it was too late. See also Spear v. Place, 1 1 How. 
 522. 
 
 * This distinction is also recognized by the 26th and the 34th Admiralty Eules, 
 the former of which provides for the case of a claimant, and the latter, for a third 
 person intervening.
 
 404 ADMIRALTY PRACTICE. [BOOK III. 
 
 aiits,! but this language is inaccurate, the rights of the parties 
 being entirely distinct.^ An intervener does not claim the thing 
 in controversy, but only asserts an interest in it. He cannot, 
 therefore, ordinarily be admitted to dispute the cause of action of 
 the libellant, but merely asserts his own claim, and generally that 
 it is superior to that of the libellant.^ It has, however, been held 
 that an attaching creditor may intervene and contest the suit, the 
 owner not defending.* And assignees of a bankrupt ship-owner 
 may appear for the benefit of the general estate, and contest the 
 appropriation of the general proceeds, against the assignees of the 
 freight, who seek to make the ship alone liable.^ And where there 
 are several libellants asserting liens on the vessel independently of 
 each other, the court will allow those, not having the preference 
 to contest the preceding liens, if no claimant appears.*^ 
 
 It has been held in England that, in a suit on a bottomry bond, 
 the owner of the cargo who has paid freight into court has no 
 standing in court to contest the amount due on the bond as against 
 ship and freight, although before the execution of the bond part of 
 the cargo was sold by the master, and the proceeds applied to 
 ship's expenses.'' We do not think, however, that this decision 
 would be applicable in this country, for here the loss of goods may 
 be set off against the claim for freight. 
 
 A mortgagee may come in and defend his interest in the ship, 
 but can rely only on defences open to the owners of the ship.^ 
 And underwriters having a substantial interest may be allowed to 
 defend.'^ 
 
 * Thus, in The St. Jago tie Cuba, 9 Wheat. 409, the court speak of a claim 
 filed by seamen for their wages. 
 
 * In Unitid States v. 422 Casks of Wine, 1 Pet. 547, 549, a full and accu- 
 rate definition of a claimant and his duties is given. 
 
 ' Thus in a petitory suit material men claiming a lien on the vessel for supplies 
 cannot object to the granting of the petition, because their claim does not depend 
 upon the title to or possession of the vessel. The Toronto, 1 Sprague, 170. 
 
 * The Mary Anne, Ware, 104. The vessel in this case had been attached by a 
 creditor in the State court, and was afterwards seized by the government for a 
 forfeiture, and the creditor was allowed to defend the suit. 
 
 * The Dowthorpe, 2 W. Rob. 73. 
 
 ' The George Prescott, 1 Bened. Adm. 4. 
 ' The Gem of the Nith, Brow. & L. Adm. 72. 
 ' The Chieftain, Brow. & L. Adm. 104. 
 » The llegina del Mare, Brow. & L. Adm. 315.
 
 CH. VII.] THE CLAIMANT. 405 
 
 The Thirty-Fourth Admiralty Rule has also been construed to 
 allow third parties to come in, not merely as intervenors, but as 
 parties subrogated to the rights of the original claimant by opera- 
 tion of law, as in the case of the death of a party, after the case 
 came before the court. And an underwriter, who, after the case 
 came before the circuit court on appeal, accepted an abandonment 
 made before the suit was brought, was allowed to intervene as 
 dominus litis. ^ 
 
 So>i it is said that if a suit is commenced by the owners of a ves- 
 sel, in a cause of collision, the owners of the cargo which was on 
 board the vessel of the libellants, may intervene for the protection 
 of their interests, at any time before the sum due is paid out of the 
 registry of the court.^ And when a person becomes interested in 
 the subject-matter of a suit after it has commenced, as a mort- 
 gagee who has taken possession under his mortgage for breach of 
 condition, he may be admitted as claimant.^ 
 
 If the party claiming the goods cannot make good his title to 
 them, the court will not give them up, if the libellant fails in his 
 suit, but will retain them for the actual owner,"^ and it is said to 
 be usual to retain them for a year and a day.^ 
 
 After a case has gone before the Supreme Court on appeal, 
 
 ' The Brig Ann C. Pratt, 1 Curtis, C. C. 340. Curtis, J., said : " The 34th 
 Rule seems well enough adapted to such cases. Unless this construction be put 
 upon it, I perceive no provision even for the death of a party, after an appeal to this 
 court ; and as this court does not possess the power to remit an admiralty cause 
 to the district court, and there is no rule expressly providing for a supplemental 
 libel to be filed here, some rule to prevent the abatement of suits is needful, and I 
 shall hold this 34th Rule to be applicable to all such cases." Underwriters, however, 
 cannot intervene until they have accepted the abandonment. The Ship Packet, 
 3 Mason, 255 ; The Ship Henry Ewbank, 1 Sumner, 400 ; The Sch. Boston, 1 
 Sumner, 328, 332; The Bee, Ware, 332, 335. 
 
 ^ The Commander In Chief, 1 Wallace, 43. In The Wm. Bagaley, 5 Wallace, 
 377, 412, a cause of prize, after the appeal to the Supreme Court, the ownei'S of part 
 of the vessel and cargo filed a petition asking leave to intervene for their interests. 
 It was held that they could not, and the court said : " Settled rule in this court is 
 that no one but an appellant in such a case can be heard for the reversal of a 
 decree in the subordinate court." 
 
 ^ The Jenny Lind, 3 Blatchf. C. C. 513. 
 
 * The Boat Eliza, 2 Gallis. 4, 11 ; United States i'. 422 Casks of Wine, 1 Pet. 
 547, 550. 
 
 ^ Stratton v. Jarvis, 8 Pet. 4,
 
 406 ADMIRALTY PRACTICE. [BOOK III. 
 
 a new claim cannot be presented in that court, but it may be 
 presented to the circuit court, when the cause is remanded.^ 
 
 It may also be added in this connection, that if a party appears 
 and files a claim, he thereby waives all objection to the regularity 
 of the process. 2 And an absolute appearance once given cannot 
 be recalled, for all objections to the jurisdiction on account of 
 defective process, and other formal matters, should be taken on 
 the earliest occasion.^ 
 
 SECTION II. 
 
 OF STIPULATIONS. 
 
 By virtue of their general admiralty jurisdiction, tlie district 
 courts may in cases in rem deliver property on bail or stipulation,* 
 and enforce summarily, by judgment and execution, the security, 
 or compliance with the terms of the bailment. Whether this secu- 
 rity be under seal, or like a recognizance without seal, makes no 
 difference. And if it have a seal, and is yet void as a bond, it 
 may be good as a stipulation.^ The court always orders that the 
 stipulation be taken on the direct application for the property by 
 the claimant; and having jurisdiction over the principal cause, 
 has it necessarily over all its incidents, and may by monition, 
 attachment or execution, enforce its decrees against all who 
 become parties to the proceedings.^ 
 
 * The Societe, 9 Cranch, 209. 
 
 * The Merino, 9 Wheat. 391. See also j^ost, p. 427, n. 2. 
 ' The Blakeney, Swabey, Adm. 428. 
 
 * The Brig Alligator, 1 Gallis. 145. In Lane v. Townsend, Ware, 286, it was 
 held that " any instrument taken to secure the appearance of a party to answer a 
 libel in the admiralty, is to be considered not as a bail bond at common law, but 
 as an admiralty stipulation, and construed according to the rules and practice of 
 the courts of admiralty, touching such stipulations," and that "stipulations taken 
 in the progress of a cause for the purpose of sustaining and rendering effectual 
 the jurisdiction of the court, are to be interpreted as to the extent and limitation 
 of the responsibility created by them, by the intention of the court which required 
 them, and not by the intention of the parties who are bound by them." 
 
 * The Brig Alligator, 1 Gallis. 145. 
 
 * See The Brig IloUen and Cargo, 1 Mason, 431 ; The Brig Alligator, 1 Gallis. 
 145-149 ; The Flora, 1 Hagg. Adm. 298.
 
 CH. VII.] STIPULATIONS. 407 
 
 If there be separate and distinct interests, there must be sepa- 
 rate claims and answers, and separate stipulations. ^ But if one or 
 more parties in interest refuse to make answer or claim, or enter 
 into stipulation, or are unable to do so, their contumacy or ina- 
 bility will not be permitted to injure the other parties in interest, 
 who may proceed by themselves. ^ 
 
 In the case of a bottomry bond, the ship of which the possession 
 is demanded by the obligee is the very security agreed upon, and 
 usually the only one, for the debt of the obligor, and for this rea- 
 son it is said, that admiralty will not deliver the ship to the obli- 
 gor, even on stipulation with sureties, without the consent of the 
 libellant.^ So it is said, in respect to a suit for salvage,* but 
 the Eleventh Admiralty Rule makes no such distinctions. 
 
 Where a possessory action was brought by the owner of seven- 
 eighths of a vessel, and the master, who was in possession, and 
 owner of the other eighth, applied for leave to bond the vessel 
 before filing his answer, and while the court was sitting to dispose 
 of the admiralty cases, the motion was denied.^ 
 
 These stipulations are somewhat similar to those of the civil 
 law, on and by which the party stipulating enters into certain 
 engagements, and certain others guarantee the due execution of 
 these engagements as his sureties, or, as they are sometimes called, 
 fide-jussores, which is their name in the civil law.^ These stipula- 
 
 ^ Stratton v. Jarvis, 8 Pet. 4. 
 " The Mary, 9 Cranch, 126. 
 ^ Dunlap's Adm. Practice, 1 76. 
 
 * The Ship Nathaniel Hooper, 3 Sumner, 542, 562. Mr. Justice Story sa,\d the 
 proper course, if the property was perishable or might sustain injury from the 
 delay, would be to have a sale of it authorized by the court. 
 
 * The Rainbow, 1 Bened. Adm. 40. See also The Mary, Law Rep. 1 Adm. 
 335. 
 
 ® See Lane v. Townsend, Ware, 286,- for a learned exposition of the subject of 
 bail bonds, and stipulations by the civil and by the common law. In Gierke's 
 Praxis, additions to title 4, Hall's ed. p. 12, it is said: " Securities, or cautions, as 
 they are termed by civilians, are of three sorts : — 
 
 " 1. Judicatum Solvi ; by which the party is bound absolutely to pay such 
 
 sum as may be adjudged by the court. 
 " 2. De Judicio Sisti ; by which he was bound to appear from time to time 
 during the pendency of the cause to abide the sentence and also to 
 pay a tenth part of the sum in dispute if he should be defeated. 
 "3. De Rato ; by which he engaged to ratify and confirm the acts of his 
 proctor.
 
 408 ADMIRALTY PRACTICE. [BOOK III. 
 
 tions are of many kinds ; they differ, principally, however, accord- 
 ingly as the action is in personam or in rem, and the forms in 
 blank are usually provided by the clerk. 
 
 In all suits in personam, where a simple warrant of arrest issues 
 and is executed, it is provided by the Third Admiralty Rule, that 
 the marshal may take bail, with sufficient sureties, from the party 
 arrested, by bond or stipulation, upon condition that he will ap- 
 pear in the suit, and abide by all orders of the court, interlocutory 
 or final, in the cause, and pay the money awarded by the final 
 decree rendered there in the court, to which the process is return- 
 able, or in any appellate court. And upon such bond or stipula- 
 tion summary process of execution may and shall be issued against 
 the principal and sureties, by the court to which such process is 
 returnable, to enforce the final decree so rendered, or upon appeal 
 by the appellate court. ^ 
 
 " With respect to the manner in which these cautions were taken, they 
 were : — 
 
 "1. Cautio fidejussor la : by sureties. 
 
 " 2. Pignoratitia ; by deposit. 
 
 "3. Juraloria ; by oath. 
 
 "4. Nudi promissoria ; by bare promise." 
 Where the stipulation is merely in judicio sisii, the bail may surrender the 
 debtor at any time before a decree against them. Lane v. Townsend, Ware, 286. 
 ^ See Gardner v. Isaacson, Abbott, Adm. 141. In a case in Massachusetts, en- 
 titled. In the Matter of the Bail of Snow, 2 Curtis, C. C. 485, the condition of the 
 bail bond was merely to appear and answer, and abide the final decree, and noth- 
 ing was said about paying the damages. Judgment had been obtained against the 
 defendant, and on application of the plaintiff, the court being satisfied that the 
 defendant was beyond the seas, ordered a monition to issue to the bail to show 
 cause why he should not pay the judgment, and why process should not issue 
 against him. It was contended that there was no breach of the bond until an ex- 
 ecution should have been issued and returned non est inventus, but Curtis, J., said : 
 " I am of opinion that it is not necessary to take out an execution against the 
 principal to charge such bail in the admiralty. It is in conformity with the prac- 
 tice of the high court of admiralty in England to proceed summarily against the 
 bail, in a case where the principal has gone out of the kingdom, by issuing a mo- 
 nition to the bail to show cause why execution should not go against them, without 
 citing the principal, or issuing any process against him. It is upon this practice 
 that the rule No. 3, for the admiralty practice of the district court, was framed." 
 In New York, the practice is not to obtain a monition, but to issue an execution 
 at once against the defendant and his stipulators. Gaines v. Travis, Abbott, Adm. 
 422 ; Holmes ;;. Dodge, id. 60.
 
 CH. VII.] STIPULATIONS. 409 
 
 By an additional rule, passed December term, 1850,^ it is or- 
 dered that in all suits iyi 2jersona7n where a simple warrant of 
 arrest issues and is executed, bail shall be taken by the marshal 
 and the court in those cases only in which it is required by the 
 laws of the State wliere an arrest is made, upon similar or anal- 
 ogous process issuing from the State courts. 
 
 And in a suit in jyersonam where property is attached, it is pro- 
 vided by the Fourth Rule that the attachment may be dissolved by 
 the defendant giving a bond or stipulation, with sureties. The 
 conditions of the bond are the same as are provided by the first 
 rule, except as to that which relates to the appearance of the 
 defendant, which is omitted. 
 
 The Fifth Rule provides that bonds or stipulations in admiralty 
 suits may be given and taken in open court, or at chambers, or 
 before any commissioner of the court who is authorized by the 
 court to take affidavits of bail and depositions in cases pending 
 before the court. The Thirty -Fifth Rule is much to the same effect, 
 with some differences. It provides that " stipulations in admiralty 
 and maritime suits may be taken in open court, or by the proper 
 judge at chambers, or under his order, by any commissioner of 
 the court who is a standing commissioner of the court, and is now 
 by law authorized to take affidavits of bail, and also depositions in 
 civil causes pending in the courts of the United States." The 
 former rule has been supposed, by Mr, Conkling, to be useless, 
 but it may well be that the latter rule was intended only to pro- 
 vide for stipulations for costs, and not for bonds or stipulations. 
 The Tliirty-Fourth Rule provides that intervenors shall be required 
 to give stipulations for costs, and the Thirty-Fifth Rule may have 
 been intended to apply merely to such stipulations. We are not 
 able, however, to express so definite an opinion on this point as 
 we could wish, and further adjudication is also necessary to deter- 
 mine whether, under the Thirty-Fifth Rule, the words " or under 
 his order," were intended to prevent a commissioner from acting 
 except under tlie order of the judge, or whether they have refer- 
 ence to a special commissioner. 
 
 By the Sixth Rule, it is provided that " in all suits in personam 
 wliere bail is taken, the court may, upon motion, for due cause 
 shown, reduce the amount of the sum contained in the bond or 
 
 1 10 How. V.
 
 410 ADMIRALTY PRACTICE. [BOOK III. 
 
 stipulation therefor ; and in all cases where a bond or stipulation 
 is taken as bail, or upon dissolving an attachment of property as 
 aforesaid, if either of the sureties shall become insolvent pending 
 the suit, new sureties may be required, by the order of the court, 
 to be given, upon motion and due proof thereof." ^ 
 
 If the suit be in rem, the stipulation is given for the purpose of 
 obtaining possession of the property, and not for that of liberating 
 the person ; and the Eleventh Admiralty Rule provides that in such 
 a case the vessel " may be delivered to the claimant, upon a due 
 appraisement to be had under the direction of the court, upon the 
 claimant's depositing in court so much money as the court shall 
 order, or upon his giving a stipulation, with sureties, as aforesaid ; 
 and if the claimant shall decline any such application, then the 
 court may, in its discretion, upon the application of either party 
 upon due cause shown, order a sale of such ship, and the proceeds 
 thereof to be brought into court, or otherwise disposed of as it 
 may be deemed most for the benefit of all concerned." 
 
 By the act of 1847,^ it is provided " That in any case brought in 
 the courts of the United States, exercising jurisdiction in admiralty, 
 where a warrant of arrest or other process in rem shall be issued, 
 it shall be the duty of the marshal to stay the execution of such 
 process, or to discharge the property arrested, if the same has been 
 levied, on receiving from the claimant of the same a bond or stipu- 
 lation in double the amount claimed by the libellant, with suffi- 
 cient surety to be approved by the judge of the said court, or in 
 his absence by the collector of the port, conditioned to abide and 
 answer the decree of the court in such cause ; and such bond 
 or stipulation shall be returned to the said court, and judgment 
 on the same, both against the principal and sureties, may be recov- 
 ered at the time of rendering the decree in the original cause." 
 
 If the stipulation is for a sum certain, the surety cannot be 
 compelled to pay more than that sum, although the stipulation 
 
 ^ We should, however, suppose, notwithstanding this rule is confined to the case 
 of bail actually given, and to the insolvency of the sureties, that the court, by 
 virtue of its general admiralty power, would have the power to order new sureties 
 to be given if the old ones were insufficient, though not actually insolvent. 
 
 * C. 55, 9 U. S. Stats, at Large, 181. The title of this is, " An act for the re- 
 duction of the costs and expenses of proceedings in admiralty against ships and 
 vessels." The language of the act is, however, general, and would embrace any 
 other property as well as vessels.
 
 CH. Vn.] STIPULATIONS. 411 
 
 is conditioned to pay such sum as shall be awarded by the final 
 decree.^ 
 
 It has been held in England that where the owners of a vessel 
 are only liable to the extent of the value of the ship and freight, 
 the bail are only liable to the same extent, although the action 
 may have been entered and the bail given in a larger sum ; ^ and 
 probably the same rule would obtain in this country, in similar 
 cases, for the stipulation is regarded as a substitute for the thing 
 itself, and the stipulators are liable for no more and no less than 
 the thing itself, if it had remained in the custody of the court.^ 
 And the valuation in the stipulation cannot be increased in the 
 appellate court.^ It has also been held that if a claimant receives 
 the vessel upon a stipulation to pay into court its appraised value 
 with interest and costs, he cannot insist on allowances because he 
 has discharged liens for seamen's wages ; and if much delay has 
 intervened, of which he has had the benefit, he must pay interest.^ 
 
 There has been much discussion as to the effect of the delivery 
 of the property on stipulation or bail, upon the right of the court 
 to order the rearrest of the property for any cause. It has been 
 held that if a vessel is arrested and delivered up on bail, and then 
 judgment is given in a larger sum than the bail, the court will 
 not order the rearrest of the vessel.^ There can, however, be no 
 
 * Brown v. Burrows, 2 Blatchf. C. C. 340. 
 
 ' The Duchesse De Brabant, Swabey, Adm. 264. 
 
 » The Ann Caroline, 2 Wallace, 538. In The Palmyra, 12 Wheat. 1, the case 
 had been dismissed in the Supreme Court on the ground that there had been no 
 final decree in the circuit court, but as it afterwards appeared that this arose from 
 a mistake of the clerk, and that a final decree had actually been made, the court 
 ordered the cause to be reinstated, although it was objected that they had no au- 
 thority to do so after a dismissal, because it might operate to the prejudice of the 
 stipulators, to whom the vessel had been delivered. Rice v. Minnesota R. 21 
 How. 82. 
 
 * Houseman v. Schooner North Carolina, 15 Pet. 40, 51. 
 ^ The Virgin, 8 Pet. 538. 
 
 * The Kalamazoo, 9 Eng. L. & Eq. 557. See also The Commander In Chief, 
 1 Wallace, 43, 52. In The Wild Ranger, Brow. & L. Adm. 84, the owners of 
 one vessel sued the owners of another in a cause of collision. The vessel was 
 arrested and bail given in the sum of £ 3,500. Subsequently the ship was ar- 
 rested by the owners of cargo on the other vessel and was sold under order of 
 court, and the proceeds brought into the registry. The damages in the first 
 action exceeded the sum of £ 3,500, and application was made that the bal-
 
 412 ADMIRALTY PRACTICE. [BOOK III. 
 
 doubt of the power of a court of admiralty before judgment to 
 allow an amendment of the libel, and the rearrest of the vessel. 
 But this power would be exercised with great care and caution. ^ 
 
 ance should be paid out of the j^roceeds in the registry remaining after the damages 
 in the second action were paid, and that costs and interest should also be paid out of 
 this fund. Dr. LusJdngton rejected the motion and said : " Bail given for a ship 
 in any action is a substitute for the ship ; and whenever bail is given, the ship is 
 wholly released from the cause of action, and cannot be arrested again for that 
 cause of action. Also if the ship is sold in another action, the proceeds, save by 
 the operation of some act of Parliament, are liable only to the payment of liens. 
 In this case, then, after bail was taken, the ship herself could never have been 
 made liable for damage or interest ; and I am of opinion that the proceeds of the 
 ship sold in another action are in legal consideration, as the ship itself, and, there- 
 fore, cannot be made available to answer this demand." 
 
 ^ In The Hero, Brow. & L. Adm. 447, a motion was made to amend the jvcecipe 
 by which the cause was instituted by altering the sum in which the action was 
 entered from £ 1,000 to £ 2,600, and to decree a warrant for the rearrest of the 
 vessel. It was claimed that the action had been entered in the wrong sum by 
 mistake, and that the mistake had not been discovered for eight months. Dr. Lush- 
 inyton granted the motion and said : " In The Kalamazoo and The Wild Ranger, 
 are expressions which, literally interpreted, would indicate that I have no iiower 
 to grant a rearrest for the same cause of action after the property has been 
 released on bail ; but those expressions must be read subject to the fact which 
 formed the ground of the decision in each of those cases, — that the cause of 
 action had passed into res judicata. I am of opinion that where application to 
 increase the amount of the action is made before judgment has been pronounced, 
 the court has power to direct measures to be taken to do full justice to the plain- 
 tiff. I am of opinion, therefore, that the court has power to grant this motion, 
 and that under the circumstances it is just and proper that the plaintiffs should 
 be relieved from the mistake committed. I allow the rearrest, but the plaintiffs 
 must pay all the expenses arising from their mistake." 
 
 In The Flora, Law Rep. 1 Adm. 45, the vessel and cargo were arrested in a 
 cause of collision in the sum of £ 1,000. Bail was given, and the vessel and cargo 
 released. The vessel was then repaired at a cost of £ 400. Subsequently the 
 plaintiffs increased the amount of their action to £ 3,000, and rearrested the ves- 
 sel and cargo. No further bail was given. Dr. Lusliington held the arrest to be 
 valid, but ordered the bail bond to be cancelled, and that the value of the vessel 
 should bei limited to her value at the time of the first arrest. In The Union, 4 
 Blatchf. C. C. 90, a vessel was arrested for a collision, and bail given to the ex- 
 tent of the damages claimed in the libel. The vessel was delivered up and after- 
 wards sold. Subsequently the libellants had leave to amend their libel by increas- 
 ing the damages, and the district court ordered the vessel to be redelivered up or 
 bail to an increased amount to be given. On appeal this decree was reversed, 
 the court holding that the vessel was not further liable. It was admitted that in 
 a case of mistake or fraud committed in entering into the stipulation it would be
 
 CH. VII.] STIPULATIONS. 413 
 
 It has also been questioned whether the owners of a vessel who 
 appear and contest a suit in rem are personally liable for the costs 
 when the damages and costs are greater than the stipulation. We 
 think they are so liable, on the ground that by appearing they 
 submit to the jurisdiction of the court. ^ In a case where a vessel 
 and cargo were sued on a bottomry bond, and the owners of the 
 cargo gave bail for the value of the cargo, and did not contest the 
 bond or in any way increase the amount of costs by their conduct, 
 it was held that they were not personally liable for costs.^ 
 
 competent for the court to relieve the parties. See also The White Squall, 4 
 Blatchf. C. C. 103. 
 
 ^ The Temiscouata, 2 Spinks, 208, was a cause of damage for collision. The 
 action was entered for £ 250, and bail given to that amount to answer damages 
 and costs. The decree was for the libellants. The damages were less than £ 250, 
 but the damages and costs exceeded that sum. The defendants' proctor tendered 
 £ 250. The libellants prayed that defendants should be personally liable for the 
 remainder of the costs. The defendants required the original action to proceed 
 by plea and proof, which increased the costs. Dr. Lushing/on said : " The liability 
 of the party proceeded against is defined by the statute ; it is the value of the 
 property, and of the costs incurred. Has the party proceeding narrowed his 
 remedy by the amount at which the action was entered and the bail taken, and 
 I should add, bail taken for the damage and expenses ? Had the bail been taken 
 for the full amount of the value of the ship, and the damages and costs exceeded 
 that amount, I should certainly have made the owners pay the costs, as I did in 
 one of the cases referred to. The difficulty is, that the party here has limited his 
 own demand, and I think it would require peculiar circumstances to induce me to 
 make the owner liable for any amount beyond that demand, and the bail taken. 
 I say peculiar circumstances, because I have not the least doubt of the authority 
 of the court so to do, and no question but that it would be within the limits pre- 
 scribed by the act of Parliament. In ordinary cases I should be disposed to think 
 that the party proceeding had put the limitation upon himself, and that I ought 
 not to extend it further." 
 
 Held, that this case being of small amount might easily have been settled by act 
 on petition, and that it could not have been anticipated that.the owners of the vessel 
 would require the expensive proceeding of plea and proof. The prayer of the 
 petition was granted. Dr. Lusldnrjton commented at length on the preceding 
 cases. 
 
 "' The Nostra Signora del Carmine, 1 Spinks, 303. In The Mellona, 6 Notes 
 of Cases, 62, action entered in £ 1,100 ; bail given in £540 as the value of the 
 vessel, and also £ 100 to answer costs beyond the value of the ship. The decision 
 was that only £ 520, together with the costs of the reference could be given. In 
 The Temiscouata, 2 Sj^inks, 208, Dr. Lusldngton, spealving of the case of The 
 Mellona, said : " That case is so complicated in its circumstances that I cannot 
 rely upon it as entirely applying to the present, and I wish to observe that in
 
 414 ADMIRALTY PRACTICE. [BOOK III. 
 
 It has been held that oh a suit bj one person agamst a vessel 
 for injury caused by a collision, the owners may, by showing to 
 the court that there are several other demands against the vessel, 
 growing out of the same occurrence, which exceed the value of the 
 vessel and freight, file a stipulation in the appraised value of the 
 vessel and freight, for the benefit of all persons entitled to liens 
 upon her for losses occasioned by the collision, and that on the 
 filing of the stipulation the vessel and her owners might be de- 
 clared to be discharged from all liability for losses arising out of 
 the collision.^ 
 
 If it is necessary for the purposes of justice to take possession of 
 property which has once been delivered up, on a stipulation, the 
 proper process against a person who is in possession, if he is not a 
 party to the stipulation, is a monition, and not an execution in the 
 first instance.^ 
 
 By these stipulations, the sureties agree and consent tliat execu- 
 tions may issue against them, their heirs, executors, and adminis- 
 trators, goods and chattels, for whatever sum may be decreed if 
 the stipulation be forfeited. Whether process founded thereon 
 would issue against the lands of the principal stipulator, or his 
 sureties, was not positively determined by the authorities,^ prior 
 
 reading over that case carefully there is one expression in page 72, which either 
 dropped from me inadvertently, or was misconceived by the reporter ; at any 
 rate it is ambiguous. I there state that the court was bound by the act of Parlia- 
 ment to reduce the amount of the bail to the value of the ship ; and I said, on the 
 other hand, that, ' supposing bail was given to an insufficient amount, the court 
 would raise it to the proper amount.' Now, that is an ambiguous expression. 
 I did not mean that it was possible to compel the individuals giving bail to exceed 
 the amount for which they had made themselves voluntarily responsible, — that 
 would be absurd ; but what I meant was, that the court would have a right to 
 require further security from those who owned the vessel. I mention that for 
 the purpose of preventing misapprehension hereafter." 
 
 ' The Steamboat City of Norwich, 1 Bened. Adm. 89. 
 
 * The Grand Para, 10 Wheat. 497. 
 
 ' It is said in Gierke's Praxis, by Hall, p. 13, that " the securities in admiralty, 
 though in the nature of recognizance, do not authorize the court to proceed 
 against lands." And this, we presume, is the rule in England. See Marriott's 
 Form. 273. By the old third rule of the first circuit, the sureties were obliged to 
 stipulate that the execution might run against their lands. Nothing is said on 
 this subject in the Rules of the Supreme Court, passed in 1842, but clearly the 
 lands of the defendant could not be attached under the 2d Rule, nor seized on
 
 CH. VII.] STIPULATIONS. 415 
 
 to the passage in 18G2, of a rule of the Supreme Court, which 
 allows this to be doiie.^ 
 
 And if the principal, in a suit which does not survive, dies, the 
 sureties should, regularly, suggest the death to the court, and pro- 
 cure an order for their discharge. 
 
 If any obligor to an admiralty stipulation die j^endente lite, the 
 court may proceed against the survivor, or at the option of the 
 plaintiffs against the representatives of the deceased also, and, in 
 one case, the vessel having been forfeited to the United States, 
 the court said that if the surety would bring the money into 
 court, it would, with the assent of the district attorney, allow 
 him to proceed against the principals in the bond and their 
 representatives in the name of the United States, to enforce his 
 indemnity .2 
 
 Stipulators are not discharged by an amendment, even though 
 no notice be given to them.^ 
 
 execution against the defendant under the 21st Rule. We should not sup- 
 pose that stipulators would be liable for more than the principal. In a case in 
 New York, it however seems to be assumed that the lands of the stipulators are liable. 
 The suit was in personam, and on judgment being obtained, an execution issued 
 against the real estate of the stipulator. The only questions made were 
 whether a judgment obtained in the southern district of New York, was a lien on 
 the land in any county of the district, and also whether it was necessary to file the 
 transcript of the judgment in the office of the clerk of the county in which the 
 lands were situated, and whether the statutes of the State applied. The court 
 answered the first question in the affirmative, and the last two in the negative. 
 Cropsey v. Crandall, 2 Blatchf. C. C. 341. See also Ward v. Chamberlain, 2 
 Black, 430, 9 Am. Law Reg. 171. And in 1860, it was held that the land was 
 liable. The Kentucky, 4 Blatchf. C. C. 450. 
 
 1 1 Black, 6. 
 
 * The Ship Octavia, 1 Mason, 149. This case, it will be perceived, was 
 decided before the new rules were passed, but we presume the law is the same 
 now. 
 
 ' In The Harmony, 1 Gallis. 125, is the following dictum of Story, J.: "I will 
 only add that a third objection made, that it might afi'ect the right of sureties on 
 the bond given for the property, has not been considered of weight in any cases 
 at common law. Where the property is delivered on bond, it is too much to con- 
 tend, that the rights of the court over it can be increased or diminished by that 
 circumstance. Every person so bailing the property is considered as holdino- it 
 subject to all legal dispositions by the court. A fortiori the objection would, with 
 great difficulty, find support in a court exercising admiralty jurisdiction. In 
 Newell V. Norton, 3 Wallace, 257, a suit in a cause of collision was brought in rem 
 against the vessel, and against the captain, owner, and pilot in personam. The
 
 416 ADMIRALTY PRACTICE. [BOOK III. 
 
 After a vessel has been given up to the stipulators, if the vessel 
 is arrested on other suits brought against her, it has been held 
 that the stipulators may, by petition to the court, be released from 
 their stipulations, and the vessel then will be held by the marshal 
 on the former warrant of arrest as well as on the latter. ^ Such 
 an application will not, however, be entertained by the court until 
 the process in the second case is returned to court.^ 
 
 By the practice of the English admiralty, sureties to a bail-bond 
 must not be partners ; and if a bond is given signed by partners, 
 the court will order the rearrest of the vessel.^ 
 
 SECTION III. 
 
 OF DELIVERY ON APPRAISEMENT. 
 
 We have already seen that the court may in certain cases order 
 property to be sold ; ^ and it may also, upon the application of the 
 claimant, order a delivery thereof to him, upon a due appraise- 
 ment^ to be had under the direction of the court, either upon the 
 claimant's depositing in court so much money as the court shall 
 order, or upon his giving a stipulation with sureties as the court 
 shall direct to abide by and pay the money awarded by the final 
 decree.^ 
 
 vessel was then delivered up on a bond being given in the usual way. An 
 amendment was afterwards allowed striking out the names of the owner and pilot, 
 and the suit proceeded against the vessel and master. It was held that the stip- 
 ulators were not discharged. In The Hypodame, 6 Wallace, 216, a libel was 
 filed claiming $ 6,000 damages. A stipulation was given in the sum of S 7,250. 
 A decree was rendered for over $ 7,500. Held, that on the libel being amended 
 a decree might be entered for the amount of the stipulation. 
 
 ^ The Jewess, 1 Bened. Adm. 21, n. 
 
 = The Empire, 1 Bened. Adm. 19. 
 
 * The Corner, Brow. & L. Adm. 161. 
 
 * See ante, p. 338. 
 
 * In The Cargo ex Venus, Law Rep. 1 Adm. 50, the property was delivered up 
 on appraisement. The owners afterwards sold it for a less amount, and claimed 
 that they were liable only for the proceeds of the sale ; but the court held that the 
 appraisement was conclusive. 
 
 * 10th Admiralty Rule.
 
 CH. VII.] STIPULATIONS FOR COSTS. 417 
 
 SECTION IV. 
 
 OF STIPULATIONS FOR COSTS. 
 
 By the ancient rules of admiralty, the plaintiff was required 
 to find fidejussores for the prosecution of the suit, for the payment 
 of the defendant's costs if the plaintiff should fail in the cause, 
 and for the production of the plaintiff personally as often as he 
 might be called.^ In England, this seems now to be confined to 
 the case of non-residents, and it is not then enforced when the de- 
 fendant has arrested sufficient property of the plaintiff in another 
 suit.^ In this country various rules have been enacted by the 
 different district courts on this subject. By the old seventh rule 
 of the first circuit, on motion of the defendant, the court would 
 oblige the plaintiff, except where the suit was for the United 
 States, on pain of dismissing the libel, to give a stipulation with 
 sureties to appear from time to time and abide all orders, etc., and 
 to pay all costs. But this rule was not applied where the libellant 
 was too poor to furnish a stipulation, and he was then admitted to 
 give the juratory caution ; but even this was not considered essen- 
 tial unless it was demanded by the defendant.^ 
 
 In the Southern District of New York, it was provided by Rule 
 Forty-Four, that no process in rem should issue, or appearance or 
 answer be received, or third party be permitted to intervene and 
 claim, except on the part of the United States, unless a stipulation 
 to pay costs was first entered into.* Seamen suing for wages for 
 services on board American vessels,^ and salvors bringing property 
 
 ^ Gierke's Praxis, tit. 14. 
 
 " See The Sophie, 1 W. Rob. 326 ; The Volant, id. 383 ; The Franz & Elize, 
 Lush. Adm. 377 ; The Wild Ranger, Lush. Adm. 553. In The D. H. Peri, Lush. 
 Adm. 543, it was held that a foreign plaintiff suing in i-em would be required to 
 give security of costs, but not security for damages as for a wrongful arrest of the 
 defendant's vessel. So held also in The Mary, Law Rep. 1 Adm. 335, which was 
 a cause of possession, although it was admitted to be the practice not to release a 
 vessel on bail in such a suit. 
 
 ' Polydore v. Prince, Ware, 402. 
 
 * The 44th Rule was formerly numbered 14. 
 
 ^ 45th Rule. This rule has been held not to apply to an agreement made by a 
 seaman with the master outside of the shipping articles, and the seaman in such a 
 case must file a stipulation for costs. The Great Britain, Olcott, Adm. 1. 
 VOL. II. 27
 
 418 ^ ADMIRALTY PRACTICE. J^BOOK HI. 
 
 into port are not required to give such security in the first in- 
 stance, but after the arrest of the property the court may order it 
 to be given for adequate cause shown. By a new rule established 
 in 1849, in suits in personam for wages under fifty dollars, the 
 usual stipulation is required, except in certain specified cases. 
 In the Northern District of New York, the rule is confined to 
 cases where the libellant is a non-resident, and does not apply 
 to suits for wages or for salvage when the salvors have come into 
 port in possession of the property libelled ; and the court has a 
 discretionary power to require a stipulation where the libellant is 
 a resident. 
 
 This subject is not provided for by the Kules of the Supreme 
 Court. 
 
 The practice not to call on seamen for security is only from a 
 presumption of their inability, and is not applied where this pre- 
 sumption disappears.^ 
 
 In respect to the liability of the defendant to give bail, the 
 Twenty-Fifth Rule of the Supreme Court provides " that in all cases 
 of libels in personam, the court may in its discretion, upon the 
 appearance of the defendant, where no bail has been taken and no 
 attachment of property has been made to answer the exigency of 
 the suit, require the defendant to give a stipulation with sureties 
 in such sum as the court shall direct, to pay all costs and expen- 
 ses, which shall be awarded against him in the suit upon the 
 final adjudication thereof, or by any interlocutory order in the 
 process of the suit." ^ In suits in rem the claimant, upon putting 
 
 ' Wheatley v. Hotchkiss, 1 Sprague, 225. The libel in this case was dismissed 
 without costs, and on the libellant claiming an appeal the respondent moved that 
 he be required to give security for costs. It appeared that the respondent had 
 recently paid the libellant over $400 in a suit for a tort. Judge Sprague said, 
 " that the practice of exempting seamen from giving security for costs, was 
 founded on their presumed inability. Any other person may sue in the admi- 
 ralty without giving security, upon proof of inability ; and a seaman may be 
 required to give security, if his ability is proved. This libellant has had one hear- 
 ing without giving security, and now upon his claiming an appeal, there is evi- 
 dence tending to show his ability to give security for costs, and he must stipulate 
 with surety for such costs as the appellate court may decree, unless he prove him- 
 self unable to do so by satisfactory affidavits." 
 
 ' This rule, it will be perceived, is limited by its terms to the case of an action 
 in personam, where no bail has been taken and no attachment of property has 
 been made, and the defendant has appeared. It would seem only to apply to the
 
 CH. VII.] STIPULATIONS FOR COSTS. 419 
 
 ill his claim, is obliged by the Twenty-Sixth Rule to file a stipulation 
 with sureties in such sum as the court shall direct, for the pay- 
 ment of all costs and expenses which shall be awarded against him 
 by the final decree of the court, or upon an appeal, by the appel- 
 late court. 1 The Thirty-Fourth Rule makes the same provisions 
 where a party intervenes in a case.^ 
 
 A stipulation for costs is not, however, essential to render a 
 claimant liable for fees for services rendered by the clerk of the 
 court, but he is liable for these from his relation to the suit as 
 dominus litis.^ 
 
 case where the party has appeared under the command of a monition, and this is 
 the view taken of it by Judge Bells, who accordingly held, that where a party is 
 arrested, he is not entitled to be discharged on giving bail to appear and pay all 
 costs, and to perform and abide all orders and decrees of the court in the cause, 
 and to deliver himself personally for commitment in execution thereof, but that 
 he must give a bond to satisfy the decree made 'against him. Gardner v. Isaac- 
 son, Abbott, Adm. 141. Judge Conkling, however, supposes that the rule applies 
 to the case where the defendant is arrested, and cannot get bonds to satisfy the 
 decree, and that he is then entitled to be liberated on giving a bond for the pay- 
 ment of costs. 
 
 ' In United States v. Sch. Lion, 1 Sprague, 399, which was a libel of informa- 
 tion against a fishing vessel alleging it was forfeited by violation of law in obtain- 
 ing the fishing bounty, no claim was put in or stipulations for costs given. It was 
 suggested that the owners from poverty were unable to give security for costs, 
 and requested the court to require the government to produce full proof of the 
 allegations in the libel. This request was granted on the owners filing an affi- 
 davit of ownership, inability to give a stipulation, and that they had a good 
 defence. " The affidavit must be equivalent to a claim and answer, and must 
 fully set forth the grounds of defence." 
 
 * In United States i'. Sch. Lion, 1 Sprague, 399, 401, a libel of information 
 against a vessel for forfeiture had been dismissed with a certificate of reasonable 
 cause. Some time before this the vessel had been sold, and the proceeds paid into* 
 the custody of the court. The owner was allowed to intervene without giving a stip- 
 ulation with surety for costs, there being no other claimant of the proceeds, and 
 no contestation on which costs could arise. 
 
 ^ In the Matter of Stover, 1 Curtis, C. C. 201.
 
 420 ADMIRALTY PRACTICE. [BOOK IH. 
 
 SECTION V. 
 
 OF THE POWER OF THE COURT TO ORDER DOCUMENTS TO BE 
 PRODUCED BEFORE ISSUE IS JOINED. 
 
 The practice of the court of chancery was formerly to require 
 the defendant, if he wished to inspect documents in the possession 
 of the plaintiff, to file a cross bill and pray for a discovery .^ In 
 one case, however, the court ordered an instrument to be pro- 
 duced for inspection ; ^ but this case is generally considered as of 
 but little authority, and has not been followed.^ The rule at 
 common law is that the defendant is entitled to inspect any instru- 
 ment in the possession of the plaintiff, which is the subject of the 
 action, and on which the plaintiff bases his claim.^ 
 
 The power of the court of admiralty in such cases has not, until 
 recently, been invoked, and no definite rule is to be found in the 
 text-books or in the earlier reports. In 1857, the question arose 
 whether, in a suit on a contract, which contract was partly in 
 writing and partly oral, a letter in the libellant's custody, and 
 which, it was alleged, was essential to the full understanding of 
 the contract, should be ordered to be produced on motion of the 
 defendant. The court said that if the whole contract had been in 
 writing, and the letter in question contained the whole contract, 
 the defendant would be entitled to have it produced, so, if, the 
 whole contract being in writing, the letter was a part of the writ- 
 ing, if it appeared that the rest of the contract was either produced 
 or within the control of the parties, and that there was no dispute 
 , as to what writings existed and were to be produced. But as the 
 contract was to be proved partly by written and partly by parol 
 
 ' Spragg V. Corner, 2 Cox, 109. 
 
 ' Princess of AVales v. Earl of Liverpool, 1 Swanst. 114. In this case an affi- 
 davit was made that a note of hand -which was in suit was believed not to be 
 genuine, and it was necessary, in order that the answer might fully meet the case, 
 that inspection of the note should be granted. 
 
 * See Shepherd v. Morris, 1 Beav. 175 ; Milligan v. Mitchell. 6 Simons, 186 ; 
 Penfold V. Nunn, 5 Simons, 405 ; Jones v. Lewis, 4 Simons, 324, overruling the 
 same case, 2 Simons & S. 242. 
 
 * See 3 Daniell's Ch. Practice, 2070.
 
 CH. VII.] JOWER OF COURT TO ORDER DOCUIIENTS. 421 
 
 evidence the court refused to require the libellant to produce the 
 letter.i 
 
 In a recent case in England,^ a motion was made by the claim- 
 ants in a salvage cause, for leave to inspect certain letters in the 
 possession of the owner of the salving vessel. The objection taken 
 was that the documents in question were privileged communica- 
 tions, and consisted of correspondence between the owner and his 
 agent, relating to the proceedings in the cause. Dr. Lushington. 
 said : " I have examined the cases at common law on this subject, 
 but the whole question appears to me to be in a state of darkness 
 and confusion. It would not be right for the court to order docu- 
 ments to be produced, of the contents of which it knows nothing. 
 I direct that the documents in question be produced for my inspec- 
 tion, and I shall then consider whether I ought to grant the 
 present application." 
 
 1 The Voyageur de la Mer, 1 Sprague, 372. The reasons given for the decision 
 are, that if the paper was produced, the defendants would obtain an advantage, as 
 they would learn the extent of the knowledge or ignorance of the other parties 
 as to the proofs of the contract, and without first answering as to their best 
 knowledge and belief, could frame their answers to meet the disclosures on one 
 particular point. 
 
 ^ The Macgregor Laird, Law Rep. 1 Adm. 307.
 
 422 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER VIII. 
 
 a 
 
 OF THE ANSWER. 
 
 According to established rules of practice in admiralty, before 
 the defendant can be heard in his defence, or make use of any of 
 his proofs, he must enter his appearance and contest the suit, 
 either by filing exceptions or answcrhig the libel. And if excep- 
 tions are taken and sustained, and the libel is amended by striking 
 out the objectionable matter, the defendant should then answer 
 the libel so amended. But, although until this is done, the de- 
 fendant has no standing in court, yet if the neglect to file an 
 answer was caused by ignorance, the court would undoubtedly 
 allow an answer to be filed after the time established by its rules, 
 and if, owing to the absence of the defendant, an answer could not 
 be filed, the proctor for the defendant would be allowed to make 
 any suggestions, and present any proper evidence as an amicus 
 curiae .^ 
 
 The answer should correspond with the libel. The caption 
 should state the court, the judge, the parties, and the kind of case, 
 with legal accuracy and in appropriate language. It should then 
 proceed to exhibit the defence, answering the libel, article by 
 article, in the same order as numbered in the libel, and should 
 answer in like manner each interrogatory propounded at the close 
 of the libel.2 What it admits, should be admitted unreservedly, if 
 possible, and not by way of hypothesis ; that is, not, if so and so, 
 then so and so.^ But where this is made necessary by the nature 
 
 ' Tlie David Pratt, "Ware, 495. 
 
 ' 2;th Adiniralty Rule. In The Sch. Boston, 1 Sumner, 328, 330, Sto?-t/, J., 
 said : " The answer should aecordingly reply to each article by a clear and exact 
 admission or denial, or defence to the matter of it." 
 
 ' Treadwell v. Joseph, 1 Sumner, 390. The charge was that the respondent 
 did with force and violence, without rightful cause or justification, order the libel- 
 lant to scrape down the masts of the ship for a long space of time, to wit, fourteen 
 hours, the wind then blowing heavily. The answer was " that the scraping of the 
 masts of a ship is a necessary duty," etc., •' and that (/ the libellant was employed
 
 CH. VIII.] THE ANSWER. 423 
 
 of the case, as where certahi facts are stated, of which the defend- 
 ant cannot know whether they are true or false, but which he 
 believes to be false, and has a perfect defence against them, if true, 
 we can see no sufficient reason why he may not state his belief, 
 and then his defence ; and why, if he supposes that they may be 
 true, he may not state this, and say, if true, then his defence is so 
 and so. Such we should believe to be within the allowed practice 
 of admiralty, for good cause shown, because there are here no 
 rules like those of special pleading. Both the libel and the an- 
 swer, and every other document in the case, must be as precise 
 and definite as the party can make it, consistently with the actual 
 facts of the case, or his actual knowledge, or his means of knowl- 
 edge of these facts. But further than this we do not know that 
 any rule or practice would carry the courts. 
 
 Every fact relied on in defence should be set forth with all due 
 form of time, place, and circumstances. ^ And where a new clause 
 in the shipping articles is relied on to repel a claim for wages, it 
 must be specially pleaded.^ 
 
 The defendant may rest upon mere denial of the plaintiff's alle- 
 gations, or upon new matter of his own ; and upon matters which 
 he asserts to be positively true, or upon those which he declares 
 to be true, according to his best knowledge. And every answer 
 should be verified by the oath or solemn affirmation of the defend- 
 ant,^ except where the sum or value in dispute does not exceed 
 
 in tliat manner, it was a part of the ship's duty, which the libellant was bound to 
 perform." It was held that a conditional answer of this nature was improper ; 
 that a party setting up the excuse or justification of any act must admit the ex- 
 istence of it. It was held also that the answer did not meet the gravamen of the 
 charge, because it was only the duty of the crew to scrape the masts at proper 
 times and seasons, and in a reasonable manner. 
 
 ^ Orne r. Townsend, 4 Mason, 541. In Pettingill v. Dinsmore, Daveis, 208, it 
 was held that if the master desired to show, in defence to an action for wages, 
 that the seaman was habitually careless, disobedient, or negligent, as a justifica- 
 tion or mitigation of damages, he should set it forth in his answer. In The Com- 
 mander In Chief, 1 Wallace, 43, the answer alleged that the vessel of the libellant 
 lay in an improper manner and in an improper place, without setting forth in 
 what manner she lay, or in what respect the manner was improper, and there was 
 no definite description of the place where she lay or any reasons assigned why it 
 was an improper anchorage. The opinion was expressed that the answer was too 
 indefinite to constitute a valid defence, but the point was not determined. 
 
 ^ Heard v. Rogers, 1 Sprague, 556. 
 
 ' 27th Admiralty Rule ; Gammell v. Skinner, 2 Gallis. 45. In an early case in
 
 42i ADMIRALTY PRACTICE. [BOOK III. 
 
 fifty dollars exclusive of costs, unless the district court shall be of 
 opinion that this is rendered necessary for the purposes of justice 
 owing to peculiar circumstances in the case before the court.^ 
 The defendant may also in his answer object to respond to any 
 allegation or interrogatory contained in the libel, which will ex- 
 pose him to any prosecution or punishment for a crime, or for any 
 penalty or any forfeiture of his property for any penal offence.^ 
 And the defendant may in his answer require tlie personal answer 
 of the libellant upon oath or solemn affirmation to any interroga- 
 tories wliich he may propound at the close of the answer, touching 
 any matters charged in the libel, or touching any matter of de- 
 fence set up in the answer, subject to the like exception as to 
 matters which shall expose the libellant to any prosecution or 
 punishment or forfeiture, as provided in the Thirty-First Rule. 
 And if the libellant does not duly answer these interrogatories, 
 the court may adjudge him to be in default, and dismiss the libel, 
 or may compel his answer by attachment, or take the subject- 
 matter of the interrogatory jwro confesso in favor of the defendant, 
 as it may in its discretion deem most fit to promote public justice.^ 
 If either the libellant or the defendant is out of the country, or 
 unable from sickness or other casualty to make an answer to any 
 interrogatory on oath or solemn affirmation at the proper time, 
 the court may in its discretion in furtherance of the due adminis- 
 tration of justice, dispense therewith, or may award a commission 
 to take the answer of the defendant when and as soon as it may 
 be practicable.^ The answer may be verified by the oath of the 
 agent or proctor of the respondent, who must also make oath that 
 
 this country it was held that where the libel required the answer to be under oath, 
 it required two witnesses to contradict the statements of the answer. Teasdale 
 V. Sloop Rambler, Bee, 9. But the more correct view is, that this doctrine has 
 no standing in admiralty. Cushman v. Ryan, 1 Story, 91, 102; Sherwood v. 
 Hall, 3 Sumner, 127 ; The Mary Paulina, 1 Sprague, 45, 48 ; Hutson v. Jordan, 
 Ware, 385 ; Andrews v. Wall, 3 How. 568, 572. And now that the answer is 
 required to be under oath by an express rule of court, the oath of course can 
 have no effect as evidence. Eads v. The Steamboat H. D. Bacon, 1 Newb. Adm. 
 274. It is also said in this last case that the answer under oath is of no more 
 effect although it is responsive to interrogatories propounded. 
 
 * Additional Admiralty Rule, passed Dec. Term, 1850, 10 How. vi. 
 
 * 31st Admiralty Rule. 
 ' 32d Admiralty Rule. 
 « 33d Admiralty Rule.
 
 CH. VIII.] THE ANSWER. 425 
 
 he has authority from the owner of the property, or was the lawful 
 bailee thereof at the time of the arrest. 
 
 There is nothing in admiralty which answers precisely, in form, 
 or in its technicalities to the plea in abatement,^ or demurrer,^ or 
 exceptions of common-law courts. But so far as these are of sub- 
 stance they exist and must exist in the practice of all courts.^ 
 Exceptions to the libel are often filed under that name, and are 
 provided for, as to the time and manner of filing, notice, answer, 
 or confession, etc., by the rules of some of our courts.* They go 
 usually to the jurisdiction of the court, or to the insufficiency 
 of the libel, either in point of form or of substance ; or to its being 
 multifarious, as embracing distinct and independent causes of 
 action, which cannot be united in the same proceeding.^ But, 
 with or without using the word " except," or " exception," the 
 defendant in his answer may object to the libel that it is frivolous, 
 unintelligible, impertinent, or otherwise improper, and if his ob- 
 jection be grounded in fact and reason, the court will order a 
 further libel, or decree against the libellant generally, or make 
 such other order or disposition of the case as justice may require. 
 
 So, the defendant may say in his answer, that the court has no 
 ■jurisdiction of the case,^ or that it has been judged and determined 
 
 ^ Defences which do not go to the merits of the case should, however, properly 
 be made by a plea. They may be set up in the answer, but only by a distinct 
 allegation. The Platina, U. S. D. C. Mass., 1858, 21 Law Rep. 397. 
 
 ^ But in Manro v. Almeida, 10 Wheat. 473, the case came before the court on 
 a demurrer to a libel. Nothing, however, is said of a demurrer in the new admi- 
 ralty rules. 
 
 * See Knight v. The Attila, Crabbe, 330. 
 
 * The 36th Rule of the Supreme Court provides that " exception may be taken 
 to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or 
 scandal, and, if upon reference to a master, the exception shall be reported to be 
 so objectionable, and allowed by the court, the matter shall be expunged at the 
 cost and expense of the party in whose libel or answer the same is found." 
 
 ^ The David Pratt, Ware, 495. The case is said to have first come before the 
 court on an exception to the libel in the nature of a demurrer. Pratt v. Thomas, 
 Ware, 427. 
 
 ' In Teasdale v. Sloop Rambler, Bee, 9, it was held that a plea to the 
 jurisdiction must be by the party himself, and under oath. At the present day 
 very little formality is necessary to bring the question of jurisdiction before the 
 court. No provision is made for it in the Admiralty Rules, and no uniformity of 
 practice exists. The doctrine of the Supreme Court has always been that consent 
 cannot give jurisdiction, and if the want of jurisdiction is brought before the court
 
 426 ADMIRALTY PRACTICE. [BOOK III. 
 
 elsewhere,^ by a court having jurisdiction ; or settled by compro- 
 mise carried into effect, or that the court or the parties are 
 
 in any manner, either by the respondent, or is perceived by the court itself, the 
 suit will be dismissed. Thus in Cutler v. Rae, 7 How. 729, the case came before 
 the Supreme Court on an appeal on its merits, and the respondent made no ob- 
 jection to the jurisdiction, but the court ordered the question of jurisdiction to be 
 argued, and afterwards dismissed the libel. See also Gruner v. The United 
 States, 11 How. 163 ; Montgomery v. Anderson, 21 How. 386 ; Ballance v. For- 
 syth, 21 How. 389. In Wilson v. Graham, 4 Wash. C. C. 53, there was a plea to 
 the jurisdiction and a demurrer to the plea. In Vandewater v. Mills, 19 How. 
 82, the objection to the jurisdiction was taken by an exception to the libel. In 
 Jackson v. Steamboat Magnolia, 20 How. 296, the question of jurisdiction was 
 raised on an agreed statement of facts. The objection is also very often taken in 
 the answer. Dean v. Angus, Bee, 369 ; Bogart v. The John Jay, 17 How. 399 ; 
 The Genesee Chief v. Fitzhugh, 12 How. 443; Waring v. Clarke, 5 How. 441. 
 And it is sometimes presented by a motion to dismiss the libel. The Bee, Ware, 
 332 ; Nelson v. Leland, 22 How. 48. The question may also come before the Su- 
 preme Court by means of a writ of prohibition to the district court. See ante, 
 p. 193. 
 
 In England, the usual way of bringing up the question has been by a protest to 
 the jurisdiction, but it has been doubted whether this is the proper way of bring- 
 ing the question before the court. The Alexander, 1 W. Rob. 288, 293. 
 
 ^ In Taber v. Jenny, 1 Sprague, 315, the answer set up an award of referees 
 as a bar to the libel, but as it appeared that one of the referees had prejudged the 
 cause, and the umpire had not heard the parties, but had made up his mind from 
 statements made by the referees, the award was set aside. And when a plea of 
 res adjudlcaia is made, the record of the former judgment should show that the 
 very question, the precise title of which is the subject of litigation in the new 
 action, was involved and decided in the former action, and not merely that it 
 might have been. The Vincennes, U. S. D. C, Mass., TFa?-e, J., 21 Law Rep. 616. 
 In The Clarence, 1 Spinks, 206, a verdict obtained at common law by the 
 owners of the Clarence against the libellants, was pleaded but overruled. The 
 case was then taken to the Privy Council, and at the hearing, Lord Justice Knight 
 Bruce expressed his surprise that the matter could be again litigated, and inti- 
 mated that if the judgment in the common-law court had been pleaded, it would 
 have been a bar to the action. 1 Spinks, 209, note. 
 
 And in Goodrich v. The City, 5 Wallace, 566, it was held that where a matter 
 is directly in issue and adjudged in a court of common law, that judgment may 
 be set up as an estoppel in a court of admiralty. In this case, a judgment ob- 
 tained by the defendant at common law was pleaded in bar of a suit in admiralty 
 against tlie same defendant by the same plaintiff for the same cause of action. 
 In The John & Mary, Swabey, Adm. 471, Dr. Lusldnglon held that where a 
 plaintiff sued in a cause of collision at common law and recovered a verdict, he 
 was entitled afterwards, if the defendant proved insolvent, to sue the ship in 
 admiralty, even though she had been transferred to a third party. So held also
 
 CH. VIII.] THE ANSWER. 427 
 
 wrongly named, or the action wrongly brouglii. All of these, and 
 more, would be included in pleas of abatement ; and being stated 
 in the answer, the court will, if they are not denied, decree for 
 defendant, or order an amendment of the libel, or take some other 
 proper course. And if the answer admits all the facts stated in 
 the libel, and then denies their sufficiency in law to make out the 
 libellant's case, this, which is in substance a demurrer, would be 
 judged of like any other answer, upon its substantial merits. It 
 should be added, however, that while a want of jurisdiction aris- 
 ing from the subject-matter of the action, is fatal if brought to the 
 notice of the court at any stage,^ yet, if it be merely a personal 
 exemption, the court are strongly disposed to regard an appear- 
 ance, and answer as a waiver of this objection.^ 
 
 A suit may be brought in a State court and discontinued, and 
 a suit then brought on the same cause of action in admiralty.^ 
 The pendency of another action for the same cause, in a foreign 
 court, is not a good plea in abatement, even at common law, and 
 a State court is foreign in respect to a United States court for this 
 purpose.* The plea should also show that the other court has 
 
 in The Bengal, Swabey, Adm. 468, in a suit for wages. In Lang v. Holbrook, 
 Crabbe, 179, it was held that where a foreign court, not of admiralty, had de- 
 cided a case on different principles from those recognized in this country, and lead- 
 ing to a different result from what would be here arrived at, though professedly 
 deciding according to our law, a court of admiralty in this country was not bound 
 by it, although the suit was by the same plaintiff against the same defendant and 
 for the same cause of action. In Sarchet v. The Sloop Davis, Crabbe, 185, it was 
 held that a judgment or dismissal of a libel in order to be a bar of a second suit, 
 must have been ordered upon a hearing of the parties, or on the merits of the 
 cause, and that a dismissal for want of appearance was not a conclusive judg- 
 ment. 
 
 * See Cutler v. Rae, 7 How. 729, cited in the preceding note. The objection 
 must, however, be taken before the case is remanded by the Supreme Court. 
 Washington Bridge Co. v. Stewart, 3 How. 413; Whyte v. Gibbes, 20 How. 
 541. 
 
 * Thus a defective summons is cured by the appearance of the party. Prank- 
 ard V. Deacle, 1 Hagg. Eccl. 169, 185. The admiralty court of one country is not 
 bound, as we have seen, to exercise jurisdiction in suits between foreigners, but as 
 it may do so, an objection to the jurisdiction should be made before entering 
 an appearance, and answering to the merits of the case. The Bee, Ware, 332 ; 
 The Bilbao, Lush. Adm. 149 ; See also ante, p. 406. 
 
 ' Bingham v. Wilkins, Crabbe, 50. 
 
 * White V. Whitman, 1 Curtis, C. C. 494. See also Wadleigh v. Veazie, 3
 
 428 ADMIRALTY PRACTICE. [BOOK III. 
 
 jurisdiction of the suit, and it should be verified by affidavit, if any 
 matter of fact is contained in it.^ 
 
 If the defendant makes an error, and even a material one, in 
 his answer, he may correct it by a supplemental answer, or by an 
 amendment ; and the adverse party will not be permitted to profit 
 by it, if the error has been made innocently, and not as a trap. 
 
 When the libellant relies on new matter in avoidance of the 
 defence set up in the answer, he should not put it in issue by a 
 replication as formerly, but by an amended libel.^ 
 
 It is said that there must be no double pleading in admiralty, 
 and from what we have said, it is obvious that there need be 
 none. But if there are distinct counts in the libel, properly stated, 
 each of them should receive each its adequate and appropriate 
 answer. 
 
 Sumner, 165; Lyman v. Brown, 2 Curtis, C. C. 559. In The Lanarkshire, 2 
 Spinks, 189, a suit in rem against the vessel was brought in England for sea- 
 men's wages. A plea that the men had commenced a suit against the master in 
 Canada for the same cause of action was held a good plea. 
 
 1 White V. Whitman, 1 Curtis, C. C. 494. 
 
 ' 5 2d Admiralty Rule. See also Taber v. Jenny, 1 Sprague, 315 ; Gladding v. 
 Constant, 1 Sprague, 73.
 
 CH. IX.] AMENDMENTS. 429 
 
 CHAPTER IX. 
 
 OF AMENDMENTS. 
 
 Amendments in matters of form may be made at any time, on 
 motion to the court, as of course. And new counts may be filed, 
 and amendments in matters of substance may be made upon mo- 
 tion at any time before the final decree, upon such terms as the 
 court shall impose, " And where any defect of form is set down 
 by the defendant upon special exceptions, and is allowed, the court 
 may, in granting leave to amend, impose terms upon the libel- 
 lant." ^ Under this rule it has been held that if the amount 
 
 ' 24th Admiralty Rule. This rule begins, "In all informations and libels in 
 causes of admii-alty and maritime jurisdiction, amendments, etc. This is the only 
 rule relative to amendments, and we should suppose it would apply to amend- 
 ments of answers as well as of libels. It may be well to state the former practice 
 of the courts in respect to amendments. In the Supreme Court it has been held 
 that the court will not allow an amendment which sets up a new subject of con- 
 troversy. In the Superior Court of a county in Florida, sitting as an admiralty 
 court, a claim had been made for salvage, and by a process m rem, seventy-two 
 bales of cotton were attached, and condemned. The claimant appealed, but the 
 llbellant did not. In the next highest court, the court of appeals, the libellant 
 had leave to amend by claiming fifty more bales. On appeal to the Supreme 
 Court it was held that the claim for the fifty bales being a new subject of contro- 
 versy, the court of appeals had no authority to allow the amendment. Houseman 
 V. Schooner North Carolina, 15 Pet. 40. In The Schooner Harmony, 1 Gallis, 
 123, an amendment by inserting a new substantive offence was disallowed, on the 
 sole ground that the statute of limitations had run against it. In The Marianna 
 Flora, 1 1 Wheat. 1 , an amendment as to a matter of substance was held to be 
 correctly allowed in the circuit court on appeal from the district court. In The 
 Sch. Boston, 1 Sumner, 328, 331, Story, J., said: "It is the well-known usage of 
 admiralty courts, even after an appeal, in fit eases, in their discretion, to allow either 
 party to file new allegations and proofs ; non allegata allegare, et non probata 
 prohare." Facts, material to the defence having come to the knowledofe of the 
 claimants after an appeal, they were allowed to file a supplementary answer. 
 See also The Edward, 1 Wheat. 261 ; Schooner Adeline, 9 Cranch, 244. In 
 Coffin {-•. Jenkins, 3 Story, 108, decided the year before the new admiralty rules 
 were adopted, the respondent moved in the circuit court for leave to file an 
 amendment to his answer setting up a new point of defence, which had not been
 
 430 ADMIRALTY PRACTICE. [BOOK III. 
 
 demanded in the inferior court is not sufficient to justify an ap- 
 peal, the Hbellant cannot amend by adding a claim for interest. ^ 
 
 The application of the above rule to the amendment of an 
 answer in the circuit court on appeal from the district, has been 
 considered at length by a distinguished jurist, and we state his 
 conclusions in his own words in our note.^ It has been held that 
 
 taken in the district court, namely : that in the whale fisheries the master was not 
 liable for lays, and that an action could be brought only against the owners or 
 other agents in possession of the proceeds of the voyage. The amendment was 
 not allowed, on the ground that the facts on which it rested were not new or 
 newly discovered, and Story, J., said: "The rule, in appellatione a sententid 
 dejinidva licet non allegata allegare et non probata probare, has many limitations, and 
 requires many." In Schooner Anne v. The United States, 7 Cranch, 570, it was 
 held that a libel could be amended after reversal for the want of substantial aver- 
 ments. 
 
 ' Udall V. Steamship Ohio, 17 How. 17. 
 
 2 Lamb v. Parkman, U. S. C. C. Mass., per Curtis, J., 21 Law Rep. 589. After 
 stating that the 24th Admiralty Rule applied to the circuit as well as to the district 
 court, and that it was left to the sound discretion of the court in every case, or 
 rei^ulated by rules of practice, as to what amendments should be allowed, under 
 what circumstances, and supported by what proofs they should be applied for, 
 and in what form incorporated into the record, the learned judge said: "In this 
 court there are no such written rules ; but there are courses of decision In similar 
 or analogous cases, which afford proper guides to the exercise of the discretion of 
 the court. Some of these will be adverted to. 
 
 " The first is, that leave is given to amend a sworn answer In respect to any 
 matter of substance, with great caution ; and where the amendment consists in a 
 denial of a f\ict previously admitted, or In the allegation of new facts amounting 
 to a new defence, not exhibited In the court of the first Instance, I must require 
 the grounds for the amendment, and the reasons why It has become necessary, 
 and why its necessltj' was not earlier known, to be clearly and satisfactorily 
 shown by alTidavIt. 
 
 " Second. Each of the proposed changes in the answer should be exhibited 
 separately, with apt references to the original answer, so that it can be seen how 
 the original answer will be affected by each ; and so that each, when allowed, can 
 be incorporated Into the original answer, when taken into a new draft as an 
 amended answer. 
 
 " Tlfinl. The respondent will not be allowed to require formal proof of writ- 
 ten documents, the autlienticity of which was admitted by the original answer, 
 without an affidavit denying the signatures, and explaining satisfactorily his 
 former admission ; nor to require the production of original papers, copies whereof 
 were admitted by the original answer to be correct, and were used on the trial in 
 tlie district court, without showing that such originals are in the possession or 
 under the control of the Hbellant, and can be produced without causing delay, and 
 that the production of such originals is material.
 
 CH. IX.] AMENDMENTS. 431 
 
 the form of an action cannot be allowed to be changed by an amend- 
 ment. Thus, if a possessory suit is brought according to the rule 
 of the Supreme Court, by a suit in rem and a monition to the parties, 
 the libellant cannot amend so as to proceed in personam against the 
 respondent for damages for a non-performance of contract.^ 
 
 But while it is undoubtedly true that an appellate court has not 
 this power,2 it seems that the district court can make such an 
 amendment, and that the appellate court can remand the case that 
 such an amendment may be made. Thus it has been held that if 
 a suit is improperly brought against a vessel in rem, and the owner 
 in personam, the district court may allow an amendment striking 
 out the name of the owner.^ And where a libel was brought on the 
 instance side of the court, which, should have been brought in 
 prize, the cause was remanded with directions to allow a libel in 
 prize to be filed.'* So if a libel is improperly brought in prize, the 
 property will not be restored until an opportunity is given to file a 
 libel on the instance side of the court, if the facts before the court 
 show that such a libel could be maintained.^ 
 
 If a party has lost hie interest in a suit, his name may on mo- 
 tion be stricken from the record.^ 
 
 It has been held that an appellee, who was the libellant in the 
 district court, may in the circuit court amend his libel so as to 
 
 " Fourth. "When an amendment seeks to withdraw an admission of a matter of 
 fact, upon the ground that it was made because the respondent mistook the law, 
 the court will permit it with great caution, and only under extraordinary circum- 
 stances, if ever. (See Daniell's, Ch. Pr. 913.) 
 
 '' Fifth. The court will not allow a defendant to recast his entire answer, after 
 he has discovered from the opinion of the district court, how it may successfully 
 be done, so as to shift the burden of proof, or obtain, by skilful pleading, other 
 legal advantages. (Calloway v. Dobson, 1 Brock. C. C. 122.) Amendments in 
 sworn answers in the appellate court should introduce new substantive facts, pre- 
 viously unknown, or correct substantial mistakes in matters of fact, and cannot be 
 allowed on account of any mere defect of skill in drafting the original answer, in 
 consequence of which the respondent's case was not presented on the record in 
 the best possible manner, or so as to secure to him all possible legal advantages." 
 
 1 Kynoch v. The S. C. Ives, 1 Newb. Adra. 205. • 
 
 2 The John Jay, 3 Blatchf. C. C. 67. 
 
 * Newell V. Norton, 3 Wallace, 257. 
 
 * Jecker v. Montgomery, 13 How. 498. 
 
 5 Alexander's Cotton, 2 Wallace, 404 ; United States v. Weed, 5 id. 62 ; The 
 Watchful, 6 id. 91. 
 « The Falcon, 4 Blatchf. C. C. 367.
 
 432 ADMIRALTY PRACTICE. [BOOK III. 
 
 claim damages above the costs for the vexatious delay caused by 
 the appeal. 1 We are unable, however, to see upon what principle 
 of law this case proceeded. 
 
 Motions, petitions for adding or subtracting parties, for distribu- 
 tion, sale, or any incidental purposes, are received by the court in 
 admiralty with great freedom, nor is it held any objection to an 
 amendment tliat the rights of sureties may be affected, for they 
 take upon themselves all the liabilities of their principals.^ 
 
 The Rules of the court seldom interfere with proceedings of this 
 nature, and it may be said that they are always admitted where 
 substantial justice requires them. Thus a salvor, not joining with 
 the rest, nor knowing his rights or claims, has been permitted to 
 file a petition after the case had been decided, and a decree of dis- 
 tribution rendered, and distribution made ; and he was then 
 ordered a share out of the balance of proceeds which, not having 
 been paid over to the claimant, remained in the custody of the 
 court.^ It should, however, be remarked that if a case in admi- 
 ralty be taken by appeal to the Supreme Court, no new claim, nor 
 libel, nor substantial amendment, can be admitted there, because 
 the question it may raise cannot be examined and determined 
 there as it might have been below. If it be a case of forfeiture, 
 and the libel is so defective that a decree cannot be pronounced, 
 the Supreme Court will send the case back to the court below, that 
 it may be there amended. And generally, if an amendment be 
 offered in the Supreme Court, the cause will be remanded to the 
 circuit court, that the amendment may there be made.* 
 
 * Weaver v. Thomson, 1 Wallace, C. C. 343. 
 
 * See ante, p. 415, n. 3. 
 
 ^ Ryan v. Ship Cato, Bee, 241. The petitioner in this case found the vessel a 
 derelict, took her in tow for two days, and finally anchored her nearly in sight of 
 Charleston lighthouse, and then went to Charleston for assistance. When he 
 returned, he found that the vessel had gone adrift, and was afterwards picked up 
 by other persons. The petition also set forth that the petitioner had no knowledge 
 that any suit had been commenced, no monition having issued, until the decree 
 ■was made. It appeared that the agents of the underwriters and owners appeared 
 and suggested that no monition was necessary, and none was issued, and that the 
 property was sold at Edisto Island with their consent, instead of having been 
 brought to Charleston. Under these circumstances, the court decreed $ 200 
 from the owners' sliare of the proceeds, after the salvage had been decreed. 
 
 * Brig Caroline v. The United States, 7 Cranch, 496 ; The DIvina Pastora, 4 
 Wheat. 52 ; The Mary Ann, 8 Wheat. 380. See ante, p. 431.
 
 CH. X.] SET-OFFS AND CROSS LIBELS. 433 
 
 CHAPTER X. 
 
 OF SET-OFPS AND CROSS LIBELS. 
 
 If the respondent has a claim against the libellant, he can in 
 many cases avail himself of it in his answer, as a set-off. The 
 admiralty has no jurisdiction of an independent set-off,^ and those 
 usually allowed are where advances have been made upon the 
 credit of the particular debt or demand for which the plaintiff 
 sues, or which operate by way of diminished compensation for 
 maritime services, on account of imperfect performance, miscon- 
 duct, or negligence, or as a restitution in value for damages sus- 
 tained in consequence of gross violations of the contract.^ A loss 
 arising from the gross neglect of a mariner may be set off in 
 answer to a demand for wages.^ If an action is brought for 
 freight, it is held that damage done to the goods may be set off.* 
 So freight is to be deducted, if the suit is for damage done to the 
 goods.^ 
 
 A set-off, founded on a contract, express or implied, is no de- 
 fence to a libel in a cause of damage. But in a suit by a parent 
 for the wrongful abduction of his minor son, where the damage is 
 substantially the loss of service, the court is not absolutely pre- 
 
 * Willard v. Dorr, 3 Mason, 161, 171, In The Lady Campbell, 2 Hagg. Adm. 
 14, n., a suit was brought by a purser for his wages. The owners of the vessel 
 claimed to set off a sum due for the passage of the purser's wife, but the court 
 refused to allow it. In Dexter v. Munroe, 2 Sprague 39, a master and co-owner 
 of a whaling vessel sued the other owners for his wages. It was agreed that in 
 his capacity as owner he was indebted to the other owners, but it was not shown 
 that this indebtedness was either by agreement or usage connected with the con- 
 tract of hiring. Held, that the demand against him could not be set oif against 
 his claim for wages. 
 
 " Willard v. Dorr, 3 Mason, 161, 171. See also The Mentor, 4 Mason, 84. 
 ' The New Phoenix, 2 Hagg. Adm. 420. 
 
 * Bearse v. Ropes, 1 Sprague, 331 ; Snow v. Carruth, 1 Sprague, 324; Thatcher 
 V. McCuUoh, Olcott, Adm. 365 ; Bradstreet v. Heron, Abbott, Adm. 209 ; Zerega 
 V. Poppe, id. 397 ; Kennedy v. Dodge, U. S. D. C. New York, S^tpma/i, J., 1867. 
 
 * See cases ante. Vol. I. p. 207, n. 1. 
 
 VOL. II. 28
 
 434 ADMIRALTY PRACTICE. [BOOK HI. 
 
 eluded from considering, in determining the amount of damage, 
 the advances of clothing and other necessaries furnished the minor 
 during the time.^ 
 
 It would seem that if the set-off is more than the amount sued 
 for, the respondent cannot have a decree for the balance,^ nor can 
 he afterwards bring a suit for the balance,^ and on this account a 
 cross libel is often filed, in which case the court, if there is no 
 inexcusable delay in bringing the cross suit, will delay the execu- 
 tion in the original case till the other is heard.* 
 
 It has been said that where a cross libel is filed, process should 
 be taken out and served in the usual way, and that an agreement 
 of counsel that the answer of the respondents in the original suit 
 should operate as a cross libel, is irregular, and ought not to 
 receive countenance.^ 
 
 ' The Platina, U. S. D. C. Mass., 1858, 21 Law Rep. 397. 
 
 * Snow V. Carruth, 1 Sprague, 324 ; Kennedy v. Dodge, U. S. D. C. New York, 
 1867, Shipman, J. 
 
 * Bearse v. Ropes, 1 Sprague, 331 ; Nichols v. Tremlett, 1 Sprague, 361 ; Ken- 
 nedy V. Dodge, U. S. D. C. New York, 1867, Shipman, J. 
 
 * Nichols V. Tremlett, 1 Sprague, 361. See The North American, Lush. Adm. 
 79. 
 
 * Ward V. Chamberlain, 21 How. 572.
 
 CH, XI.] EVIDENCE IN ADMIRALTY. 435 
 
 CHAPTER XI. 
 
 OF THE TRIAL AND ITS INCIDENTS. 
 
 SECTION I. 
 OF THE TRIAL GENERALLY. 
 
 There is seldom much delay in bringing any suit in admiralty 
 to a trial, beyond that which the actual circumstances of the case, 
 as the distance of witnesses, or other facts of like kind, may re- 
 quire. There must be, by law, four stated terms of the courts in 
 the year, at places and times prescribed by law, and there may be 
 others at such other times and places as the respective judges 
 shall think proper.^ In our largest cities these courts are held 
 very frequently, sometimes every week, and much of the business 
 of the court is transacted by the judge, out of court, or at a special 
 court held for the purpose, as the convenience of the parties, and 
 the nature of the case, may require. 
 
 SECTION II. 
 
 or evidence in admiralty. 
 
 The trial very frequently proceeds upon the libel and answer. 
 The answer, though under oath, does not require two witnesses to 
 contradict it, as we have seen.^ And we should say, without any 
 doubt, that although the answers' of the respondent to the inter- 
 rogatories contained in the libel are evidence in the case,^ yet 
 they are not of more effect than any other evidence, and, if in his 
 
 1 Act of 1789, c. 20, § 3, 1 U. S. Stats, at Large, 74. 
 * See ante, p. 423, n. 3. 
 
 ' The David Pratt, Ware, 495. This was a suit in jyersonam, and not in rem, 
 as the title would indicate.
 
 436 ADMIRALTY PRACTICE. [BOOK III. 
 
 favor, should be received with caution, as coming from an inter- 
 ested party. It has been held that if the facts alleged in the libel 
 are not denied in the answer, they are not, therefore, to be taken 
 as confessed.^ But as the Twenty-Seventh Admiralty Rule provides 
 that the answer shall be full and explicit, we should suppose that 
 the contrary would now be considered as the more correct rule.^ 
 A claim, though under oath, is not evidence.'^ 
 
 It may be doubtful whether a libel filed by a party to another 
 suit can be given in evidence against him as his confession. But 
 if he brought the suit as trustee and recovered, the cestuis que trust 
 may put the whole record in evidence to show the recovery and 
 the title on which it rested.* 
 
 The 34th section of the judiciary act^ provides, " That the laws 
 of the several States, except where the Constitution, treaties, or 
 statutes of the United States shall otherwise require or provide, 
 shall be regarded as rules of decision in trials at common law in 
 the courts of the United States, in cases where they apply." This 
 act does not, however, include cases in admiralty, and, until the 
 passage of recent statutes, interested witnesses were excluded, ex- 
 cept in cases of necessity.^ And in a suit in rem against the ves- 
 sel, to recover the value of the goods, the master is considered as 
 an interested witness, but a release from some of the part-owners 
 renders him competent.''' So if the suit is m personam.^ An ob- 
 jection to the interest of the master should be made at the hear- 
 ing, and if not made until the argument, it is too late.^ 
 
 In 1862, an act was passed providing that " The laws of the 
 
 ^ Clarke i-. Brig Dodge Healy, 4 Wash. C. C. 651, 655. It was contended that 
 the rule was the other way, but Mr. Justice WasJdngton said: " This is a doctrine 
 as novel as it is untenable." 
 
 ^ See The Peerless, in P. C, Lush. Adm. 103. This case also decides that con- 
 clusions drawn from certain regulations set up in the pleadings and not denied, 
 were not thereby to be considered as admitted, they being deemed conclusions of 
 law, and not of fact. 
 
 ' Sch. Thomas & Henry, 1 Brock. C. C. 367. 
 
 * Church V. Shelton, 2 Curtis, C. C. 271. 
 
 » Act of 1789, c. 20, § 34, 1 U. S. Stats, at Large, 92. 
 
 • The Independence, 2 Curtis, C. C. 350 ; The Wm. Jarvis, 1 Sprague, 485. 
 ' The Peytona, 2 Curtis, C. C. 21. 
 
 ' Swett V. Black, 1 Sprague, 574. 
 » Nelson v. Woodruff, 1 Black, 156.
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 437 
 
 State in which the court shall be held shall be the rules of decis- 
 ion, as to the competency of witnesses in the courts of the United 
 States, in trials at common law, in equity and admiralty." ^ In 
 1864, it was provided, " That in the courts of the United States 
 there shall be no exclusion of any witness on account of color, nor 
 in civil actions, because he is a party to, or interested in, the issue 
 tried." 2 And in' 1865,^ this act was amended by a proviso, 
 " That in actions by or against executors, administrators, or guar- 
 dians, in which judgment may be rendered for or against them, 
 neither party shall be allowed to testify against the other as to any 
 transaction with, or statement by, the testator, intestate, or ward, 
 unless called to testify thereto by the opposite party, or required 
 to testify thereto by the court." * 
 
 > Act of 1862, c. 189, 12 U. S. Stats, at Large, 588. 
 
 ■ Act of 1864, c. 210, § 3, 13 U. S. Stats, at Large, 351. 
 
 3 Act of 1865, c. 113, 13 U. S. Stats, at Large, 533. 
 
 * The effect of the last clause of this statute was considered at length in the 
 case of Robinson v. Mandell, U. S. C. C. Mass., Nov. 1868. An application was 
 made to the court by the complainant in a suit in equity that she should be allowed 
 to testify. Clifford, J., said : " Such an application is doubtless addressed to the 
 discretion of the court, but it is a legal discretion, and our opinion is that the 
 court, in granting or refusing the application, ought to be governed as far as prac- 
 ticable by certain fixed rules, to be applied in all similar cases. Intrinsic diffi- 
 culty, it is apprehended, may arise in every attempt to define such general rules, 
 and perhaps it would be unwise to make any such attempt, except when an appli- 
 cation is before the court calling for the decision of the court under the power 
 conferred by the act of Congress. New as the provision is, and called upon as 
 the court is for the first time to determine its true meaning, the court is not dis- 
 posed to go one step beyond what the necessities of the present case require. 
 Viewed as a whole, the several acts of Congress in relation to the competency of 
 witnesses indicate an intent on the part of Congress so to legislate that the evi- 
 dences of title to real estate and the rules of decision in all controversies affecting 
 rights of property shall be the same in the federal courts as in the State courts of 
 the same State and district, and the decisions of the Supreme Court throughout the 
 peiiod since its organization tend strongly to the same end. Impressed also with 
 the conviction that that course of legislation and of decision has been highly bene- 
 'ficial, we are of the opinion that the court ought not to grant such an application 
 under the provision in question in any case where the effect of granting it would 
 be to adopt a rule of decision in the federal courts of the district different from 
 that which the legislature of the State has prescribed for the government of the 
 State courts in all similar cases. Where an executor or administrator is a party, 
 the other party, under the law of the State, cannot be admitted to testify in his 
 own favor unless the contract in issue was originally made with a person who is
 
 438 ADMIRALTY PRACTICE. [BOOK III. 
 
 Declarations of the master concerning the contract of affreight- 
 ment are admissible in a suit against the owners, though they are 
 not strictly part of the res gestce.^ But declarations of the other 
 officers and of the crew are not admissible, and this has been so 
 held in a case where the alleged declarations were made by the 
 mate in regard to a collision, he being in charge of the deck at 
 the time.'^ 
 
 Where suits by rival salvors are heard together, Dr. Lushington 
 has held that the proper course of proceeding is for the witnesses, 
 called by one set of salvors, to be cross-examined first on behalf of 
 the other salvors, and then on behalf of the defendants.^ 
 
 In England, it has long been the custom for the judge in cases 
 of collision at the hearing of the cause to be assisted by two or 
 more masters of the Trinity House, who give their opinion which 
 vessel is in fault.^ This opinion, though not binding on the court, 
 is usually followed. In this country we have no such practice, 
 generally ; ^ but it was at one time customary in the Massachusetts 
 
 living and competent to testify, and this court decides that in such a case the 
 court will not pass an order in a controversy respecting property requiring the 
 living party to testify in his own favor to any transaction with or statement by 
 the testator or testatrix, intestate or ward, as the case may be. Obviously the 
 case at bar falls within that rule, and the decision of the court is that the com- 
 plainant is not a competent witness in this case to testify to any transaction with, 
 or statement by, the said testatrix, and that all such parts of her deposition as fall 
 within that rule are rejected as inadmissible." 
 
 This case involved a large amount of property, and the learned judge carefully 
 limits the rule to cases of that nature. How far the same rule would be adopted 
 in admiralty is uncertain. 
 
 1 The Enterprise, 2 Curtis, C. C. 317. 
 
 * The Act£eon, 1 Spinks, 176. See also cases ante, Vol. I. p. 537. 
 « The Philadelphia, Brow. & L. Adm. 28. 
 
 * In The Swanland, 2 Spinks, 107, Dr. Lushington, addressing the Trinity 
 Masters, said : " When a common-law judge has summed up the case to the jury, 
 his duty is discharged; the jury give their verdict. But unfortunately for me, I 
 have not only to state the evidence to you, but whatever decision or opinion you 
 may give to me, to that opinion I must be an assenting party, in order to found a 
 judicial decision thereon." 
 
 * It would seem that a practice similar to the English, obtains in Pennsylvania, 
 for Judge Kane, in the case of The Red Bank Co. v. The John W. Gandy, 
 7 Am. Law Reg. 606, remarks : " The nautical gentlemen who did me the kind- 
 ness to hear the evidence with me, are of opinion," etc. See also The Hypo- 
 dame, 6 Wallace, 224. And in The Brig Rival, 1 Sprague, 128, experts were 
 admitted by consent, and questions put to, and answers returned by, them.
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 439 
 
 district to submit the evidence to nautical men, and to take their 
 opinion upon the facts in the case.^ This practice was considered, 
 however, as open to some objection, and in 1855 it was declared to 
 be improper, and the more correct, mode pointed out of taking the 
 opinions of the experts upon a hypothetical case.^ 
 
 But the practice of examining the expert in the most direct 
 manner seems still to prevail. We think, however, that these 
 cases are consistent with each other ; and the rule may perhaps be 
 stated thus : It is not proper to submit the evidence of other wit- 
 nesses to experts, and then ask them for their opinion on the sup- 
 position that the facts stated are true ; but if the subject in contro- 
 versy is the cause of damage to a cargo, or any matter of a like 
 nature, there can be no objection to asking experts who have ex- 
 amined the damaged cargo what in their opinion is the cause of 
 the damage.^ 
 
 In England, the opinions of nautical men in respect to a case of 
 salvage have been rejected by the court.'^ 
 
 Affidavits are seldom admitted as proof. The court will not 
 receive by an affidavit of a party any facts offered in bar to the 
 action,^ nor will it on an affidavit of any one decide questions 
 
 ' In Peele v. Merchants' Ins. Co. 3 Mason, 27, 36, Mr. Justice Story said : " As 
 to the question of the sufficiency of the repairs, that is so dependent upon practi- 
 cal skill in nautical affairs, that if the cause were to turn upon it, I should, accord- 
 ing to the known course of the admiralty, refer it to experts to report upon the 
 whole evidence, what in their judgment is the true posture of the case in this 
 respect." See also Lowry v. Steamboat Portland, 1 Law Rep. 313. 
 
 * The Clement, 2 Curtis, C. C. 363. See also Allen v. Mackay, 1 Sprague, 
 219, 223. The case of The Clement was taken by appeal to the Supreme Court,' 
 and new depositions were taken, containing the opinions of the experts in the 
 manner pointed out. But as the court were equally divided in opinion on the 
 facts of the case, the case has never been reported, and we are unable to state 
 whether the mode indicated received the sanction of the Supreme Court. 
 
 ' More wood v. Enequist, 23 How. 491. In Ogden v. Parsons, 23 How. 167, a 
 charter-party stipulated that the vessel should receive a full cargo. It was held 
 that the question what was a full cargo, under all the circumstances, and whether 
 the ship could have been loaded to a greater depth than she was, consistent with 
 safety, was a question which could be solved only by experienced ship-masters. 
 The witnesses appear to have examined upon the precise question, and not upon 
 a hypothetical case. 
 
 * The No, 1 Spinks, 184. 
 
 ^ The Lord Hobart, 2 Dods. 100.
 
 440 ADMIRALTY PRACTICE. [BOOK HI. 
 
 relative to charges of a criminal cliaracter,i nor receive it to con- 
 tradict,'-^ or to fill out a deposition of the same person, nor in 
 explanation and justification of the conduct of a party, which has 
 appeared in evidence and has been commented on by counsel.^ 
 
 A court of admiralty, it has been said, in England is much more 
 liberal in the admission of evidence than a court of common law, 
 on account of the nature of the causes tried, and the difficulty of 
 getting witnesses, and the expense and delay of a rigid adherence 
 to common law rules, and because the court may be considered 
 more competent to weigh evidence than a jury.* 
 
 Probably the strict rule and the original practice permitted no 
 oral testimony in admiralty ; now, both in England ^ and in this 
 country, it is not only constantly received, particularly in those cases, 
 as actions for seamen's wages and the like, which require to be dis- 
 posed of in the shortest time and at the least expense, but is 
 required to be taken orally in the district court, except in certain 
 specified cases. 
 
 Thus the Judiciary Act provides,^ " That the mode of proof by 
 oral testimony and examination of witnesses in open court shall be 
 the same in all the courts of the United States, as well in the trial 
 of causes in equity and of admiralty and maritime jurisdiction, as 
 of actions at common law. And when the testimony of any person 
 shall be necessary in any civil cause depending in any district in 
 any court" of the United States, who shall live at a greater distance 
 from the place of trial than one hundred miles,^ or is bound on a 
 
 1 The Apollo, 1 Hagg. Adm. 306, 315. 
 
 " The Georgiana, 1 Dods. 397, 399. 
 
 ' Wood V. Goodlake, 2 Curteis, Eccl. 82, 97. 
 
 * The Peerless, Lush. Adm. 41. 
 
 ' 3 & 4 Vict. c. 65, §§ 7, 8. See The Swanland, 2 Spinks, 107. 
 
 » Act of 1789, c. 20, § 30, 1 U. S. Stats, at Large, 88. 
 
 ' This act does not apply to the Supreme Court of the United States. The 
 Argo, 2 Wheat. 287. Nor to depositions taken under a rule of court. Banert v. 
 Day, 3 Wash. C. C. 243; Wilkinson v. Yale, 6 McLean, 18. 
 
 * The witness must reside more than one hundred miles from the place of 
 trial. Curtis v. Central Railway, 6 McLean, 401. It makes no difference 
 whether his residence is in the district or without it. Patapsco Ins. Co. v. South- 
 gate, 5 Pet. 604 ; Allen v. Blunt, 2 Woodb. & M. 136; Russell v. Ashley, Hemps. 
 546. The judge need not certify that the place where the deposition was taken was 
 more than 100 miles from the place of trial. It is sufficient if the fact appears other- 
 wise. Voce V. Lawrence, 4 McLean, 203. In Ex parte Humphrey, 2 Blatchf. C.
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 441 
 
 voyage to sea, or is about to go out of the United States/ or out of 
 such district, and to a greater distance from the place of trial than 
 as aforesaid, before the time of trial, or is ancient or very infirm, 
 the deposition of such person may ^ be taken de bene esse ^ before 
 any justice or judge of any of the courts of the United States, or 
 before any chancellor, justice, or judge of a supreme or superior 
 court, mayor or chief magistrate of a city,* or judge of a county 
 court ^ or court of common pleas of any of the United States," (or 
 any United States commissioner,^ or the clerks of the circuit or dis- 
 
 C. 228, it was held that the statute did not apply to the case of a person who 
 resided within 100 miles of the place of trial, but was more than that distance at 
 the time of the service of the subpoena upon him, he being temporarily away from 
 home. 
 
 ^ In The Samuel, 1 Wheat. 9, the reason assigned in the certificate was, " that 
 the deponent is a seaman on board a gunboat of the United States, in the harbor 
 of Newport, and liable to be ordered to some other place, and not to be able to 
 attend the court at the time of its sitting." Held, insufficient. 
 
 " This does not peremptorily ordain that the testimony of witnesses, living more 
 than 100 miles from the place of trial, shall be taken by deposition. It only per- 
 mits such a course ; and if such witnesses testify orally at the trial, the full cost of 
 their travel and attendance is allowed in the costs. Prouty v. Draper, 2 Story, 
 C. C. 199. 
 
 * A deposition cannot be taken under this statute, except by consent of parties 
 while the court is in session, before which the cause is pending. Alien v. Blunt, 
 2 Woodb. & M. 122. The rule is the same where the notice is served so soon 
 before the beginning of the term that the counsel could not be present when the 
 court came in, if he should attend the deposition. Bell v. Nimmon, 4 McLean, 
 539. 
 
 * A deposition taken before a mayor, without a seal, is admissible, for noti constat 
 that he has a seal. Price v. Morris, 5 McLean, 4. It is otherwise if he usually 
 certifies his official acts under seal. Paul v. Lowry, 2 Cranch, C. C. 628. 
 
 ^ In Mississippi, a judge of probate is "a judge of a county court," within the 
 meaning of this act. Fowler v. Merrill, 11 How. 375, nom. Merrill v. Dawson, 
 Hemps. 563. And it has been held that a judge of a county court can take dep- 
 ositions out of his county. Voce v. Lawrence, 4 McLean, 203. The judge of a 
 city court cannot act under this section. Foreman v. Holmead, 5 Cranch, C. C. 
 162. Nor can a county commissioner. Garey v. Union Bank, 3 Cranch, C. C. 91. 
 
 ® Act of 1817, c. 30, 3 U. S. Stats, at Large, 350, provides that commissioners 
 " shall and may exercise all the powers that a justice or judge of any of the courts 
 of the United States may exercise by virtue of the 30th section of the act entitled 
 ' An act to establish the judicial courts of the United States.' " In Hoyt v. Ham- 
 mekin, 14 How. 350, an objection was taken to a deposition on the ground that it 
 did not appear that the commissioner had been sworn. Held, that this objection 
 was not sustainable. The court said : " The commissioner is an officer appointed 
 by the courts of the United States, and his official acts are prima facie valid."
 
 442 ADMIRALTY PRACTICE. [BOOK III. 
 
 trict courts,! or notaries public,^) " not being of counsel or attorney 
 to either of the parties,^ or interested in the event of the cause, pro- 
 vided that a notification * from the magistrate ^ before whom the 
 deposition is to be taken to the adverse party, to be present at the 
 taking of the same, and to put interrogatories, if he think fit,^ be 
 first made out and served on the adverse party or his attorney as 
 either may be nearest,^ if either is within one hundred miles of the 
 
 ^ By act of 1853, c. 80, 10 U. S. Stats, at Large, 163, clerks are authorized "to 
 take and certify affidavits and depositions in the same manner as commissioners." 
 
 " Act of 1854, c. 159, 10 U. S. Stats, at Large, 315, provides "that notaries 
 public be and they are hereby authorized to take depositions and do such other 
 acts in relation to evidence to be used in the courts of the United States, in the 
 same manner and with the same effect, as commissioners to take acknowledgments 
 of bail* and affidavits may now lawfully take and do." 
 
 The authority of the magistrate need not be proved, otherwise than by his own 
 certificate. Ruggles v. Bucknor, 1 Paine, C C. 358 ; Vasse v. Smith, 2 Cranch, 
 C. C. 31. 
 
 The certificate and seal of the notary are sufficient proof of his authority to act 
 as such. Dinsmore v. Maroney, 4 Blatchf. C C. 416. 
 
 ' It seems not to be necessary for the magistrate to certify this. Peyton v. 
 Veitch, 2 Cranch, C. C. 123. 
 
 * In Harris v. Wall, 7 How. 705, Grier, J., said : " It would be reasonable, also, 
 •where notice is required to be given to the opposite party, that such notice should 
 show on its face that the contingency has happened which confers jurisdiction on 
 the magistrate, and gives a right to the party to have the deposition taken, so 
 that the party on whom the notice is served may be able to judge whether it is 
 necessary or proper that he should attend. The notice in this case states only 
 that the witness is ' about to depart the State,' not that he is bound on a voyage 
 to sea, or about to go out of the United States, or 100 miles from the place of 
 trial." The point was not decided. In Dinsmore v. Maroney, 4 Blatchf. C. C. 
 416, a deposition was objected to on the ground that the requirements of the act in 
 reo-ard to previous notice had not been complied with ; but as it appeared that a 
 notice had in fact been served, and that counsel for the adverse party had 
 attended and cross-examined the witness, the deposition was admitted. 
 
 * The magistrate must give the notice ; and a notice given by the party is not 
 enough. Young v. Davidson, 5 Cranch, C. C. 515. 
 
 " The notice need not state this. Bussard v. Catalino, 2 Cranch, C. C. 421. 
 
 ' In Carrington v. Stimson, 1 Curtis, C. C. 437, the notice was served "by 
 leaving a copy of the same on board the barque Weybopel lying at Constitution 
 AVharf, in Boston," where the officer stated he " was informed the within-named 
 Stimson lodged." Curtis, J., said : " It must appear that every requisite has been 
 complied with. One requisite is service of a notice on the adverse party, or his 
 attorney, if either be within 100 miles. This must be construed to require per- 
 sonal service ; no substituted service, by leaving the copy at his dwelling-house or
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 443 
 
 , place of such caption,^ allowing time for their attendance, after 
 notified, not less than at the rate of one day, Sundays exclusive, 
 for every twenty miles travel.^ And in causes of admiralty and 
 maritime jurisdiction, or other cases of seizure when a libel shall 
 be filed, in which an adverse party is not named, and depositions 
 of persons circumstanced as aforesaid shall be taken before a claim 
 be put in, the like notification as aforesaid shall be given to the 
 person having the agency or possession of the property libelled at 
 the time of the capture or seizure of the same, if known to the 
 libellant. And every person deposing as aforesaid shall be care- 
 fully examined and cautioned, and sworn or affirmed to testify the 
 
 usual place of abode, being authorized by the act. Consequently, the service in 
 this case was insufficient to authorize the taking of the deposition." The case of 
 Merrill v. Dawson, Hemps. 563, affirmed, 7io7n. Fowler v. Merrill, 11 How. 375, is 
 not opposed to this case, for the notice in Merrill v. Dawson was served under a 
 rule of court allowing service by copy left at the dwelling-house. In Dick v. 
 Runnels, 5 How. 9, there is a dictum of McLean, J., that a notice left at the 
 place of residence is sufficient. 
 
 The notice should contain the name of the witness whose deposition is to be 
 taken. Carrington v. Stimson, 1 Curtis, C. C. 437. Notice directed to the party 
 himself may be served on his attorney. Barrell v. Limington, 4 Cranch, C. C. 
 70. 
 
 ^ The distance that the adverse party and his attorney resided from the place 
 of taking the deposition, so as to supersede the necessity of giving notice, may be 
 shown by the certificate of the magistrate. Merrill v. Dawson, Hemps. 563. Or 
 proved by evidence aliunde. Voce v. Lawrence, 4 McLean, 203 ; Travers v. Bell, 
 2 Cranch, C. C. 160. In Dick v. Runnels, 5 How. 7, the certificate stated that no 
 notice was given the adverse party or his counsel because neither of them lived 
 within 100 miles of the place of caption to the deposition. It was contended that 
 the certificate should have stated that neither of them ivas within 100 miles of the 
 place, at the time of taking the deposition. Held, that the certificate was suffi- 
 cient. In The Argo, 1 Gallis. 314, which was an information for a violation of 
 the non-intercourse law, the District Attorney offered in evidence depositions 
 taken in New York without notice. The court said : " Though depositions thus 
 taken have been usually received, there are certainly great objections to the prac- 
 tice ; and the court have heretofore intimated a resolution to require notice to be 
 given in all cases, where there is an attorney of record." It was also held that in 
 all cases where the United States is a party, and there is an attorney of the 
 United States residing within 100 miles of the place of caption, notice must be 
 given to him. 
 
 ^ In Bussard v. Catalino, 2 Cranch, C. C. 421, the certificate omitted the word 
 " not " before the words " less than at the rate of one day," etc. Held, no 
 defect.
 
 444 ADMIRALTY PRACTICE. [BOOK III, 
 
 whole triith,^ and shall subscribe'-^ the testimony by him or her 
 given after the same shall be reduced to writing, which shall be 
 done only by the magistrate taking the deposition, or by the 
 deponent in his presence.^ And the depositions so taken shall be 
 retained by such magistrate until he deliver the same with his 
 
 ' The mafristrate need not certify that the witness was sworn to testify the 
 whole truth " in the matter in controversy." Bussard v. Catalino, 2 Cranch, C. C. 
 421. In Brown v. Piatt, 2 Cranch, C. C. 253, a certificate that the witness was 
 duly examined and solemnly affirmed, was held sufficient, although it did not state 
 that the witness was cautioned. In Moore v. Nelson, 3 McLean, 383, a certificate 
 that the " witness was sworn in pursuance of the act of Congress, and carefully 
 examined and sworn," was held sufficient. In Pentleton v. Forbes, 1 Cranch, 
 C. C. 507, a certificate that the deposition was subscribed and sworn to by the 
 deponent, was held to be insufficient. In Garrett v. Woodward, 2 Cranch, C. C. 
 190, a certificate that previous to the taking of the deposition the deponent was 
 by the magistrate carefully examined, cautioned, and affirmed to testify the truth 
 concerning all the matters touching which he should be questioned, was held in- 
 sufficient. In Rainer v. Haynes, Hemps. 689, a certificate that the witness was 
 " carefully examined and cautioned and duly sworn to testify the truth in regard 
 to the matters in controversy," was held to be insufficient. It should have stated 
 that he was sworn to testify the whole truth. In Luther v. Sch. Llerritt Hunt, 
 Newb. Adm. 4, a certificate was held insufficient for omitting to state that the 
 witness had been cautioned. 
 
 - In Voce V. Lawrence, 4 McLean, 203, the magistrate certified that the depo- 
 sition was reduced to writing by him. Held, that it was not necessary to certify 
 that the witness signed, because the signing was a part of the deposition, and the 
 certificate was, therefore, equivalent to saying that it was signed. In Centre v. 
 Keene, 2 Cranch, C. C. 198, the magistrate did not certify that the deponent sub- 
 scribed it in his presence, but that he subscribed it after it was reduced to writing 
 by the magistrate. Held, sufficient. 
 
 ' In Bell V. Morrison, 1 Pet. 356, the certificate stated that the deponent, " after 
 being carefully examined and cautioned and sworn to testify the whole truth, did 
 subscribe the foregoing and annexed deposition, after the same was reduced to 
 writing, by him in his own proper hand." Held, insufficient, because it did not 
 clearly appear that the deposition was reduced to writing in the magistrate's 
 presence. So held in Edmonson v. Barrell, 2 Cranch, C. C. 228, where the cer- 
 tificate was, " he maketh oath to the deposition above written, and subscribes the 
 same in my presence, the said deposition being first reduced to writing by the 
 deponent." And in Marstin v. McRea, Hemps. 688, a certificate that the depo- 
 sition " was reduced to writing under my direction," was held insufficient. See also 
 Vasse V. Smith, 2 Cranch, C. C. 31 ; United States v. Smith, 4 Day, 126 ; Bussard 
 V. Catalino, 2 Cranch, C. C. 421 ; Rainer v. Haynes, Hemps. 689. In Thorpe v. 
 Simmons, 2 Cranch, C. C. 195, a certificate that "form " instead of " the same 
 " was reduced to writing " was held insufficient.
 
 CH. XL] EVIDENCE IN ADmRALTY. 445 
 
 own hand into the court for which they are taken, or shall, to- 
 gether with a certificate of the reasons as aforesaid of their being 
 taken,^ and of the notice if any given to the adverse party ,2 be by 
 him the said magistrate sealed up and directed to such court,^ and 
 remain under his seal until opened in court." * 
 
 * How far strict accuracy is necessary in stating the title of the case is, per- 
 haps, somewhat uncertain. In Peyton v. Veitch, 2 Cranch, C. C. 1 23, at the trial 
 by jury, the report says : " Mr. Taylor, for the plaintiff, objected to the defend- 
 ants' depositions that they did not appear to have been taken in this cause, the 
 names of three of the defendants having been omitted in the caption." The 
 court nem. con. rejected them on that ground. See also Waskern v. Diamond, 
 Hemps. 701 ; Allen v. Blunt, 2 Woodb. & M. 137. In Voce v. Lawrence, 4 
 McLean, 203, the title of the deposition stated the names correctly. In the body 
 of the deposition the words " Anderson the above plaintiff," were used instead 
 of the right name of the plaintiff. Held, no uncertainty. See also Merrill v. 
 Dawson, Hemps. 563 ; Buckingham v. Burgess, 3 McLean, 368. 
 
 In Centre v. Keene, 2 Cranch, C. C. 198, the title of the case was Robert Cen- 
 tre, surviving partner of the late firms of Ripley, Centre, & Co. and Ripley & 
 Centre v. Newton Keene. The caption stated that the deposition was to be used 
 in an action in which Robert Centre & Co. were plaintiffs. Held, insufficient. 
 
 In Harris v. Wall, 7 How. 705, Grier., J., said : " The authority or jurisdiction 
 conferred on the magistrate by this act is special, and confined within certain lim- 
 its or conditions, and the facts calling for the exercise of it should appear upon 
 the face of the instrument, and not be left to parol proof The act of Congress 
 requires them to be certified by the magistrate. The magistrate did not certify 
 that the adverse party was served with notice or the reasons for taking the depo- 
 sition. Held, that the certificate was insufficient. See also Jones ;;. Knowles, 1 
 Cranch, C. C: 523 ; Jones v. Neale, Mart. N. C. 81. " The certificate may be con- 
 troverted by parol proof, especially in regard to the facts stated, of which the 
 magistrate is not supposed to have official knowledge." Per McLean., J., in Dick 
 V. Runnels, 5 How. 9. 
 
 ^ See Harris v. Wall, 7 How. 693. The certificate should show a notice given 
 to the adverse party or the reason why no notice was given. Pendleton v. Forbes, 
 1 Cranch, C. C. 507. If the certificate states facts which made it unnecessary 
 to give notice, it need not state that these facts were the reason why no notice was 
 given. Dinsmore v. Maroney, 4 Blatchf. C. C. 416. 
 
 ' In Shanwiker v. Reading, 4 McLean, 240, a deposition was rejected because 
 the certificate did not state that the magistrate retained the deposition until 
 sealed up and directed to the court. See also Jones v. Neale, Mart. N. C. 81. A 
 direction on the envelope to the "judges" of the court, instead of to "the 
 
 * In Beale v. Thompson, 8 Cranch, 70, the deposition was opened by the clerk 
 out of court, through a mistake. Held to be a fatal objection. So, where the 
 deposition was opened by an officer of the government before it came into the 
 possession of the clerk. United States v. Price, 2 Wash. C C 356.
 
 446 ADMIRALTY PEACTICE. [BOOK III. 
 
 This section also provides that unless it appears on the trial of 
 any cause that the witnesses are then dead or gone out of the 
 United States, or to a greater distance than one hundred miles ^ 
 from the place where the court is sitting, or that by reason of age,^ 
 sickness, bodily infirmity, or imprisonment, they are unable to 
 travel and appear at court, such depositions shall not be admitted 
 or used in the cause. ^ 
 
 Since depositions may be taken ex parte under this statute, if 
 the adverse party and his attorney live more than one hundred 
 miles from the place of taking the deposition, such testimony 
 when so taken is viewed with suspicion,* and it is the practice in 
 
 court," is not objectionable. Thorp v. Orr, 2 Cranch, C. C. 335. This case also 
 decides that a certificate of the magistrate that he intended to seal up the depo- 
 sition is not objectionable. In Nelson v. Woodruff, 1 Black, 156, at the hearing 
 in the district court the deposition of a witness was objected to on the ground, 1. 
 That no preliminary proof had been made of the witness' materiality. 2. That 
 it was not sealed up ; and, 3. That no notice was given of its being filed. The 
 commissioner who took the deposition was the clerk of the court, and the proctor 
 of the adverse party knew that the deposition had been taken. Betls, J., for these 
 reasons overruled the objections. On appeal the Supreme Court said : " We also 
 concur entirely with the view taken by our Brother Betts, of the district court, 
 upon the objections made to the admission of the deposition." 
 
 ^ If the witness resides within one hundred miles he must be subpoenaed, and 
 it must be shown that he is unable to come. Banert v. Day, 3 Wash. C. C. 243. 
 
 ' In Banert v. Day, 3 Wash C. C. 243, the witness was sixty-five years old ; 
 but as it was not shown that he was unable to come his deposition was rejected. 
 
 ' The Samuel, 1 Wheat. 9 ; Rutherford v. Geddes, 4 Wallace, 220. It is no 
 objection to reading the deposition of a witness, who lives in another State, more 
 than one hundred miles from the place of trial, that he had been in the city dur- 
 ing the session of the court, if the fact was not known to the party. Pettibone v. 
 Derringer, 4 Wash. C. C. 215. If the witness, at the time of taking the deposi- 
 tion, lives more than one hundred miles from the place of trial, the presumption 
 is that he is still there at the time of the trial, and the party intending to use his 
 deposition is not first obliged to show that he is then more than one hundred miles 
 from the place of trial. The burden of showing that he is within the distance is 
 on the adverse party. In all the other cases, the party intending to use the depo- 
 sition must first show that the disability still continues. Patapsco Ins. Co. v. 
 Southgate, 5 Pet. 617. 
 
 • In Walsh v. Rogers, 13 How. 283, 286, the court, per Grier, J., said : " While 
 we are on this subject, it will not be improper to remark, that when the act of 
 Congress of 1 789 was passed, permitting ex parte depositions, without notice, to 
 be taken, where the witness resides more than a hundred miles from the place of 
 trial, such a provision may have been necessary. It then required nearly as much
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 447 
 
 some courts to allow a continuance for the purpose of enabling 
 the adverse party to obtain the full evidence of the witness.^ 
 
 The authority conferred by the statute is special, and in deroga- 
 tion of common law, and must therefore be construed strictly .^ 
 
 Depositions taken in another suit concerning the same subject- 
 matter are not admissible in evidence, where the party against 
 whom they are offered was not a party to the suit in which they 
 were taken, nor privy to such party, and therefore could not cross- 
 examine the witnesses.^ 
 
 Depositions may also be taken by a dedimus potestatem, under 
 a commission issuing from the court,* and when so taken, are not 
 to be considered as taken de bene, but absolute, and may be i^ed 
 without reference to the accessibility of the witness.^ 
 
 The commissioners are agents of the court, and not of the par- 
 ties or of either of them, and if, therefore, the cross-interrogatories 
 are not put, the defendant may object to the deposition.^ 
 
 time, labor, and expense to travel one hundred miles, as it does now to travel one 
 thousand. Now, ■testimony may be taken and returned from California, or any 
 part of Europe, on commission, in two or three months, and in any part of the 
 States east of the Rocky Mountains in two or three weeks. There is now seldom 
 any necessity for having recourse to this mode of taking testimony. Besides, 
 it is contrary to the course of common law ; and, except in cases of mere formal 
 proof (such as the signature or execution of an instrument of writing), or of some 
 isolated fact (such as demand of a bill, or notice to an indorser), testimony thus 
 taken is liable to great abuse. At best it is calculated to elicit only such a partial 
 statement of the truth as may have the effect of entire falsehood. The person 
 who prepares the witness and examines him can generally have just so much or 
 so little of the truth, or such a version of it, as will suit his case. In closely con- 
 tested cases of fact, testimony thus obtained must always be unsatisfactory and 
 liable to suspicion, especially if the party has had time and opportunity to take it 
 in the regular way. This provision of the act of Congress should never be re- 
 sorted to unless in circumstances of absolute necessity, or in the excepted cases 
 we have just mentioned." 
 
 1 Allen V. Blunt, 2 Woodb. & M, 138. 
 
 " Bell V. Morrison, 1 Pet. 351, 355 ; Harris v. Wall, 7 How. 693. 
 
 ' Rutherford v. Geddes, 4 Wallace, 220. 
 
 * The 30th section of the act of 1789, c. 20, 1 U. S. Stats, at Large, 88, 90, 
 contains the following proviso : " Provided, that nothing herein shall be construed 
 to prevent any court of the United States from granting a dedimus jwtestatem to 
 take depositions according to common usage when it may be necessary to prevent 
 a failure or delay of justice." 
 
 * Sergeant v. Biddle, 4 Wheat. 508. 
 
 * Gilpins V. Consequa, Pet. C. C 85
 
 448 ADMIRALTY PRACTICE. [BOOK III. 
 
 If the commission issues to four persons jointly, it is not enough 
 that it is taken by three of the four ; ^ nor was the deposition 
 admitted when the commissioners named by the party objecting, 
 attended in part to the execution of the commission, and then 
 withdrew.2 Where the commissioners in a foreign country were 
 prohibited from acting by the law of government of that country, 
 and a judge took it, according to the terms of the commission in 
 other respects, it was admitted.^ If the commission be to two, 
 jointly and severally, either may execute it, and each of them may 
 take the deposition of the other .^ If one not named in the com- 
 mission join in taking it, it cannot be received.^ And if the 
 commission direct that the deposition shall be taken in a certain 
 place, it cannot be taken in any other.^ If the magistrate do not 
 deliver the deposition taken by him into court, personally, he must 
 send it sealed and directed to the court.'^ But if the return of the 
 commissioners be sent in an envelope which is sealed by them, no 
 other sealing upon the deposition or return is requisite.^ If the 
 certificate of the magistrate sets forth all the required facts, it will 
 entitle the deposition to be read without further proof.^ And any 
 ofiicer taking it, is prima facie presumed to be what he purports 
 and is described to be on the face of the deposition.^^ Nor is it a 
 good objection that the commissioners are Dutchmen, who do not 
 say that they acted by a sworn interpreter, although the deposition 
 is in English.ii It has been doubted whether it is necessary that 
 the deposition should be signed by the witness,^'-^ but this is cer- 
 tainly usual. Each interrogatory must be put, and must be an- 
 swered ; and the omission is fatal, although in answer to the gen- 
 
 ^ Guppy V. Brown, 4 Dall. 410; Armstrong v. Brown, 1 Wash. C. C. 43. 
 
 * This is so stated in Coxe's Digest, 159, and the case of Muns v. Dupont, 2 
 Wash. C. C. 463, 2 Browne, App. 42, is cited. But in neither report of this case 
 does the point appear to have arisen. 
 
 » Winthrop v. Union Ins. Co. 2 Wash. C. C. 7. 
 
 * Lonsdale i'. Brown, 3 Wash. C. C. 404. 
 ^ WiUings V. Consequa, Pet. C. C. 301. 
 
 ' Bondereau v. Montgomery, U. S. C. C Penn., 1821, Coxe's Digest, 244. 
 ' Jones V. Neale, Mart. N. C. 81. 
 
 * Grant v. Najlor, 4 Cranch, 224, 228. 
 » Bell V. Morrison, 1 Pet. 351. 
 
 *" Buggies I'. Bucknor, 1 Paine, C. C. 358. 
 " Gilpins V. Consequa, Pet. C. C. 85. 
 " Ketland v. Bissett, 1 Wash. C. C. 144.
 
 CH. XL] EVIDENCE IN ADMIRALTY. 449 
 
 eral interrogatories, the witness says he knows nothing more that 
 is material to either party. ^ The rule applies to all the cross-in- 
 terrogatories^ and to the general interrogatory.^ But if an inter- 
 rogatory is to be put, or to be answered, only if such a statement 
 has been made, or such an event occurred, and this contingency 
 has not happened, then the question need not be put or be an- 
 swered.* If the interrogatories are substantially put, though not 
 in the precise form in which they are propounded by the parties, 
 and if it appear that they are answered by the witnesses, it is suffi- 
 cient.^ So if they are substantially though not formally answered.^ 
 
 If a witness is asked if a certain affidavit be true, and replies in 
 the affirmative, this does not introduce the affidavit.*^ Objections 
 to the competency of a witness should be made when a deposition 
 is taken ; if not, they are considered as waived, unless they were 
 at that time unknown, without fault of the objecting party .^ And 
 if a deposition has once been read in evidence, without objection, 
 it cannot be afterwards objected to as irregularly taken.^ But 
 this, or an express waiver, imparts to the deposition no new char- 
 acter, or force ; thus, if it be taken de bene esse, an express waiver 
 does not make it a deposition in chief or absolute.^^ 
 
 When the time limited in an order for taking evidence had 
 expired, it was enlarged, the court being satisfied that justice 
 required it, there being new evidence discovered. ^^ But where 
 rules are themselves of great importance, they will not be disre- 
 garded, even if the individual case would seem to justify an excep- 
 
 ^ Ketland v. Bissett, 1 Wash. C. C. 144. 
 
 ^ Gllpins V. Consequa, Pet. C. C. 85. It was also held in this case that it was 
 sufficient, if the cross-interrogatories were put to each witness after all had an- 
 S||ered the direct interrogatories, although the more proper course would have 
 been to have asked each witness the cross-interrogatories immediately after he 
 had answered the direct. 
 
 ' Richardson v. Golden, 3 Wash. C. C. 109 ; Dodge v. Israel, 4 Wash. C. C. 
 323. 
 
 * Bell V. Davidson, 3 W^ash. C. C. 328. 
 
 ^ Winthrop v. Union Ins. Co. 2 Wash. C. C. 7. 
 
 * Nelson v. United States, Pet. C. C. 235. 
 
 ' Richardson v. Golden, 3 Wash. C. C. 109. 
 
 * United States v. 1 Case of Hair Pencils, 1 Paine, C. C. 400. 
 ' Evans v. Hettich, 7 Wheat. 453. 
 
 '» The Sch. Thomas & Henry v. United States, 1 Brock. C. C. 367. 
 " The Sch. Ruby, 5 Mason, 451. 
 
 VOL. II. 29
 
 450 ADMIRALTY PRACTICE. [BOOK lU. 
 
 tion; so, where, in the circuit court (but not in admiralty), a 
 luitness being of extreme old age, it was requested that a friend 
 might attend him before the commissioners, the request was 
 denied.! 
 
 The act of 1792 ^ provides that " the forms and modes of pro- 
 ceeding in suits of equity, and of admiralty jurisdiction, shall be 
 according to the principles, rules, and usages which belong to 
 courts of equity and to courts of admiralty respectively, as contra- 
 distinguished from courts of common law, except so far as may 
 have been provided for by the act to establish the judicial courts 
 of the United States ; subject, however, to such alterations and 
 additions as the said courts respectively shall in their discretion 
 deem expedient, or to such regulations as the Supreme Court 
 of the United States shall think proper, from time to time, by 
 rule to prescribe to any circuit or district court, concerning the 
 same." 
 
 In some countries the government refuses to recognize the au- 
 thority of a foreign court to send a dedimus potestatem to take 
 evidence within their jurisdiction. In such a case, in countries 
 governed by the civil law, it was usual to send letters rogatory, or 
 letters sub mutuce vicissitudinis, as they are sometimes called, from 
 a clause which they usually contained, to a foreign court, inform- 
 ing it that a certain claim was pending, in which the testimony of 
 certain witnesses who resided within its jurisdiction was required, 
 and requesting it to take their depositions, or cause them to be 
 taken in due course and form of law, for the furtherance of justice, 
 and with an offer, on the part of the court making the request, to 
 do the like for the other in a similar case. This practice does not 
 obtain in our common-law courts, though it was formerly in use iu 
 England ; but it has been adopted in at least one case in the 
 United States courts,^ and our admiralty courts would undoubt- 
 edly employ it if necessary. 
 
 ' Cunningham v. Otis, 1 Gallls. 166. 
 
 » C. 36, § 2, 1 U. S. Stats, at Large, 276. 
 
 * Nelson v. The United States, Pet. C. C. 235. This was an information for a 
 breach of the non-importation law. A commission had issued from the district 
 court to take the evidence of certain persons in Havana, but the authorities there 
 prevented its execution. Letters rogatory were then issued by the circuit court 
 in the following form : —
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 451 
 
 111 1827 an act was passed providing that whenever a commis- 
 sion should be issued by any court of the United States for taking 
 the testimony of a witness at any place within the United States or 
 the Territories thereof, the clerk of the district or territory in 
 which such place might be should issue a subpoena to the witness. 
 The judge of the district or territory may also order the clerk in 
 proper cases to issue a subpoena duces tecum, and he may punish 'a 
 witness for refusing to obey either of these subpoenas .^ 
 
 The question has been much discussed by Mr. Conkling as to the 
 proper mode of taking testimony in the circuit court, and his opinion 
 is that it should be oral, except in cases where a deposition de bene 
 esse is allowed, or where it is taken under a dedimus potestatem " to 
 prevent a failure or delay of justice." The act of 1803, c. 40,^ 
 provided that upon an appeal from the circuit court to the Supreme, 
 " a transcript of the libel, bill, answer, depositions, and all other 
 proceedings of what kind soever in the cause, shall be transmitted 
 to the said Supreme Court." Congress had previously authorized 
 the taking of evidence in equity suits in the circuit court by 
 deposition, at the request of either party, except in those States in 
 which testimony in chancery is not taken by deposition.^ In 1833, 
 
 " United States, , 
 
 Set. 
 
 District of Pennsylvania. ) 
 
 " The President of the United States to any judge or tribunal, having jurisdic- 
 tion of civil causes at Havana, greeting : — 
 
 " Whereas, a certain suit is pending before us in which John D. Nelson, Henry- 
 Abbott, and Joseph E. Tatem, are the claimants of the schooner Perseverance and 
 cargo, and the United States of America are the defendants ; and it has been 
 suggested to us that there are witnesses residing within your jurisdiction, without 
 whose testimony justice cannot completely be done between the said parties. 
 We therefore request you, that, in furtherance of justice, you will, by the proper 
 and usual process of your court, cause such witness or witnesses, as shall be named 
 or pointed out to you by the said parties, or either of them, to appear before you 
 or some competent person, by you for that purpose to be appointed and author- 
 ized, at a precise time and place, by you to be fixed, and there to answer on their 
 oaths and affirmations, to the several interrogatories hereunto annexed ; and that 
 you will cause their depositions to be committed to writing, and returned to us 
 under cover, duly closed and sealed up together with these presents. And 
 we shall be ready and willing to do the same for you in a similar case when 
 required. Witness," etc. See also United States v. Holmes, 12 Law Rep. 382 ; and 
 Act of 1863, c. 95, 12 U. S. Stats, at Large, 769, which we give in the Appendix. 
 
 * Act of 1827, c. 4, 4 U. S. Stats, at Large, 197. 
 
 " 2 U. S. Stats, at Large, 244. 
 
 » Act of 1802, c. 31, § 25, 2 U. S. Stats, at Large, 166.
 
 452 ADMIRALTY PRACTICE. [BOOK III. 
 
 Mr. Justice Story said : " I beg here to repeat what was stated at 
 the bar at the time, but seems not to have been generally under- 
 stood in practice, that since the act of the 3d of March, 1803, c. 93, 
 (c. 40), in admiralty causes, as well as in equity causes, all the 
 evidence originally taken in the circuit court, in cases capable of 
 appeal, must be transmitted to the Supreme Court, which cannot 
 be unless the same is reduced to writing ; and no new supple- 
 mentary evidence can be received in the Supreme Court, except in 
 admiralty and prize causes, which rule presupposes that all the old 
 evidence is already in the record." ^ Mr. Conkling, on the other 
 hand, contends that the 30th section of the judiciary act of 1789, 
 enjoining the examination of witnesses in open court, applies 
 equally to cases in the circuit as in the district courts, and cites 
 the remainder of the section, which, he says, precludes the possibil- 
 ity of a doubt of the fact. This section is as follows : " In the 
 trial of any cause of admiralty or maritime jurisdiction in a dis- 
 trict court, the decree in which may be appealed from, if either 
 party shall suggest to, and satisfy the court that probably it will 
 not be in his power to produce the witnesses there testifying before 
 the circuit court, should an appeal be had, and shall move that 
 their testimony be taken down in writing, it shall be so done by 
 the clerk of the court. And if an appeal be had, such testimony 
 may be used on the trial of the same, if it shall appear to the 
 satisfaction of the court which shall try the appeal that the wit- 
 nesses are then dead or gone out of the United States, or to a 
 greater distance than as aforesaid from the place where the court 
 is sitting, or that, by reason of age, sickness, bodily infirmity, or 
 imprisonment, they are unable to travel and appear at court, but 
 not otherwise." ^ But we hardly think this meets the objection of 
 Mr. Justice Story. The question is not so much the import of the 
 act of 1789 as it is the effect of the act of 1803. The section 
 above cited by Mr. Conkling makes no provisions for reducing the 
 evidence in the circuit court to writing, which must be in that 
 state in order that the act of 1803 may be complied with.^ In 
 
 ' The Sch. Boston, 1 Sumner, 328, 332. 
 
 * 1 U. S. Stats, at Large, 89. The 6th Rule of the circuit court for the North- 
 ern District of New York, allows a copy of the notes taken by the judge to be 
 evidence, and further extends the rights given by the statute cited in the preced- 
 ing note. 
 
 • In Conn v. Penn, 5 Wheat. 424, the question arose as to the proper manner
 
 CH. XI.] EVIDENCE IN ADMIRALTY. 453 
 
 1846, a rale was adopted by the circuit court for the first circuit, 
 which provides that " in all causes in admiralty the testimony 
 shall be in writing, unless for special cause shown the court shall 
 allow witnesses to be examined orally upon the stand." 
 
 It is now provided by the Fifty-Second Admiralty Rule, that fur- 
 ther proofs taken in a circuit court upon an admiralty appeal shall 
 be by deposition taken before a commissioner, or before some 
 officer authorized to take depositions by the thirtieth section of the 
 act of Congress of 1789, upon an oral examination and cross- 
 examination, unless the court or one of the judges shall allow 
 upon motion a commission to issue upon written interrogatories 
 and cross-interrogatories. And the rule also provides that when 
 oral evidence is taken down by the clerk of the district court, and 
 is transmitted to the circuit court, it may be there used in evi- 
 dence, saving to either party the right to take the deposition of 
 the party if he should so elect. 
 
 The act of 1803, c. 40,^ provides that on the hearing of an 
 appeal in the Supreme Court no new evidence shall be received, 
 except in admiralty and prize causes.^ The manner of taking 
 such evidence is pointed out by the twelfth general rule of the 
 Supreme Court, which we give in our note.* 
 
 of taking evidence in an equity suit in the Supreme Court. Tlie extent to -which 
 the act of 1803 overrules the preceding acts was not decided, the court stating 
 that they felt considerable doubts on the subject, but it was held that all the tes- 
 timony on which the judge in the court below founded his opinion must be before 
 the court and appear on the record, and the evidence having been taken orally 
 in the court below, the cause was remanded for further proceedings. 
 
 ^ 13 How. vi. In The Enterprise, 2 Curtis, C. C. 317, 321, Mr. Justice Curtis said: 
 " In the suit in rem, numerous technical objections were taken to the admissibility 
 of the depositions sent up to this court from the district court. I consider these 
 depositions to have been taken as further proof under the rule of the Supreme 
 Court on that subject." 
 
 ' 2 U. S. Stats, at Large, 244. 
 
 ^ See Hawthorne v. The United States, 7 Cranch, 107 ; The Brig James 
 Wells V. The United States, 7 Cranch, 22. 
 
 * " 1. In all cases where further proof is ordered by the court, the depositions 
 which shall be taken, shall be by a commission to be issued from this court, or from 
 any circuit court of the United States. 2. In all cases of admiralty and mari- 
 time jurisdiction, where new evidence shall be admissible in this court, the evi- 
 dence by testimony of witnesses shall be taken under a commission to be issued 
 from this court, or from any circuit court of the United States, under the direction 
 of any judge thereof; and no such commission shall issue but upon interrogatories
 
 454 ADMIRALTY PRACTICE, [BOOK III, 
 
 to be filed by the party applying for the commission, and notice to the opposite 
 party or his agent or attorney, accompanied with a copy of the interrogatories so 
 filed, to file cross-interrogatories within twenty days from the service of such 
 notice : Provided, however, that nothing in this rule shall prevent any party 
 from giving oral testimony in open court in cases where, by law, it is admissible," 
 21 How. ix. 
 
 This rule is the same as the old 25th and 27th General Rules. In the Massa- 
 chusetts district the practice for many years prior to this rule was, for the clerk 
 to issue a commission as a matter of course, on written interrogatories and cross- 
 interrogatories being filed.
 
 CH. Xn.] COMMISSIONERS AND REFEREES. 455 
 
 CHAPTER XII. 
 
 OF COMMISSIONERS AND REFEREES. 
 
 In cases where the court shall deem it expedient or necessary 
 for the purposes of justice, it may refer any matters arising in the 
 progress of the suit to one or more commissioners, to be appointed 
 by the court, to hear the parties and make report therein. And 
 such commissioner or commissioners shall have and possess all the 
 powers in the premises, which are usually given to or exercised by 
 masters in chancery, in references to them, including the power 
 to administer oaths to, and examine, the parties and witnesses 
 touching the premises.^ The report of the commissioners will not 
 be disturbed, unless it is shown to be affirmatively in the wrong.^ 
 And parties excepting to the report should state, with reasonable 
 precision, the grounds of their exception, with the mention of such 
 particulars as will enable the court to ascertain what the basis of 
 the exception is.^ 
 
 ^ 44th Admiralty Eule. In Shaw v. Collyer, 4 Blatchf. C. C. 370, the district 
 court heard sufficient evidence to show that the libellant had been in the employ 
 of the respondent as master of a vessel, and that the principal question was the 
 amount due. The case was then referred to a commissioner to take proofs as to 
 the nature, extent, and value of the service, and as to the payments made, or 
 other deductions to be allowed, if any, and to report thereon. Held, that this was 
 unobjectionable. 
 
 * Taber v. Jenny, 1 Sprague, 315. In The Ship Potomac, 2 Black, 581, a 
 claim against a vessel for repairs was sent to a master to take an account. The 
 report of the master found the amount due, but stated no account. General 
 exceptions were taken to it, as " that it was for an amount far exceeding any 
 amount of work performed," etc. Held, that if the respondent wished to contest 
 any of the specific charges he should have had the report referred back to the 
 master to state an account ; and that it was not enough for the appellant merely 
 to raise a doubt on conflicting testimony ; that the judgment of the court below 
 might possibly be erroneous, but that the judgment must be assumed to be cor- 
 rect till the contrary is made to appear. 
 
 ' Thus in The Commander In Chief, 1 Wallace, 43, the following exceptions 
 were overruled for the reasons given : 1st. That the commissioner allowed im- 
 proper and immaterial evidence to be introduced by the libellants. Overruled,
 
 456 ADMIRALTY PRACTICE. ^ [BOOK III. 
 
 Where a cause is sent to a commissioner to assess damages, his 
 report has not the effect of a verdict, but the court may modify it, 
 or wholly reject it.^ 
 
 If a cause is sent to a master, and he refuses to examine 
 a certain witness, the party offering the witness should present 
 to the court a written statement on oath, as to the particulars 
 which the witness was offered to prove, that the court may com- 
 pare it with what has been already proved by the other witnesses 
 of the party, to enable the court to determine whether it was inde- 
 pendent, or only cumulative proof.^ 
 
 If a party is dissatisfied with a commissioner's report in respect 
 to the matter of damages, he should file appropriate exceptions in 
 the district court ; otherwise objections to the amount will not be 
 afterwards entertained.^ An objection to the regularity of a com- 
 missioner's report should be made by motion, and not by an 
 exception to the report.* 
 
 An award of a referee will not be recommitted because the 
 counsel for the libellants omitted to call the attention of the court 
 to a matter which might have influenced the referee to increase 
 the damages, if his attention had been called to it.^ The principal 
 grounds for setting aside an award are fraud, collusion, and mis- 
 take.^ An award, made in pursuance of a rule of court directing 
 a referee to determine the amount due and the question of costs, 
 is sufficieiitly certain if it states the amount due, and that the 
 libellants are entitled to costs, without stating the amount of the 
 costs.^ 
 
 In a salvage case, where an award was made out of court, and 
 the salvors, being dissatisfied with the amount, libelled the vessel 
 
 because it was not accompanied by any report of the evidence objected to, and 
 there was, therefore, no means of determining whether it was proper or improper. 
 2d. That the commissioner had no evidence to justify his finding. Overruled, 
 because there was no report of the facts. 3d. That witnesses were admitted to 
 testify as to the value of the vessel who were not competent, and whose evidence 
 should have been rejected. Overruled, because the names of the witnesses 
 were not given, and it was not stated why they were incompetent, nor what their 
 testimony was, nor the ground why it should have been rejected. 
 
 • Sturgis V. Clough, 1 Wallace, 2G9. 
 
 ' The Steamer New Philadelphia, 1 Black, 62, 75. 
 ' The Vanderbilt, 6 Wallace, 230. 
 
 * The Columbus, Abbott, Adm. 37. 
 
 ' The Liverpool Packet, 2 Sprague, 37.
 
 CH. XII.] COMMISSIONEES AND REFEREES. 457 
 
 in admiralty, Dr. Lushington said it was a grossly factious pro- 
 ceeding, and condemned the salvors in costs and damages for the 
 detention of the vessel.^ 
 
 ^ The Nautilus, Swabey, Adm. 105.
 
 458 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER XIII. 
 
 OF PRIZE CAUSES. 
 
 It is necessary to speak of the rules and practice of admi- 
 ralty peculiar to prize causes.^ In 1864 ^ an act of Congress was 
 passed which provides very fully for all matters likely to arise in 
 prize causes. It is the duty of the commanding officer of the vessel 
 making the capture, to secure the documents of the ship and 
 cargo, including the log-book, and all other documents, letters, and 
 papers found on board, to make an inventory of the same, and to 
 seal them up, and send them with the inventory to the court in 
 which proceedings are to be had, with a written statement that 
 they are all the papers found, and in the condition in which they 
 were found, and explaining the absence of any documents or 
 papers, or any change in their condition. 
 
 He is required to send to the court as witnesses, the master,^ 
 one or more of the other officers, — the supercargo, purser, or 
 agent of the prize, — and any person found on board whom he may 
 suppose to be interested in, or to have knowledge respecting, the title, 
 national character, or destination of the prize. He is also to send 
 the prize, with the documents, papers, and witnesses, under charge 
 of a competent prize-master and prize-crew, into port for adjudica- 
 tion, explaining the absence of any usual witnesses ; and in the 
 absence of instructions from superior authority as to the port to 
 which it shall be sent, he shall select such port as he shall deem 
 most convenient in view of the interests of probable claimants, as 
 well as of the captors. If the captured vessel, or any part of the 
 captured property, is not in condition to be sent in for adjudica- 
 tion, a survey shall be had thereon, and an appraisement made by 
 
 ' See the elaborate essays of Mr. Justice Story on this subject in 1 Wheat. App. 
 494, and 2 Wheat. App. 1. 
 
 » Act of 1864, c. 174, 13 U. S. Stats, at Large, 306. This act we give in the 
 Appendix, 
 
 ' See The Julia, 2 Sprague, 1.64.
 
 CH. XIII.] PRIZE CAUSES. 459 
 
 persons as competent and impartial as can be obtained, and their 
 reports shall be sent to the court in which proceedings are to be 
 had ; and such property, unless appropriated for the use of the 
 government, shall be sold by the authority of the commanding 
 officer present, and the proceeds deposited with the assistant treas- 
 urer of the United States most accessible to said court, and sub- 
 ject to its order in the cause. ^ 
 
 If any vessel of the United States claims to share in the prize, 
 either as having made the capture, or as having been within signal 
 distance of the vessel making the capture, the commanding officer 
 of such vessel shall make out a written statement of his claim, 
 with the grounds on which it is rested, the principal facts tending to 
 show what vessels made the capture, and what vessels were within 
 signal distance of those making the capture, with reasonable par- 
 ticularity, as to times, distances, localities, and signals made, seen, 
 or answered ; and such statement of claim shall be signed by him 
 and sent to the court in which proceedings shall be had, and shall 
 be filed in the cause.^ 
 
 It is the duty of the prize master to make his way diligently to 
 the selected port, and there immediately deliver to a prize commis- 
 sioner the documents and papers, and the inventory thereof, and 
 make affidavit that they are the same, and in the same condition 
 as delivered to him, or explaining any absence or change of condi- 
 tion therein, and that the prize property is in the same condition 
 as delivered to him, or explaining any loss or damage thereto ; 
 and he must report to the district attorney, and give to him all 
 the information in his possession respecting the prize and her cap- 
 ture ; and also deliver over to the custody of the marshal the 
 persons sent as witnesses, and retain the prize in his custody until 
 it shall be taken therefrom by process from the prize court.^ 
 
 The attorney of the United States for the district is required 
 immediately to file a libel against such prize property, and to 
 forthwith obtain a warrant from the court directing the marshal 
 to take it into his custody, and to proceed diligently to obtain a 
 condemnation and distribution thereof, and to see that the proper 
 preparatory evidence is taken by the prize commissioners, and 
 that the prize commissioners also take the depositions de bene esse 
 
 ' Actof 1864, c. 174, § 1. " jbid. § 2. ' Ibid. § 3.
 
 460 ADMIRALTY PRACTICE. [BOOK III. 
 
 of the prize crew and other transient persons cognizant of any 
 facts bearing on condemnation or distribution. It is also the duty 
 of the district attorney to represent the interests of the United 
 States in all prize causes, and not to act as separate counsel for 
 the captors on any private retainer or compensation from them, 
 unless in a question between the claimants and the captors on 
 a demand for damages. Tlie district attorney is also required to 
 examine all fees, costs, and expenses, sought to be charged on the 
 prize fund, and protect the interest of the captors and of the 
 United States. The district attorneys of all districts in which any 
 prize causes are or may be pending, are required as often as once 
 in three months to send to the Secretary of the Navy a statement 
 of the condition of all prize causes pending in their districts, in 
 such form and embracing such particulars as the Secretary of the 
 Navy shall require.^ 
 
 The district court may appoint three prize commissioners who 
 shall receive from the prize master the documents and papers, and 
 the inventory thereof, administer the affidavit of the prize master 
 before spoken of, and take the evidence of the witnesses sent in 
 the prize, separate from each other,^ on standing interrogatories.^ 
 
 1 Act of 1864, c. 174, § 4. 
 
 " The -witnesses are examined apart from each other, and successively, before 
 the depositions are closed and sent to the court, for after this is done, the com- 
 missioners cannot take further evidence without a special order. The Specula- 
 tion, 2 Rob. Adm. 293. And in one case where, two days after the vessel came 
 into port, a person representing himself to be the supercargo went before the 
 commissioners and offered papers in his possession, in behalf of the claimants, the 
 commissioners refused to examine him, and were sustained by the court. The 
 Anna, 1 Rob. Adm. 331. 
 
 ' The English standing interrogatories may be found in 1 Rob. Adm. 381. The 
 American in 2 Wheat. App. 81. In the Southern District of New York, there 
 are distinct prize rules which may be found in Dunlap's Adm. Practice, 2d ed. 
 3G8. In 1863, elaborate interrogatories in prize were prepared in the Massa- 
 chusetts District. 2 Sprague, 305. Formerly only those persons on board the 
 prize, and others introduced by special order of the court, were examined. The 
 Eliza & Katy, 6 Rob. Adm. 185, 189 ; The Henrick & Maria, 4 Rob. Adm. 43, 
 57 ; The Haabet, 6 Rob. Adm. 54. This examination should take place without 
 delay, and the commissioners must see that the inquiries are properly put and 
 answered with all the minuteness of detail that is necessary to procure a full, 
 explicit, and substantial answer to every question. The Ann Green, 1 Gallis. 
 274, 284.
 
 CH. XIII.] PRIZE CAUSES. 461 
 
 The witnesses are not to see the interrogatories, documents, or 
 papers, or to consult with counsel,^ or with any persons interested, 
 without special authority from the court ; and the witnesses who 
 have the rights of neutrals shall be discharged as soon as practi- 
 cable. The prize commissioners shall also take depositions de 
 bene esse of the prize crew and others, at the request of the dis- 
 trict attorney, on interrogatories prescribed by the court. They 
 shall also, as soon as any prize property comes within the district 
 for adjudication, examine the same, and make an inventory 
 thereof, founded on an actual examination, and report to the court 
 whetlier any part of it is in a condition requiring immediate sale 
 for the interests of all parties, and notify the district attorney 
 thereof; and if it be necessary to the examination or making of 
 the inventory that the cargo be unladen, they gliall apply to the 
 court for an order to the marshal to unlade the same, and shall, 
 from time to time, report to the court anything relating to the 
 condition of the property, or its custody or disposal, which may 
 require any action by the court, but the custody of the property 
 shall be only in the marshal. They shall also seasonably return 
 into court, sealed and secured from inspection,^ the documents 
 and papers which shall come to their hands, duly scheduled and 
 numbered, and the other preparatory evidence, and the evidence 
 taken de bene esse, and their own inventory of the prize prop- 
 erty ; and if the captured vessel, or any of its cargo or stores, are 
 such that, in their judgment, they may be useful to the government 
 in war, they shall report the same to the Secretary of the Navy,^ 
 
 It is the duty of the marshal to keep safely all prize property 
 under warrant from the court ; to report to the court any cargo or 
 other property that he thinks requires to be unladen and stored, or 
 to be sold ; to insure prize property, if, in his judgment, it is for the 
 interest of all concerned ; to keep in his custody all persons found 
 
 ^ No counsel are permitted to be present ; but it is the duty of the commission- 
 ers to superintend the regularity of the proceeding, and to protect tlie witnesses 
 from surprise or misrepresentation, and after the deposition is taken, each sheet 
 is read over to the witness, and separately signed by him. The Apollo, 5 Rob. 
 Adm. 286. 
 
 ' Documents found on board a prize are not to be inspected by any person 
 before the claims have been filed and the evidence in preparatory completed and 
 publication ordered. The Cuba, 2 Sprague, 168. 
 
 * Actof 1864, c. 174, §§ 5, 6.
 
 462 ADMIRALTY PRACTICE. [bC)OK III. 
 
 Oil board a prize and sent in as witnesses, until they are released 
 by the prize commissioners or the court. If a sale of property is 
 ordered, he is to sell the same in the manner required by the 
 court, and collect the purchase-money, and forthwith deposit the 
 gross proceeds of the sales with the assistant treasurer of the 
 United States nearest the place of sale, subject to the order of 
 the court in the particular cause ; and each marshal is to forward 
 to the Secretary of the Navy, whenever and as often as he may 
 require it, a full statement of the condition of each prize and of 
 the disposition made thereof.^ , 
 
 Whenever any prize property is condemned, or at any stage 
 of the proceedings is found by the court to be perishing, perish- 
 able, or liable to deteriorate or depreciate, or whenever the costs 
 of keeping the same are disproportionate to its value, it is the duty 
 of the court to order a sale thereof; and whenever, after the 
 return day on the libel, all the parties in interest who have ap- 
 peared in the cause shall agree thereto, the court is authorized to 
 make such order, and no appeal shall operate to prevent the mak- 
 ing or execution of such order. It is the duty of the Secretary 
 of the Navy to employ an auctioneer or auctioneers of known skill 
 ill the branch of business to which any sale pertains, to make the 
 sale ; but the sale is to be conducted under the supervision of 
 the marshal, and the collecting and depositing of the gross pro- 
 ceeds to be by the auctioneer or his agent. Before any sale the 
 marshal must cause full catalogues and schedules to be prepared 
 and circulated, and a copy of each must be returned by the mar- 
 shal to the court in each cause. The marshal must cause all sales 
 to be advertised fully and conspicuously in newspapers ordered by 
 the court, and by posters, and, at least five days before the sale, 
 serve notice thereof upon the naval prize commissioner, and the 
 goods are to be open to inspection at least three days before the 
 sale.2 
 
 If a decree of condemnation is rendered, it is then the duty of the 
 court to determine what vessels are entitled to participate in the 
 prize, and whether the prize was of superior, equal, or inferior 
 force to the vessels making the capture.^ For this purpose testi- 
 
 ' Act of 1864, c. 174, § 7. 
 
 » Ibid. § 8. 
 
 ' In The Atlanta, 3 Wallace, 425, 2 Sprague, 251, it was held that in deter-
 
 CH. Xm.] PRIZE CAUSES. 463 
 
 mony is taken at as early a stage in the cause as possiL.3, and it 
 may be sworn to before any judge or commissioner of the courts 
 of the United States, consul or commercial agent of the United 
 States, or notary public, or any officer of the navy highest in rank, 
 reasonably accessible to the deponent. The decree of the court 
 must recite the amount of the gross proceeds of the prize subject 
 to the order of the court, and the amount deducted therefrom for 
 costs and expenses, and the amount remaining for distribution, 
 and whether the whole of such residue is to go to the captors, or 
 one half to the captors, and one half to the United States. ^ 
 
 The net proceeds of all property condemned as prize, when the 
 prize was of superior or equal force to the vessel or vessels making 
 the capture, is decreed to the captors ; and when of inferior force, 
 one half is decreed to the United States and the other half to the 
 captors. In case of prizes taken by privateers and letters-of- 
 marque, the whole is decreed to the captors, unless it is otherwise 
 provided in the commissions issued to such vessels. 
 
 All vessels of the navy within signal distance of the vessel or 
 vessels making the capture, under such circumstances and in such 
 condition as to be al)le to render effective aid if required, share in 
 the prize ; ^ and in case of vessels not of the navy, none shall be 
 mining the capturing force it was proper to consider not only the vessel which 
 led in the attack, and which fired the only shots that were fired, but also any 
 other vessel which, by having diverted the fire of the vessel forced to surrender, 
 by an obviously great force, by its position, conduct, and plain purpose at once to 
 come into the engagement, and to inflict perhaps complete destruction, may have 
 hastened the surrender. 
 
 ' Actof 1864, c. 174, § 9. 
 
 " The previous acts of Congress on this subject are Act of 1779, c. 24, 1 U. S. 
 Stats, at Large, 715 ; that of 1800, c. 33, 2 U. S. Stats, at Large, 52 ; and that of 
 1862, c. 204, 12 U. S. Stats, at Large, 606. In the first two acts it was provided 
 that all ships in sight at the time of capture should share in the prize. The act 
 of 1862 provided that, " When one or more vessels of the navy shall be within 
 signal distance of another making a prize, all shall shaxe in the prize." In The 
 Cherokee, 2 Sprague, 235, the meaning of these statutes and the English decisions 
 in regard to actual and constructive captors was considered at length ; and it was 
 held that co-operation in a blockade did not constitute the blockading vessels joint 
 captors, if the prize was captured out of signal distance of the vessel making the 
 capture, although the chase was begun in sight of several of the vessels. This 
 was affirmed in The St. John, 2 Sprague, 266. The meaning of the term " sig- 
 nal distance " was considered at length in the case of The Ella & Anna, 2 
 Sprague, 267, and it was held that where a prize is made by one vessel alone,
 
 464 ADMIRALTY PRACTICE. [BOOK HI. 
 
 entitled to share except the vessel or vessels making the capture, 
 in whicli terms shall be included vessels present at the capture 
 and rendering actual assistance in the capture.^ 
 
 All prize money adjudged to the captors is distributed in the 
 following proportions, namely: — 
 
 First. To the commanding officer of a fleet or squadron, one 
 twentieth part of all prize money awarded to any vessel or vessels 
 under his immediate command. 
 
 Second. To the commanding officer of a division of a fleet or 
 squadron, on duty under the orders of the commander-in-chief of 
 such fleet or squadron, a sum equal to one fiftieth part of any prize 
 money awarded to a vessel of such division for a capture made 
 while under his command, the said fiftieth part to be deducted 
 from the moiety due to the United States, if there be such moiety, 
 otherwise from the amount awarded to the captors : Provided, 
 That such fiftieth part shall not be in addition to any share which 
 may be due to the commander of the division, and which he may 
 elect to receive, as commander of a single ship making or assisting 
 in the capture. 
 
 Third. To the fleet-captain, one hundredth part of all prize 
 money awarded to any vessel or vessels of the fleet or squadron in 
 which he is serving, except in a case where the capture is made by 
 the vessel on board of which he is serving at the time of such cap- 
 ture ; and in such case he shall share, in proportion to his pay, 
 with the other officers and men on board such vessel, as is herein- 
 after provided. 
 
 Fourth. To the commander of a single ship, one tenth part of 
 all the prize money awarded to the ship under his command, if 
 such ship at the time of the capture was under the command of 
 
 other vessels who claim to participate in the proceeds solelv on the ground that 
 they were within signal distance, have the burden of proof upon them to establish 
 all tiie facts necessary to sustain their claim ; and that to give such vessels a right 
 to participate in the proceeds, it must appear that they were within a distance at 
 which signals could have been seen in the state of atmosphere and other circum- 
 stances existing at the time ; and that it was not enough to place them within a 
 distance at which signals might have been seen under other circumstances. See 
 also The Aries, 2 Sprague. 2G2 ; The St. John, id. 266 ; The Steamer Anglia, 
 Blatcht". Prize Cases. 1>C^<3. 
 
 ' See The Santa Brigada, 3 Rob. Adm. 52 ; La Flore, 5 Rob. Adm. 26S ; The 
 Belloua, Edw. Adm. 63.
 
 CH. XIII.] PRIZE CAUSES. 465 
 
 the commanding officer of a fleet or squadron, or a division, and 
 three twentieths if his ship was acting independently of such 
 superior officer. 
 
 Fifth. After the foregoing deductions, the residue shall l)e dis- 
 tributed and proportioned among all others doing duty on board 
 (including the fleet-captain), and borne upon the books of the 
 ship, in proportion to their respective rates of pay in tlie service. 
 
 No commanding officer of a fleet or squadron is entitled to 
 receive any share of prizes captured by any vessel not under his 
 command, nor of such prizes as may have been captured by any 
 vessels intended to be placed under his command, before they 
 have acted under his orders. Nor shall the commanding officer 
 of a fleet or squadron, leaving the station where he had command, 
 have any share in the prizes taken by ships left on such station 
 after he has gone out of the limits of his said command, nor after 
 he has transferred his command to his successor. No officer or 
 other person who has been temporarily absent on duty from a 
 vessel on the books of which he continued to be borne, while so 
 absent, is deprived, in consequence of such absence, of any prize 
 money to which he would otherwise be entitled. And he con- 
 tinues to share in the captures of the vessels to which he is 
 attached until regularly discharged therefrom.^ 
 
 A bounty is paid by the United States for each person on board 
 any ship or vessel-of-war belonging to an enemy at the commence- 
 ment of an engagement, which is sunk or otherwise destroyed in 
 such engagement by any vessel belonging to the United States, or 
 which it may be necessary to destroy in consequence of injuries 
 sustained in action, of one hundred dollars, if the enemy's vessel 
 was of inferior force, and of two hundred dollars, if of equal or 
 superior force, to be divided among the officers and crew in the 
 same manner as prize money ; and when the actual number of 
 men on board any such vessel cannot be satisfactorily ascertained, 
 it is to be estimated according to the complement allowed to vessels 
 of its class in the navy of the United States ; and there is paid as 
 bounty to the captors of any vessel-of-war captured from an enemy, 
 which they may be instructed to destroy, or which is immediately 
 destroyed for the public interest, but not in consequence of inju- 
 ries received in action, fifty dollars for every person who was on 
 
 > Act of 1864, c. 174, § 10. 
 VOL. n. 30
 
 466 ADMIRALTY PRACTICE. [BOOK III. 
 
 board at the time of such capture. All ransom money, salvage, 
 bounty, or proceeds of condemned property, accruing or awarded 
 to any vessel of the navy, is distributed and paid to the officers 
 and men entitled thereto in the same manner as prize money, 
 under the direction of the Secretary of the Navy.^ 
 
 Every assignment of prize or bounty money, or wages, due to 
 persons enlisted in the naval service, and all powers of attorney, or 
 other authority to draw, receipt for, or transfer the same, are 
 void, unless the same be attested by the captain, or other command- 
 ing officer, and the paymaster ; and in case of any assignment of 
 wages, the same must specify the precise time when they com- 
 mence. But the commanding officer of every vessel is required to 
 discourage his crew from selling any part of their prize money or 
 wages, and never to attest any power of attorney until he is satis- 
 fied that the same is not granted in consideration of money given 
 for the purchase of prize money or wages.^ 
 
 Appeals from the district courts of the United States in prize 
 causes are made directly to the Supreme Court, and must be made 
 within thirty days of the rendering of the decree appealed from, 
 unless the court shall previously have extended the time, for cause 
 shown in the particular case, and the Supreme Court is always 
 open for the entry of such appeals. Such appeals may be claimed 
 whenever the amount in controversy exceeds two thousand dollars, 
 and, in other cases, on the certificate of the district judge that the 
 adjudication involves a question of general importance. Notwith- 
 standing such appeal, the district court may make and execute all 
 necessary orders for the custody and disposal of the prize property ; 
 and in case of appeal from a decree of condemnation, may still 
 proceed to make a decree of distribution so far as to determine 
 what share of the prize shall go to the captors, and what vessels 
 are entitled to participate therein. 
 
 In any case of appeal or transfer the court below, or the appel- 
 late court, may order any original document or other evidence to 
 be sent up, in addition to tlie copy of the record, or in lieu of a 
 copy of a part thereof.'^ 
 
 All costs and all expenses incident to the bringing in, custody, 
 
 1 Act of 1864, c. 174, § 11. = Ibid. §12. 
 
 * Ibid. § 13. This section also provides for appeals then pending in the circuit 
 court
 
 CH. XIII.] PRIZE CAUSES. 467 
 
 preservation, insurance, sale, or other disposal of prize property, 
 when allowed by the court, are a charge upon the same, and to be 
 paid therefrom, unless the court decrees restitution free from such 
 charge. No payments are made from any prize fund, except upon 
 the order of the court. All charges for work and labor, materials 
 furnished, or money paid, must be supported by affidavit or 
 vouchers. The court may, at any time, order the payment, from 
 the deposit made with the assistant treasurer in the cause, of any 
 costs or charges accrued and allowed. When the cause is finally 
 disposed of, the court makes its order or orders on the assistant 
 treasurer to pay the costs and charges allowed and unpaid ; and in 
 case the final decree is for restitution, or in case there is no money 
 subject to the order of the court in the cause, any costs or charges 
 allowed by the court, and not paid by the claimants, are a charge 
 upon, and to be paid out of, the fund for defraying the expenses of 
 suits in which the United States is a party or interested.^ 
 
 The court may require any party, at any stage of the cause, and 
 on claiming an appeal, to give security for costs.^ 
 
 The net amount decreed for distribution to the United States, 
 or to vessels of the navy, is ordered by the court to be paid into the 
 treasury of the United States, to be distributed according to the 
 decree of the court. The Treasury Department credits the Navy 
 Department with each amount received to be distributed to vessels 
 of the navy ; and the persons entitled to share therein are severally 
 credited, in their accounts with the Navy Department, with the 
 amounts to which they are respectively entitled. In case of ves- 
 sels not of the navy, the distribution is made by the court to the 
 several parties entitled thereto, and the amounts decreed to them 
 are divided between the owners and the ship's company, according 
 to any written agreement between them, and in the absence of 
 such agreement, one half to the owners and one half ta the ship's 
 company, according to their respective rates of pay on board ; and 
 the court may appoint a commissioner to make such distribution, 
 subject to the control of the court, who must make due return of 
 his doings, with proof of actual payments by him, and who receives 
 no other compensation, directly or indirectly, than such as shall be 
 allowed him by the court. In case of vessels not of the navy, but 
 
 ■ Act of 1864, c. 174, § 14. = Ibid. § 15.
 
 468 ADMIRALTY PRACTICE. [BOOK III. 
 
 controlled by any department of the government, the whole amount 
 decreed to the captors is divided among the ship's company. ^ 
 
 The clerk of each district court must render to the Secretary of 
 the Treasury and the Secretary of the Navy a semi-annual state- 
 ment, of all the sums allowed by the court and ordered to be paid, 
 within the previous half-year, to the district attorney and prize 
 commissioners for services, and to marshals for fees and commis- 
 sions ; and he is required in all prize causes in the district, for the 
 purpose of the final decree of distribution, to ascertain and keep 
 an account of the amount deposited with the assistant treasurer, 
 subject to the order of the court in each prize cause, and the 
 amounts ordered to be paid therefrom as costs and charges, and 
 the residue for distribution ; and to send copies of all final decrees 
 of distribution to the Secretary of the Treasury and the Secretary 
 of the Navy ; and to draw the orders of the court for the payment 
 of all costs and allowances, and for the distribution of the residue. 
 For the said services, he is entitled to receive the sum of twenty- 
 five dollars in each prize cause, which is in full for the above- 
 described services.^ 
 
 The marshal is allowed his actual and necessary expenses, for 
 the custody, care, preservation, insurance, sale, or other disposal 
 of the prize property, and for executing any order of the court 
 respecting the same, and also a commission of one quarter of one 
 per centum on vessels, and of one half of one per centum on all 
 other prize property, calculated on the gross proceeds of each sale ; 
 and if, after he has had any prize property i]i his custody, and has 
 actually performed labor and incurred responsibility for the care 
 and preservation thereof, the same is taken by the United States 
 for its own use without a sale, or if it is delivered on stipulation 
 to the claimants, he is, in case the same shall be condemned, enti- 
 tled to one half the above commissions on the amount deposited by 
 the United States to the order of the courts, or collected upon the 
 stipulation.^ No charges of the marshal for expenses or disburse- 
 ments are allowed, except upon his oath that the same have been 
 actually and necessarily incurred for the purpose stated.* 
 
 ' Act of 1 8G4, c. 1 74, § 1 6. ^ j^id. § 1 7. 
 
 * Such compensation was not allowed previously to the passage of this act. 
 The Victory, 2 Sprague, 22G. 
 
 * Act of 1864, c. 174, § 18.
 
 CH. XIII.] PRIZE CAUSES. 469 
 
 Neither the marshal nor the clerk are permitted to retain for 
 their official services, of every kind, excepting those in prize 
 causes, more than the maximum compensation allowed to be re- 
 tained by him by the third section of the act of the twenty-sixth of 
 February, eighteen hundred and fifty-three ; and the additional 
 compensation which eitlier of said officers is permitted to retain 
 for all services, of every kind, in prize causes, is not to exceed one 
 half the maximum compensation allowed to them, respectively, by 
 the aforesaid act.^ 
 
 The district attorney and prize commissioners, except the naval 
 officer, are allowed a just and suitable compensation for their re- 
 spective services in each prize cause, to be adjusted and deter- 
 mined by the court, and to be paid as costs in the cause.^ 
 
 Each district attorney and prize commissioner, except the naval 
 officer, is required to render to the Secretary of the Interior an 
 annual account of all sums he has received for all services in 
 prize causes within the previous year ; and the district attorney 
 is allowed to retain therefrom a sum not exceeding three thousand 
 dollars for each year, in addition to the maximum compensation 
 allowed to be retained by him by the third section of the act of 
 the twenty-sixth February, eighteen hundred and fifty-three, or 
 in addition to any salary he may receive in lieu of such maxi- 
 mum compensation ; and each such prize commissioner is allowed 
 to retain a sum not exceeding three thousand dollars for each year, 
 which shall be in full for all his official services in prize causes ; 
 and any excess over those respective amounts is to be paid by 
 the officer receiving the same into the treasury of the United 
 States, and is to be credited to the fund for paying naval pensions.^ 
 
 The auctioneers employed to make sales of prize property are 
 entitled to receive commissions by a scale to be established by the 
 Secretary of the Navy, not to exceed, in any case, one half of one 
 per centum on any sum exceeding ten thousand dollars on vessels, 
 nor one per centum on said sum of other prize property, which is 
 in full for their expenses, as well as their services ; and in case no 
 such scale shall be established, they are entitled to receive such 
 compensation as the court shall deem just under the circumstances 
 of each case.^ 
 
 ' Act of 1864, c. 174, § 19. =■ Ibid. § 21. . Mbid. § 20. 
 
 * Ibid. § 22. See The Amy Warwick, 2 Sprague, 160.
 
 470 ADMIRALTY PRACTICE. [BOOK IH. 
 
 In any case of capture made by vessels of the navy, the Secre- 
 tary of the Navy may employ special counsel for captors, when, in 
 his judgment, the services of such special counsel are needed 
 in the particular case, for the due protection of the interests of the 
 captors and of the navy pension fund ; and under the direction 
 of the Secretary of the Navy such counsel may institute and pros- 
 ecute such proceedings in the case as may be necessary and proper 
 for the protection of such interests. The court may allow such 
 compensation as it shall deem just under the circumstances of 
 each case to special counsel for captors, not being the district 
 attorney or any of his assistants, whether appointed by a depart- 
 ment of the government or by the captors, for services actually 
 rendered in the cause, to be paid as costs, in whole or in part, 
 either from the entire fund or from the portion awarded to the 
 captors ; but no such allowance shall be made except for services 
 rendered on matters as to which the party the counsel represents 
 has an adverse interest to the United States, or an interest other- 
 wise proper in the opinion of the court to be represented by special 
 counsel, or for services rendered in a contestation between parties 
 claiming to participate in the distribution of the proceeds. ^ 
 
 The fees of special counsel in prize cases incurred or authorized 
 by any department of the government, or for the defence of cap- 
 tors against demands for damages made by claimants in the dis- 
 trict court, not paid by claimants, nor from the prize fund in the 
 particular cause, and audited and allowed by the department 
 incurring or authorizing them, and by the solicitor of the treasury, 
 are a charge upon, and to be paid out of, the funds appropriated 
 for defraying the expenses of suits in which the United States is a 
 party or interested.^ 
 
 Whenever the court allows fees to any witness in a prize cause,^ 
 or fees for taking evidence out of the district in which the court 
 sits, and there is no money subject to its order in the cause, the 
 same are paid by the marshal, and are repaid to him from 
 
 ' Act of 1864, c. 1 74, § 23. » Ibid. § 24. 
 
 ' If a vessel is condemned, the master and crew of the prize are not entitled to 
 wages out of the proceeds of the prize, and where such persons are detained not 
 for the purposes of the prize cause but under an order from the Navy Depart- 
 ment, after their examination in the prize cause is completed, compensation for 
 their detention cannot be charged on the prize property. The Lilla, 2 Sprague, 
 177.
 
 CH. XIII.] PRIZE CAUSES. 471 
 
 any money deposited to the order of the court in said cause ; and 
 any amount not so repaid the marshal is allowed as witness fees 
 paid by him in cases in which the United States is a party. ^ 
 
 No prize property is to be delivered to the claimants on stipula- 
 tion, deposit, or other security, except where there has been a 
 decree of restitution, and the captors have appealed therefrom, or 
 where the court, after a full hearing on the preparatory proofs, 
 has refused to condemn the property on those proofs, and has 
 given the captors leave to take further proofs, or where the claim- 
 ant of any property satisfies the court that the same has a peculiar 
 and intrinsic value to him, independent of its market value. In 
 any of these cases, the court may deliver the property on stipula- 
 tion or deposit of its value, if it is satisfied that the rights and 
 interests of the United States and captors, or of other claimants, 
 will not be prejudiced thereby, a satisfactory appraisement being 
 first made, with an opportunity given to the district attorney and 
 naval prize commissioner to be heard as to the appointment of ap- 
 praisers. And any money deposited in lieu of stipulation, and all 
 money collected on a stipulation, not being costs, shall be depos- 
 ited with the assistant treasurer in the same manner as proceeds 
 of a sale.2 
 
 Whenever any captured vessel, arms, munitions, or other mate- 
 rial, is taken for the use of the government before it comes into 
 the custody of a prize court, it should be surveyed, appraised, and 
 inventoried by persons as competent and impartial as can be 
 obtained, and the survey, appraisement, and inventory must be sent 
 to the court in which proceedings are to be had ; and if taken 
 afterwards, sufficient notice must first be given to enable the court 
 to have the property appraised for the protection of the rights of 
 the claimants and captors. In all cases of prize property taken 
 for, or appropriated to, the use of the government, the department 
 for whose use it is taken or appropriated, must deposit the value 
 thereof with the assistant treasurer of the United States nearest to 
 the place of the session of the court, subject to the order of the 
 court in the cause. ^ 
 
 In case of any capture if, by reason of its condition, or because 
 the whole has been appropriated to the use of the United States, 
 
 1 Act of 1864, c. 174, §25. « Ibid. § 26. 
 
 ' Ibid. § 27.
 
 472 ADMRALTY PRACTICE. [BOOK III. 
 
 no part of the captured property can be sent in for adjudication, 
 or if the captured property be entirely lost or destroyed, proceed- 
 ings for adjudication may be commenced in any district the Secre- 
 tary of the Navy may designate. And in any such case the 
 proceeds of anything sold, or the value of anything taken or 
 appropriated for the use of the government, must be deposited 
 with the assistant treasurer in or nearest to that district, subject 
 to the order of the court in the cause. If, when no property can 
 be sent in for adjudication, the Secretary of the Navy does not, 
 within three months after any capture, designate a district for the 
 institution of proceedings, the captors may institute proceedings 
 for adjudication in any district. And if, in any case of capture, 
 no proceedings for adjudication are commenced within a reason- 
 able time, any parties claiming the captured property may, in any 
 district court, as a court of prize, move for a monition to show 
 cause why such proceedings shall not be commenced, or institute 
 an original suit in such court for restitution, and the monition 
 issued in either case shall be served on the attorney of the United 
 States for the district, and on the Secretary of the Navy, as well 
 as on such other persons as the court shall order to be notified. ^ 
 
 If it appears to the court, in the case of any prize property 
 ordered to be sold, that it will be for the interest of all parties to 
 have it sold in another district, the court may direct the marshal 
 to transfer the same to the district selected by the court for the 
 sale, and to insure the same with proper orders as to the time and 
 manner of selling the same. And it is the duty of the marshal so 
 to transfer the property ; and keep and sell the same in like man- 
 ner as if the property were in his own district ; and he must de- 
 posit the gross proceeds of the sale with the assistant treasurer 
 nearest to the place of sale, subject to the order of the court in 
 which the adjudication thereon is pending ; and the necessary ex- 
 pense attending the insuring, transferring, receiving, keeping, and 
 selling the said property is a charge thereupon and upon the pro- 
 ceeds thereof; and whenever any such expense is paid in advance 
 by the marshal, and he is not repaid from the proceeds, any, amount 
 not so repaid is allowed him as in case of expenses incurred 
 in suits in which the United States is a party. The Secretary 
 of the Navy may, in like manner, either by a general regulation or 
 
 ' Act of 1864, c. 174, § 28.
 
 CH. XIII.] PRIZE CAUSES. 473 
 
 special direction in any cause, require a marshal to transfer any- 
 prize property from the district in which the judicial proceedings 
 are pending to any other district for sale, and the same proceed- 
 ings shall be had as if such transfer had been made by order of 
 the court, as hereinbefore provided.^ 
 
 If any person wilfully does any act, or aids, assists, or advises, 
 in the doing of any act relating to the bringing in, custody, preser- 
 vation, sale, or other disposition of any property captured as prize, 
 or relating to any documents or papers connected with the prop- 
 erty, or to any deposition or other document or paper connected 
 with the proceedings, with intent to defraud, delay, or injure the 
 United States, or any captor or claimant of such property, he is, 
 on conviction, punished by a fine not exceeding ten thousand dol- 
 lars, or by imprisonment not exceeding five years, or both, at the 
 discretion of the court.^ 
 
 The term " vessels of the navy," in the above provisions includes 
 all armed vessels officered and manned by the United States, and 
 under the control of the department of the navy,^ 
 
 The foregoing provisions are applicable to all captures made as 
 prize by authority of the United States, or adopted and ratified by 
 the President of the United States.* 
 
 In prize causes the libel need not set forth specifically the grounds 
 on which condemnation is sought.^ An answer in the nature of 
 pleading is irregular ; and where a simple claim is filed, and the 
 claimant annexes thereto his answer as a " test affidavit," so much 
 of the document as goes beyond the facts of the claim is not to be 
 regarded.*^ 
 
 If no claim is interposed, the court may proceed to a hearing of 
 the cause upon the ship's papers and the evidence taken in prepar- 
 atory, and if the property appears to belong to enemies, it is imme- 
 diately condemned. If its national character appear to be doubt- 
 ful, or neutral, and no claim is interposed, the court do not 
 proceed to a final decree, but the cause is postponed, with a view 
 to enable any person having a title to assert it, within a reasonable 
 time, before the court. This reasonable time has been, by the 
 general usage of nations, fixed at a year and a day after the insti- 
 
 1 Act of 18G4, c. 1 74, § 30. * Ibid. § 33. 
 
 2 Ibid. § 31. * The Revere, 2 Sprague, 107. 
 8 Ibid, § 32. * The Revere, 2 Sprague, 107.
 
 474 ADMIRALTY PRACTICE. [BOOK III. 
 
 tutioii of the prize proceedings ; and if no claim be interposed 
 within that period, the property is deemed to be abandoned, and is 
 condemned to tlie captors for contumacy, and default of the sup- 
 posed owner. ^ 
 
 Property arrested as prize cannot be attached on the instance 
 side of the court, by persons claiming a lien on the prize, which 
 they contend is superior to the rights of the captors.^ 
 
 The expenses of the crew of a prize vessel who are not needed 
 or used as witnesses, incurred after their arrival in port, are not 
 chargeable upon the proceeds of the prize.^ 
 
 Mortgages on vessels captured jure belli, are treated only as 
 liens, subject to be overriden by the capture, and not as jura in re, 
 capable of enforcement superior to the claims of the captors.* 
 
 Prize courts deny damages, or costs, in cases of seizure made 
 upon " probable cause " ; that is to say, where there were circum- 
 
 * The Harrison, 1 Wheat, 298. See also The Avery, 2 Gallis. 386; The 
 Staadt Embden, 1 Rob. Adin. 29. la The Julia, 2 Sprague, 166, Sprague, J., 
 said : " If the vessel and cargo are to be condemned, it must be for default of claim- 
 ants. I am aware that the rule of the prize courts, to allow a year and a day in 
 case of neutral vessels, for claimants to appear, is not a vested right in neutrals. 
 It is allowed as of right where the condemnation, if decreed, must be solely on the 
 ground of default. If the captors show a clear case of enemy property, or of con- 
 traband, or of breach of blockade, the court may condemn the vessel or cargo, 
 although they are under neutral flag and papers, in the absence of claimants, 
 without waiting a year and a day. So, if it shall be proved that the neutral 
 owners have had notice and opportunity to appear, condemnation may go at once, 
 solely on the ground of default, and the presumptions arising therefrom, without 
 other proof. But I think that in this case, in the present state of the proofs, my 
 duty to neutrals" requires me to enforce the rule of the year and a day, and I do 
 it on the ground of the mistake or neglect of the capturing power to send in the 
 proper evidence when it was at their option to do so or not." 
 
 ' The Nassau, 4 Wallace, 634. 
 ' The Britannia, 2 Sprague, 225. 
 
 * The Hampton, 5 Wallace, 372. See also Union Ins. Co. v. United States, 6 
 Wallace, 759; and Act of 1863, c. 90, 12 U. S. Stats, at Large, 762. In The 
 Siren, U. S. Supreme Court, Feb. 1869, a prize, while on her way to port for ad- 
 judication, came into collision with another vessel. After the prize was libelled, 
 condemned, and sold as prize, the owners of the vessel damaged intervened and 
 prayed that their damages resulting from the collision might be satisfied out of 
 the proceeds. The collision took place in 1865. The Supreme Court held, re- 
 versing the decree of the District Court for the District of Massachusetts, that 
 
 , the prayer of the interveners should be granted.
 
 CH. XIII.] PRIZE CAUSES. 475 
 
 stances sufficient to warrant suspicion, though not to warrant con- 
 demnation.^ 
 
 Costs are also sometimes awarded against the prize, although 
 the decree is for a restoration of tlie property. ^ 
 
 Only the papers and documents delivered up to the captors are 
 admissible in evidence, and if the captured conceal any, they can- 
 not afterwards put them in.^ The case is determined only on this 
 evidence and the documents of the prize.*^ The court may, how- 
 ever, if the case demands it, admit further proof, from either party, 
 alone or from both. Mr. Justice Story, in one case said : " Farther 
 proof is not a matter of course. It is granted in cases of honest 
 mistake or ignorance, or to clear away any doubts or defects con- 
 sistent with good faith. But if the parties have been guilty of 
 gross fraud or misconduct, or illegality, farther proof is not 
 allowed ; and under such circumstances, the parties are visited 
 with all the fatal consequences of an original hostile character." ^ 
 Where there is a repugnance between the documents and the dep- 
 ositions, the conviction of the court need not be kept in equilihrio 
 till it can receive further proof.^ Further proof has been allowed 
 where the suspicion or doubt was caused by extrinsic evidence.'^ 
 
 Oral testimony is not admitted in prize causes.^ 
 
 It must also be remembered, " that the property subjected to 
 the prize jurisdiction is itself, in the first instance, a part of the 
 
 ' The Thompson, 3 Wallace, 155 ; The La Manche, 2 Sprague, 207. 
 
 ' The Dashing Wave, 5 Wallace, 170 ; The James Andrews, 2 Sprague, 121. 
 
 ' The Ann Green, 1 Gallis. 274. 
 
 * The Dos Hermanos, 2 Wheat. 76 ; The Ann Green, 1 Gallis. 274, 281. 
 
 * The Dos Hermanos, 2 Wheat. 76. 
 
 * The Vigilantia, 1 Rob. Adm, 1, 7. 
 
 ' The Romeo, 6 Rob. Adm. 351. But this is certainly pressing the point very 
 far. A summary of the English cases where further proof was allowed, and which 
 was written by Mr. Justice Story, may be found in the appendix to the first vol- 
 ume of Wheaton, p. 504. See also The London Packet, 2 Wheat. 371 ; The 
 Pizarro, id. 227; The Frances, 8 Cranch, 348; The Grotius, id. 456; The Ade- 
 line, 9 Cranch, 244; The Mary, 8 Cranch, 388; The Venus, 1 Wheat. 112; The 
 Fortuna, 2 Wheat. 161, 3 Wheat. 236; The Friendschaft, 3 AVheat. 14; The 
 Atalanta, 3 Wheat. 409, 5 Wheat. 433 ; The St. Lawrence, 8 Cranch, 434 ; The 
 Dos Hermanos, 2 Wheat. 76 ; The Hazard v. Campbell, 9 Cranch, 205 ; The Anne, 
 3 Wheat. 435; La Nereyda, 8 Wheat. 108; The Amiable Isabella, 6 Wheat. 1 ; 
 The Sally Magee, 3 Wallace, 459; The Amy Warwick, 2 Sprague,' 150; The 
 Cuba, 2 Sprague, 168; The Lilla, id. 177. 
 
 * The Dos Hermanos, 2 Wheat. 76.
 
 476 ADMIRALTY PRACTICE. [BOOK III. 
 
 necessary evidence in the cause, upon which acquittal or condem- 
 nation must go, and that tlie court will, upon laying a proper 
 foundation, direct a survey, in order to ascertain its nature and 
 character." ^ 
 
 Although the evidence of the captors is not allowed,^ yet papers 
 from other causes, and papers found on board other ships, are 
 sometimes permitted, and, in the language of Mr. Justice Story, 
 " in other instances of pregnant suspicion, or reasonable doubt, 
 the courts will not suffer a rule, founded upon the mere conven- 
 ience of practice, to exclude the captors from the benefit of diligent 
 inquiries."^ But on an application for further proof, the court 
 refused to allow the captors to put in a letter which had been 
 taken from the vessel previous to her capture by another vessel.^ 
 
 In cases of joint or collusive capture, the usual simplicity of 
 prize proceedings is necessarily departed from, and where there is 
 the least doubt, other evidence than that arising from the captured 
 vessel, or invoked from other prize causes, may be resorted to.^ 
 
 In causes of prize, the ownership is a fact of great and decisive 
 importance ; and of this the bill of sale — a document in universal 
 use — is almost conclusive evidence.^ 
 
 The principal grounds for condemning a ship as prize, where 
 the question of nationality is in dispute, are, 1. The entire want 
 
 ' The Liverpool Packet, 1 Gallis. 513, 520. 
 
 ' The Sarah, 3 Rob. Adm. 330. 
 
 ' The Ann Green, 1 Gallis. 274, 282. See also The Vrlendschap, 4 Rob. Adm. 
 166; The Romeo, 6 Rob. Adm. 351. But see Dearie v. Southwell, 2 Lee, 93, 
 where it was doubted whether proceedings could be invocated except where the 
 cause was between the same parties or on the same point. In The Experiment, 4 
 Wheat. 84, it was held that depositions taken in one prize cause as further proof 
 ■were not admissible in another prize cause, but the rule was said to be that orig- 
 inal evidence taken on the standing interrogatories was. In The Springbok, 5 
 Wallace, 1, it was said that regularly invocation was not made until after a cause 
 had been fully heard on the ship's documents and the preparatory proofs, and sus- 
 picious circumstances appeared from these; but it was held that although the 
 court below had allowed documents found on board other vessels to be invoked in 
 the first hearing, the decree would not be necessarily reversed, as decrees of con- 
 demnation had passed in both the cases invoked, one pro confesso, and the other 
 by a decree of the highest appellate court. 
 
 * The Sarah, 3 Rob. Adm. 330. 
 
 * Tlie George, 1 Wheat. 408. 
 
 " The Vigilantia. 1 Rob. Adm. 1 ; The Sisters, 5 id. 155 ; The San Jose Indiano, 
 2 Gallis. 268, 284.
 
 CH. XIII.] PRIZE CAUSES. 477 
 
 of the necessary papers ; 2. Their destruction ; 3. Their material 
 alteration or falsification ; ^ and 4. The time when the papers were 
 made out, as whether before or after the war, is often material. 
 
 5. Next in importance is the conduct of the master and officers ; 
 
 6. Their prevarication or evident falsehood in the preliminary 
 proof; 7. Their refusal or inability to give a good account of the 
 ship and cargo ; 8. The domicil of the master and officers. 
 
 The spoliation of papers, by which is meant, not merely their 
 total destruction, but such falsification as makes them useless or 
 worse, as evidence, is said to be regarded by the law of nations as 
 conclusive evidence of hostile character or other liability to cap- 
 ture. In England, the courts permit it to be explained,^ and the 
 admiralty courts of this country are, perhaps, even more lenient 
 than those of England.'^ It is, however, always and everywhere a 
 circumstance of grave suspicion.^ 
 
 There are also many other circumstances indicative of a want of 
 good faith and fair dealing on the part of the claimants of the prize 
 and their agents and servants, which render the property subject 
 to condemnation.^ 
 
 Persistent misrepresentation by the claimant of the character 
 and destination of the voyage of a vessel is sufficient cause for con- 
 demnation of the vessel and cargo.^ 
 
 So, where a former enemy owner remained as master a year 
 after the alleged sale to a neutral, and the alleged neutral owners, 
 although they resided near the place where the property was 
 libelled, handed the whole matter of the claim and defence over 
 to the former owner as their agent.''' 
 
 1 The Cuba, 2 Sprague, 168. 
 
 » See The Hunter, I Dods. 480; The Rising Sun, 2 Rob. Adm. 104; The 
 Maria Magdalena, id. 106. In The Two Brothers, 1 Rob. Adm. 131, the sup- 
 pression of papers, though said not to be cause for condemnation, was held to raise 
 great suspicion, and the defence that they were merely private papers was held 
 to be no excuse. 
 
 ^ See The Pizarro, 2 Wheat. 227. 
 
 * The Circassian, 2 Wallace, 135; The Andromeda, id. 482; The Bermuda, 
 3 Wallace, 514. 
 
 ° The Cornelius, 3 Wallace, 214 ; The Springbok, 5 id. 1 ; The Jenny, id. 183 ; 
 The Pearl, id. 574 ; The Sea Lion, id, 630; The Adela, 6 id. 266. 
 
 ^ The Revere, 2 Sprague, 107 ; The Ocean Bird, 2 Sprague, 261. 
 
 ^ The Andromeda, 2 Wallace, 481.
 
 478 ADMIRALTY PRACTICE. [BOOK III. 
 
 Intent to violate a blockade may be inferred in part from delay 
 of the vessel to sail after being fully laden, and from clianging the 
 ship's course in order to escape a ship-of-war cruising for blockade- 
 runners, or to elude visitation and search.^ So it may be inferred 
 from bills of lading of cargo, from letters and papers found on 
 board the captured vessel, from acts and words of the owners or 
 hirers of the vessel and the shippers of the cargo and their agents.^ 
 
 If a neutral owner of the property captured claims another part, 
 which belongs to an enemy, for the purpose of deceiving the court, 
 the part belonging to the neutral will be condemned as a penalty 
 for his fraudulent conduct.^ 
 
 The interest of witnesses does not render them incompetent in 
 prize causes, any more than in those of salvage, and for the same 
 reason of necessity.- But their interest requires the court to watch 
 them narrowly.* 
 
 The official declarations of the proper authorities of a foreign 
 State are evidence of facts which are within the scope of their 
 authority, and the proper subjects of such declaration.^ 
 
 Certain presumptions of law exist in causes of prize, and should 
 be stated. Possession by an enemy is presumptive proof, though 
 not conclusive, of hostile character.^ So ships are presumed to 
 belong to the country under whose flag they sail. And it has 
 been thought that this presumption should be conclusive, on the 
 ground that no owner should be permitted to deny the character 
 under which he seeks protection and safety.'' 
 
 If the capture is made in neutral waters, this is not a defence 
 which an owner of the vessel can avail himself of.^ 
 
 * The Baigoriy, 2 Wallace, 474. 
 
 * The Circassian, 2 Wallace, 135. 
 ' The Lilla, 2 Sprague, 17 7. 
 
 * The Anne, 3 Wheat. 435 ; The Grotius, 9 Cranch, 368. See also The Fal- 
 con, 6 Rob. Adm. 194, 197 ; The James Cook, Edw. Adm. 261 ; The Diana, 2 
 Gallis. 93, 97 ; The Magnus, 1 Rob. Adm. 31, 35. 
 
 * The Huntress, 6 Rob. Adm. 104, 110. 
 
 « The Resolution, 2 Dall. 19. See also The Countess of Lauderdale, 4 Rob. 
 Adm. 283 ; The Magnus, 1 id. 31. 
 
 ' The Vigilantia, 1 Rob. Adm. 1 ; The Vrow Anna Catharina, 5 id. 161 ; The 
 Success, 1 Dods. 131 ; The Fortuna, id. 81. 
 
 " The Sir William Peel, 5 Wallace, 517 : The Lilla, 2 Sprague, 177.
 
 CH. XIV.] COSTS IN ADMIRALTY. 479 
 
 CHAPTER XIV. 
 
 OF COSTS IN ADMIRALTY. 
 
 Costs in admiralty do not necessarily follow the result of the 
 suit, but are entirely within the discretion and contiol of the court, 
 and although each court has certain rules to which it adheres 
 under ordinary circumstances, it does not hesitate to make such a 
 special decree as to costs in any case as the merits and the justice 
 of that case, or public policy, may seem to require. 
 
 The general rule may be said to be the same in admiralty as at 
 common law and in equity, that costs follow the result, and that 
 the successful party is entitled to them.^ But this rule is often 
 departed from in practice. Thus costs have been decreed for the 
 plaintiff where he recovered no debt, because he had been induced 
 to begin the suit by the misconduct of the defendant.^ 
 
 Where a suit had been brought on a state of facts which, as the 
 law had previously been understood and administered in the court, 
 would have authorized a recovery, but which under a recent decis- 
 ion of the Supreme Court of the United States was deemed in- 
 sufficient, the court ordered the libel to be dismissed without 
 costs.^ 
 
 ■ And where a party recovers but a small part of the sum de- 
 manded, costs have been refused.* 
 
 Where a libel was dismissed in the district court for want of 
 jurisdiction, and costs awarded against the libellant, and on appeal 
 by the libellant from the whole decree, the circuit court affirmed so 
 much of the decree as dismissed the libel, and reversed so much of 
 it as awarded costs, no costs in the circuit court were allowed to 
 either party .^ 
 
 ' In The Segredo, 1 Spinks, 36, 63, the court said that costs were given 
 in that case because, " it is now laid down by all the courts that costs are to follow 
 the results of the case." 
 
 ^ Pettit's Case, U. S. D. C. Mass., Dunlap's Adm. Practice, 102. 
 
 ' The Sarah Starr, 1 Sprague, 453. 
 
 * The John Walls, Jr., 1 Sprague, 178. 
 
 « The McDonald, 4 Blatchf. C. C. 477.
 
 480 ADMIRALTY PRACTICE. [BOOK III. 
 
 In salvage, it has been said that the general rule must be applied 
 with somewhat greater leniency and relaxation because of the ex- 
 pediency of encouraging salvors in the rescue and preservation of 
 property upon the seas.^ So in a case where a legal set-ofF was to 
 be made against the claim of a mate for wages, which would have 
 been more than his wages, the court ordered that the claim for 
 wages and costs should be allowed in full, and then the set-off 
 made only against this amount.^ And costs are not decreed 
 against seamen, if they had any probable cause for bringing their 
 action, unless it is clearly shown that they are able to pay them.^ 
 If many suits are brought where all the interests might have been 
 embraced in one, only the costs of one are allowed.^ So where a 
 suit was brought against the owners of a vessel, and another suit 
 against the master, for the wrongful discharge of the libellant at a 
 foreign port, it was held that, as the master had done him no in- 
 jury, except that resulting from the breach of the contract, and as 
 the libellant could recover for that against the owners, the suit 
 against the master should be dismissed with $10 costs to the re- 
 spondent.^ 
 
 If several seamen join in one libel, and severally have decrees 
 for their respective wages, and from some appeals are taken, while 
 from others no appeal lies, those who have obtained final decrees 
 can recover all the costs they have advanced or for which they are 
 liable.^ 
 
 Where the log of a vessel had been tampered with by the master 
 and mate of a vessel, the court, although rejecting the claims of 
 salvors, condemned the vessel to pay the costs.' 
 
 ^ The Princess Alice, 3 W. Rob. 138, 143. From this reasoning it might be 
 inferred that where salvors were entitled to recover, they should have their costs, 
 but in The Red Rover, 3 W. Rob. 150, a claim of salvage was pronounced for, 
 but without costs, the nature of the claim being very trivial. See The Joseph C. 
 Griggs, 1 Bened. Adm. 81 ; The Theodore, Swabey, Adm. 351 ; The Martha, id. 
 489 ; The Sovereign, Lush. Adm. 85 ; The Little Joe, id. 88 ; The Alpha, id. 
 89. 
 
 " Anonymous, U. S. D. C. IMass., Dunlap's Adm. Practice, 102. 
 
 ' See ante, p. 418, n. 1. 
 
 * The Henry Ewbank, 1 Sumner, 400, 408. 
 
 * Sheffield v. Page, 1 Sprague, 285. 
 
 * Two Hundred and Ninety Barrels of Oil, 1 Sprague, 475. 
 ' The Anastasia, 1 Bened. Adm. 166.
 
 CH. XIV.] COSTS IN ADMIRALTY. 481 
 
 The costs of further answers are made to fall on the defendant, 
 if they are made necessary by his fault. 
 
 The taxable costs are now regulated by statute.^ This statute 
 gives proctors, " on a final hearing in admiralty, a docket fee of 
 twenty dollars," ^ except in cases wliere the libellant recovers less 
 than fifty dollars, and then the docket fee is only ten dollars. 
 " For each deposition taken and admitted in evidence in the cause, 
 two dollars and fifty cents." ^ A compensation of five dollars is 
 also allowed for the services rendered in cases removed from a 
 district to a circuit court by appeal.* The act also provides for 
 clerks' fees and marshals' fees.^ 
 
 Counsel fees have been sometimes allowed as part of the costs ; ^ 
 
 * Act of 1853, c. 80, 10 U. S. Stats, at Large, 161. The Act of 1847, c. 55, 
 9 U. S. Stats, at Large, 181, provided that where the amount recovered was 
 less than $ 100, the costs should not be more than 50 percent of the amount, and 
 should be divided in a certain way. But it has been held that this statute is 
 repealed by the act of 1853, and full costs ai-e now allowed although the amount 
 is less than one hundred dollars. The Sloop Canton, 21 Law Rep. 473. 
 
 ^ This is construed to give one docket fee for each court, and not one for each 
 term. Dedekam v. Vose, 3 Blatchf. C. C. 77. The docket fee is taxable on a 
 final disposition of the cause by the court. Hayford v. Griffith, 3 Blatchf C. C. 
 79. The appeal in this case was dismissed on motion for irregularity in the way 
 it was brought up. Held, that the docket fee was taxable. See Dedekam v. 
 Vose, 3 Blatchf C. C. 153. 
 
 ^ If a deposition is taken and used in the district court, and then read in the 
 circuit court, a fee is not taxable for it in the circuit court. Dedekam v. Yose, 3 
 Blatchf. C. C. 77. See Stimson v. Brooks, 3 Blatchf. C. C. 456. 
 
 * Where a case was removed into the circuit court before the passage of this act, 
 it was held that this fee was not taxable. Dedekam v. Vose, 3 Blatchf. C. C. 77, 
 
 * Under the first section of the act of 1853, which provides that " in case the 
 debt or claim shall be settled by the parties without a sale of the property, the 
 marshal shall be entitled to a commission of one per cent on the first five hundred 
 dollars of the claim or decree, and one half of one per cent on the excess over 
 five hundred dollars," it has been held that where the claim was settled before the 
 claimant appeared in court, the marshal was not entitled to the commis^'ion. 
 Bone V. Steamer Norma, 1 Newb. Adm. 533. If a marshal holds a vessel by vir- 
 tue of two warrants to arrest, in different suits, the custody fees are to be charged 
 equally upon the two suits. The John Walls, Jr. 1 Sprague, 1 78. 
 
 * The Apollon, 9 Wheat. 362. Mr. Justice Story, in delivering the opinion of 
 the court, said : " The fifth item, allowing five Imndred dollars as counsel fees, is, 
 in our opinion, unexceptionable. It is the common course of the admiralty to 
 allow expenses of this nature, either in the shape of damages, or as part of the 
 costs. The practice is very familiar on the prize side of the court. It is not less 
 
 VOL. II. 31
 
 482 ADMIRALTY PRACTICE. [BOOK III. 
 
 but we presume that tliej would not be now, except to the extent 
 prescribed by the above statute.^ 
 
 The subject of costs upon an appeal to the Supreme Court has 
 been a matter of much controversy, but it is now settled by a gen- 
 eral rule of the court passed in 1838.^ This provides that " In all 
 cases where any suit shall be dismissed in this court, except where 
 the dismissal shall be for want of jurisdiction,""^ costs shall be 
 allowed for the defendant in error, or appellee, as the case may 
 be, unless otherwise agreed by the parties. 
 
 " In all cases of affirmance of any judgment or decree in this 
 court, costs shall be allowed to the defendant in error, or appellee, 
 as the case may be, unless otherwise ordered by the court.* 
 
 " In all cases of reversals of any judgment or decree in this 
 court,^ (except where the reversal shall be for want of jurisdic- 
 tion,^) costs shall be allowed in this court for the plaintiff in error 
 or appellant, as the case may be, unless otherwise ordered by the 
 court. 
 
 the law of the court in instance causes, it resting in sound discretion to allow or 
 refuse the claim." See also Carter v. Am. Ins. Co. 3 Pet. 307. 
 
 ^ The Ship Liverpool Packet, 2 Sprague, 37. 
 
 - Rule 45, 1 How. xxxvi. This rule is now the 24th, 21 How. xiii. 
 
 5 MTvers v. Wattles, 9 Wheat. 650. In Winchester v. Jackson, 3 Cranch, 514, 
 decided before the above rule was passed, costs were allowed upon a dismission of 
 a writ of error for want of jurisdiction, the original defendant being also the 
 defendant in error. In Strader v. Graham, 18 How. 602, a suit was brought in a 
 State court and decided in favor of the plaintiff. The defendant then sued out a 
 writ of error to the Supreme Court of the United States, and the writ of error 
 was dismissed for want of jurisdiction. The original plaintiff then applied to have 
 his costs in the Supreme Court taxed, but the court refused to do so, as the cause 
 was dismissed for want of jurisdiction. See also The Mayor v. Cooper, 6 Wallace, 
 247 ; The McDonald, 4 Blatchf. C. C. 477. 
 
 * In Post r. Jones, 19 How. 150, a whaling vessel was wrecked in Behring's 
 Straits, and was sold, together with the oil and hone on board, to the captains of 
 three other whaling vessels, who brought the cargo home. The court held the sale 
 void, but decreed salvage, affirming the decree of the circuit court, from which the 
 salvors had appealed. In regard to costs, the court said : " As this case has pre- 
 sented very unusual circumstances, and as we think the claimants have acted in 
 good faith in making their defence, all the taxed costs should be paid out of the 
 fund in court." 
 
 ' Bradstreet v. Potter, 16 Pet. 317. 
 
 ' ^lontalet v. Murray, 4 Cranch, 46. The clause in brackets is omitted in the 
 new rule.
 
 CH. XIV.] COSTS IN ADMIRALTY. 483 
 
 "• Neither of the foregoing rules shall apply to cases where the 
 United States are a party ; but in such cases no costs shall be 
 allowed in this court for or against the United States.^ 
 
 " In all cases of the dismissal of any suit in this court, it shall 
 be the duty of the clerk to issue a mandate, or other proper pro- 
 cess, in the nature of a procedendo, to the court below, for the 
 purpose of informing such court of the proceedings in this court, 
 so that furtlier proceedings may be had in such court as to law 
 and justice may appertain. 
 
 " When costs are allowed in this court, it shall be the duty of 
 the clerk to insert the amount thereof in the body of the mandate, 
 or other proper process, sent to the court below, and annex to the 
 same the bill of items taxed in detail." 
 
 If judgment is entered up in the Supreme Court, and a blank 
 left for the amount of the costs, it is competent for the court be- 
 low, at a subsequent term, to tax the costs and have the blank 
 filled nunc pro tunc? If the judgment of the court below is re- 
 versed, the appellant is of course entitled to his costs in that court.^ 
 And a judgment for costs includes all the costs belonging to the 
 suit, whether prior or subsequent to the rendition of the judgment.* 
 If the libel is dismissed " without costs to either party," the liabil- 
 ity of a party to the clerk for his fees for services rendered to such 
 party, is not thereby affected.^ 
 
 At common law, where costs always follow the result, it is neces- 
 sary to decide claims to nominal damages upon strict legal princi- 
 ples, but in admiralty, where costs are discretionary, suits for mere 
 nominal damages, unless they are so connected with a substantial 
 right, that it can only be vindicated in this way, will not be enter- 
 tained.^ 
 
 1 United States v. Boyd, 5 How. 29. 
 
 * Sizer v. Many, 16 How. 98. 
 
 ' M'Kniglit V. Craig, 6 Cranch, 183 ; Riddle v. Mandeville, G Crancb, 86. 
 
 * Peyton v. Brooke, 3 Cranch, 92. 
 
 ^ In the Matter of Stover, 1 Curtis, C. C. 201. 
 « Barnett v. Luther, 1 Curtis, C. C. 434.
 
 484 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER XV. 
 
 OF TENDEES. 
 
 In the courts of common law the doctrhie of tender is very pre- 
 cise, and the practice equally so. But this is not so in admiralty ; 
 there the thing itself is approved and encouraged, and all ques- 
 tions relating to it are determined only ex cequo et bono. Any real 
 offer to pay, by one then 'ready and able to pay, is treated as a 
 valid tender without inquiring whether the money was produced 
 or not, or in what form,^ and if an objection be made as to the 
 method of tender, he who makes it is allowed a reasonable time to 
 procure the means required. 
 
 If a premature action is brought, where a fair settlement has 
 been offered, the plaintiff, though he succeed, will not get his 
 costs, and may have to pay them.^ In England tenders are more 
 strictly regarded, in cases of salvage,-^ (and this has been so said 
 
 1 See Dedekam v. Vose, 3 Blatchf. C. C. 44. In a note to Mayo v. Snow, 2 Cur- 
 tis C C. 102, 103, it is said : " I am informed that in the district court, Sprogue, J., 
 on the question of tender, held that an oflfer to pay, made in good faith, Avith 
 undisputed ability and readiness to perform, renewed in the answer in court, was 
 a good and sufficient tender in the admiralty, although originally accompanied 
 •with a request for a receipt, and although the money was not subsequently brought 
 into court." 
 
 « See Dunlap's Adm. Practice, 103. 
 
 ' The Vrow Margaretha, 4 Rob. Adm. 103. The tender does not appear to 
 have been made in this case until after the suit was commenced, and it was a ver- 
 bal one and the evidence rendered it uncertain whether it was intended to include 
 costs. Sir Wm. Scott held under these circumstances that although the amount 
 tendered was a sufficient compensation for the services performed, yet costs should 
 be allowed, and said : "I see enough of the inconvenience of proceeding in this 
 loose manner, to make it necessary for me to require in future, as a universal 
 rule of court, that a tender should be made, in the first stage of the proceeding, 
 in a regular form. The court will then consider its sufficiency ; and if it shall be 
 pronounced sufficient, the court will make the party Avho refuses such an offer 
 liable not only to his own costs, but also to those of the other party, if it shall 
 appear that proceedings have been ve.\atiou?ly pursued." And in The Ocean, 1 
 W. Kob. 334, it was held that where it was alleged in an act on petition that
 
 CH. XV.] TENDERS. 485 
 
 in this country,^) where everything of this sort is usually done by 
 formal acts in court. But if a distinct and sufficient tender of 
 compensation and costs up to the time of tender were made, actu- 
 ally and in good faith, and rejected, we do not believe the salvors 
 would, in this country, be permitted to recover their costs, how- 
 ever informal it might be.^ And it has been held, that if such 
 a tender is made in England, and the parties refuse to accept it, 
 but proceed in the case, they are not entitled to subsequent 
 costs.^ 
 
 The costs of a suit have been cast upon a proctor whose miscon- 
 duct caused the suit and the expense.* If a tender be made in 
 
 certain services had been rendered, and certain damages sustained, a tender to 
 stop the action and to entitle the party making it to all the benefits of a tender in 
 court, must include all the damages as well as the compensation. See also The 
 Sovereign, Lush. Adm. 85 ; The Ulster, Lush. Adm. 424. 
 
 1 Evans V. The Ship Charles, 1 Newb. Adm. 329. 
 
 " See Hessian v. The Edward Howard, 1 Newb. Adm. 522. 
 
 ^ The John & Thomas, 1 Hagg. Adm. 157, n.; The Eleanora Charlotta, id 
 156. See also The Frederick, id. 211, 218. In The Emu, 1 W. Rob. 15, where 
 a tender in a salvage suit was pronounced to be sufficient, no costs were given, 
 but the court stated that in future cases, where a tender was pronounced for, and 
 held to be sufficient, costs would always be given. We should construe this lan- 
 guage to mean that costs would be given against the salvors, for the learned judge 
 went on to say : " When the question as to the sufficiency of the tender is nicely 
 balanced, the court will not consider itself bound to give costs, but the general 
 principle will be in favor of costs." In The Batavier, 1 Spinks, 169, the ten- 
 der was pronounced sufficient, and the salvors condemned in costs. The general 
 principle was stated by Dr. Lushington in the case of The Queen, cited 1 Spinks, 
 175, as follows: "The rule I have endeavored to follow is not to bind myself in 
 all salvage cases to give costs against salvors, unless I think the tender was so large 
 that the salvors in the exercise of a sound discretion could not do otherwise than 
 accept it. Here I think the tender is sufficient, but it is not so much as to 
 lead me to blame the salvors for not accepting it. I therefore pronounce for the 
 tender, but without costs." See also The Albatross, and the case of The Chan- 
 cellor, both cited 1 Spinks, 175; The Hopewell, 2 Spinks, 249. In the case 
 of The Paris, 1 Spinks, 289, 291, Dr. Lushington said : " I consider it my 
 duty to pronounce for the tender ; and, I am sorry to say, to condemn the par- 
 ties in the costs. That is a measure which I am reluctant to pursue, though, 
 according to the practice in other courts, where the tender is considered sufficient, 
 they uniformly follow that course. I have considered myself justified in some 
 cases in not proceeding to that extremity on grounds of public policy, but in this 
 case I see no sufficient grounds for departing from the rule." 
 
 * The Frederick, 1 Hagg. Adm. 211, 225.
 
 486 ADMIRALTY PRACTICE. [BOOK III. 
 
 admiralty and rejected, the court will afterwards, for good cause, 
 reduce the amount, and decree a less sum to the libellant.^ 
 
 In a case where a part-owner of the salving vessel had an inter- 
 est in the vessel salved, and he was, therefore, not joined as libel- 
 lant, the court held, that in considering the sufficiency of the 
 tender made by the defendants, the amount which the owner in 
 both vessels would be entitled to as salvor was to be regarded, 
 and that, if the tender were large enough to pay the other salvors, 
 it would be sufficient.^ 
 
 The practice in the English admiralty is, when money is paid 
 into court as a tender, not to pay it out until the conclusion of the 
 cause. ^ 
 
 ^ The General Palmer, 2 Hagg. Adm. 176, 180. Salvors who refused a tender 
 were in one ease obliged to pay costs. The Albion, 2 Hagg. Adm. 180, note, 
 » The Caroline, Lush. Adm. 334. 
 » The Annie Childs, Lush. Adm. 509.
 
 CH. XVI.] DECREES IN ADMIRALTY. 487 
 
 CHAPTER XVI. 
 
 OF THE DECREES IN ADMIRALTY. 
 
 The decrees in admiralty are moulded by the court to meet the 
 exigencies of each case. They are sometimes in writing, and 
 after such delay as the court deem proper ; sometimes spoken by 
 the court, with or without delay, and reduced to writing by the 
 clerk. And if, after the case is heard, the court incline to the opin- 
 ion that either party has not yet made out his full case, or full 
 defence, but may do so if delay and further opportunity for proof 
 and a rehearing are granted, the court will make such order, 
 instead of a decree on the merits. And even after a decree is 
 made, we should be inclined to hold that the court have the power 
 of varying the same for the purpose of correcting any mistake 
 or oversight, although such a power would be used cautiously and 
 perhaps reluctantly .^ This subject is interesting, and has been 
 much considered by the courts ; and we give the authorities at 
 some length in our note.^ It is to be noticed, however, that this 
 
 ^ In The Palmyra, 2 Wheat. 10, a case was dismissed in the Supreme Court on 
 the ground that there had been no final decree in the circuit court. At the next 
 term it appearing that a final decree had actually been made, the court ordered 
 the cause to be reinstated. So in Alviso v. United States, 6 Wallace, 457, where 
 a cause dismissed at one term for the want of citation was reinstated at the 
 next term, on its being shown that a citation had been signed, served, and filed, 
 and that the mistake was owing to a loss of some of the records in the clerk's 
 ofiice by fire. 
 
 " The question was elaborately discussed in the case of The Monarch, 1 W. 
 Rob. 21. The suit was a cause of collision before Sir /. Nicholl, and he decreed 
 that both parties were equally in fault, and condemned the owners of one of the 
 ships in a moiety of the amount of such damage, and of the costs incurred on 
 behalf of the other party, and referred the case to the registrar and merchants to 
 determine the amount of the damage, etc. It will be noticed that this was an 
 interlocutory, and not a final decree. Sir J. Nicholl afterwards died, and an 
 application was made to Dr. Lushwgton, then judge of the court, to vary the 
 decree in question as regarded the costs, on the ground that it was inequitable, and 
 that the late judge could not have intended to burden one side with three fourths 
 of the expenses. Affidavits were also offered to show that the registrar had not
 
 488 ADMIRALTY PRACTICE. [BOOK III. 
 
 subject is not touched upon by the new Admiralty Rules of the Su- 
 
 taken down the decree ai'ight,biit Dr. Luslungton refused to receive the affidavits, 
 especially as the registrar stated that he subsequently took the opinion of the late 
 judge as to the accuracy of the decree in question. The House of Lords had pre- 
 viously decided that where both vessels Avere in fault, each should bear its own 
 costs, and Dr. Lushingion referred to the power of the court of chancery to alter, 
 vary, and amend a decree before its enrolment, and stated that he was at a loss to 
 conceive upon what grounds a court of admiralty in its equitable jurisdiction was 
 to be precluded from a similar discretionary authority, and said : "In the exercise 
 of this authority I should, I trust, use the greatest caution, and the limit which I 
 would propose to myself in future cases is this, merely to make such an alteration 
 of an error arising from defect of knowledge or information upon a particular 
 point, as the justice of the case requires; at the same time let it be understood, 
 that it must be an error instantly noticed, and brought to the attention of the court 
 with the utmost possible diligence." With respect to the case before the court, 
 the learned judge stated that he should vary the decree to the extent of making it 
 accord with the judgment of the House of Lords. 
 
 In The Glenburn, Brow. & L. Adm. 62, the defendant gave his consent to a 
 decree of the court pronouncing for the validity of a bottomry bond. Soon after 
 a decision was given in another case, and the defendant asked that the decree 
 mi"-ht be set aside on the ground that the facts in the ease on the authority of the 
 decision constituted a defence. The motion was overruled. 
 
 In The Martha, Blatchf. & H. Adm. 151, a libel for wages was prematurely 
 filed. The defendant pleaded a dilatory plea, and joined with it a defence on the 
 merits. After a full hearing, the court ordered the vessel to be restored without 
 costs, on the ground that the defence on the merits was not sustained, and the 
 libellant foiled on account of having brought the suit too soon. A decree to this 
 effect was entered, and at the next term the counsel for the claimant applied to 
 the court for leave to reargue the question of costs, and a manuscript decision of 
 the circuit court was produced overruling the doctrine of the court on the merits 
 of the case, so that the claimant should have been entitled to a judgment on the 
 merits. And, after hearing counsel on both sides, the court decreed that costs 
 should be awarded. The question then arose whether the surety for costs was 
 liable or only the libellant. It was contended that the court had no right to 
 reverse the first decree, subsequent to the term at which the decree was ren- 
 dered, and Judge Betls so held, and pronounced the last decree a nullity, and 
 the rule was said to be that a rehearing could not be granted except with the 
 free consent of all the parties to be affected by it. 
 
 In the case of The Steamboat New England, 3 Sumner, 495, a decree for sal- 
 va"-e was rendered, but it was discovered after the final adjournment of the court, 
 that by a mistake of the time, nature, and operation of the decree, the benefit in- 
 tended by it to the salvors was wholly defeated, and they were burdened with 
 expenses beyond the salvage awarded. The mistake was discovered the morning 
 after the final adjournment, and an application was made to the district judge to 
 allow an appeal. The minutes only of the decree had been stated while the court 
 was in session, and the decree was not drawn out in form until the morning after
 
 CH. XVI.] DECREES IN ADMIRALTY. 489 
 
 preme Court, except so far as the Tweiitj-Ninth and Fortieth Rules 
 provide for the case of a default for not answering the libel.^ 
 
 the final adjournment. The judge of the district court refused to allow an appeal, 
 but application for leave to file one was made by all the salvors except one, who 
 filed a petition in behalf of himself and the other salvors in the nature of a libel 
 for a rehearing, or of a libel of review, in the district court. This petition was 
 dismissed by the district court, for want of jurisdiction, and an appeal taken. Mr. 
 Justice Story held that the decree pronounced by the district judge was an inter- 
 locutory, and not a final decree, and that the district court had the power to vary 
 and amend it. The general power of the court to alter its decrees was considered 
 at length, and the conclusions of the learned judge were that a court of admiralty 
 has the power to rehear a cause after a decree has been pronounced, pending the 
 term, and before the proceedings have been finally enrolled or drawn up and en- 
 tered on the record, if there was a manifest mistake, going substantially to the 
 merits even with some slight ingredients of negligence on that side, and without 
 any circumstances of fraud on the other. Great doubt was expressed whether a 
 rehearing could be granted after a final decree was made, but it was thought that 
 a libel in the nature of a bill of review in equity would lie afier a final decree, un- 
 der similar circumstances as in equity, and the learned judge said : " But upon the 
 most careful reflection, which I have been able to bestow upon it, the result to which 
 I have brought my mind is, that if the district court has a right to entertain a libel 
 of review in any case, it must be limited to very special cases, and either where 
 no appeal by law lies, because the matter is less in value than is required by law 
 to justify an appeal, or the proper time for any appeal is passed, and the decree 
 remains unexecuted; — or wliere there is clear error in matter at law; or, if not, 
 where the decree has been obtained by fraud ; or where new facts, changing the 
 entire merits, have been discovered since the decree was passed, and there has 
 been not only the highest good faith (uberrima fides), but also the highest dili- 
 gence and an entire absence of just imputations of negligence ; and finally, where 
 the principles of justice and equity require such an interference to prevent a 
 manifest wrong. Further than this I am not prepared to go ; and I may say, that 
 with my present impressions I should go thus far with some hesitation, and pause 
 at every step. 
 
 In Janvrin v. Smith, 1 Sprague, 13, the power of granting a review by a court 
 of admiralty was held not to be limited to the term at which the original decree 
 was passed. 
 
 In The Enterprise, 2 Curtis, C. C. 317, it was said to be a very grave question, 
 whether the district court had the power to entertain a libel for a review. It was 
 held that the appellee, in whose favor both the original decree and the decree 
 in review were made, could not raise the question in the circuit court. In North- 
 western Iron Co. V. Hopkins, U. S. C. C. Illinois, 14 Am. Law Reg. 44, it was held 
 that a libel for review, filed after the term has passed at which the decree com- 
 plained of was rendered, and after the decree had been executed, would be enter- 
 tained by a court of admiralty, when actual fraud was charged, and the libellant 
 was without fault, and would be otherwise without remedy. 
 
 1 See ante, p. 400, 401.
 
 « 
 
 490 ADMIRALTY PRACTICE. [BOOK III. 
 
 Ill New York, rules have been passed giving the court power to 
 grant a rehearing if application is made at the term when tlie 
 decree is pronounced, or there is a stay of proceeding by order 
 of the judge. It is also provided that no libel of review will be 
 entertained in causes subject to appeal, nor unless it is filed before 
 the enrolment of the decree, or return of final process.^ And, 
 even after any decree, any person having an interest in the pro- 
 ceeds, may intervene for them by petition praying for a delivery 
 thereof to him for reasons stated.^ If separate interests and claims 
 are joined in one libel, to which there is but one answer, the court 
 may, nevertheless, make separate decrees for each separate interest, 
 and should do so whenever this may aifect the question of costs or 
 appeal. 
 
 In causes of contract, interest is generally allowed from the 
 time of a demand made, and if no special demand is proved, from 
 the time of the commencement of the suit.^ 
 
 Wliere a libel is filed for damage to the cargo, and a cross libel 
 for freight, and the court find that the damage exceeds the 
 freight, the decree should not be for the amount of the damage 
 less the freight, but each libellant should have a decree for the 
 amount due him.* 
 
 The decrees may be final, or interlocutory, and they may be in- 
 terposed at any stage of the proceedings to effect any purpose 
 which the justice of the case requires. 
 
 If the action be in rem and the property in the custody of the 
 court, if the libellant prevails, there is a decree of condemnation 
 and sale, and the terms and mode of the sale and satisfaction 
 of the libellant's claim are usually specified in the decree. If the 
 libellant in rem has shown a clear legal right to a condemnation 
 and sale, it is said that the court have no discretionary power to 
 refuse or delay a sale.^ And generally, wherever any specific 
 relief is prayed for, although there be connected with it a prayer 
 
 * In The Wni. Hutt, Lush. Adtn. 25, where an interlocutory order was made, 
 and afterwards a final decree, which was appealed from, but no notice taken of the 
 interlocutory order ; it was held that the court making the order, on the case being 
 remitted to it, could not rescind the order. 
 
 « See anie, p. 231-235. 
 
 ' Gammell c. Skinner, 2 Gallis. 45. 
 
 * The Water Witch, I Black, 494. 
 
 * Davis V. A New Brig, Gilpin, 473.
 
 CH. XVI.] DECREES IN ADMIRALTY. 491 
 
 for general relief, the court have no power to grant a relief 
 which is either inconsistent with or different from that which is 
 prayed.i 
 
 In a suit in personam^ the defendants not being within the dis- 
 trict, but their property attached and no appearance entered, the 
 decree will not be against the defendants personally, but only 
 against the property attached. If that property consists of specific 
 articles, the court will order a sale ; but such sale conveys only 
 the rights of the debtor, and does not divest liens or rights of third 
 parties. And, if the property attached be money in the registry, 
 the decree will be satisfied therefrom .^ 
 
 So, the decree may be for further proofs, or for delivery or 
 restoration of the property to the owner ; in which case a warrant 
 of restoration follows. If the respondent has taken the property 
 on stipulation, sometimes this warrant is made, and sometimes the 
 decree only ; but if the libellant prevails, the respondent may sur- 
 render the property to the court ; if, however, he does not, execu- 
 tion will issue on the stipulation at once, except in revenue cases, 
 in which certain delay is required by acts of Congress. 
 
 If in a libel of information, the respondent prevails, the courts 
 give to the prosecuting or seizing officer a certificate of probable 
 cause, if in their judgment he had such cause for the seizure, and 
 this protects him from prosecution for making the same.^ The 
 final decree of the courts of the United States, in a case of forfeit- 
 ure regularly before them, is conclusive.* 
 
 Decrees in admiralty should be secundum allegata, as well as 
 secundum prohata, and the libellant is not permitted to set forth 
 one thing in his libel and prove another.^ The reason of the rule 
 is obvious. It is, that the respondent may know the exact case he 
 
 1 Wilson V. Graham, 4 Wash. C. C. 53. 
 
 * Boyd V. Urquhart, 1 Sprague, 423. 
 
 * Act of 1799, c. 22, § 89, 1 U. S. Stats, at Large, 696 ; Act of 1807, c. 19, 2 
 U. S. Stats, at Large, 422. 
 
 * Gelston v. Hoyt, 3 Wheat. 246. 
 
 * McKinlay v. Morrlsh, 21 How. 343 ; The Hoppet v. The United States, 7 
 Cranch, 389. See also Jenks v. Lewis, Ware, 51; The Sch. Boston, 1 Sumner, 
 328, 331 ; Ward v. The Brig Fashion, 1 Newb. Adm. 41, 6 McLean, C. C. 195 ; 
 The North American, Swabey, Adm. 358; The Ann, Lush. Adm. 55; The De- 
 spatch, Lush. Adm. 98; The Haswell, Brow. & L. Adm. 247 ; The Amalia, id. 
 311.
 
 492 ADMIRALTY PRACTICE. [BOOK III. 
 
 has to meet, and prepare himself accordingly. But it has been 
 held, that if the allegations of the libellant in a cause of collision, 
 imputing fault to the vessel proceeded against, are not sustained 
 by the evidence, yet, that if the facts admitted by the respondent, 
 or set forth in his answer, show that he was in fault, the libellant 
 may recover. - 
 
 We are, however, clearly of the opinion, that not only on prin- 
 
 * The Clement, 2 Curtis, C. C. 363. The libel allejjed that both vessels were 
 on the starboard tack, the pilot-boat (the libellant) close to the wind, and to the 
 leeward of the brig (the respondent), when the brig suddenly changed her course, 
 and kept off, and struck the pilot-boat, which was sunk, etc. The answer denied 
 that the brig kept off and struck the pilot-boat, but stated that she kept her course 
 until she luffed to lessen the force of the collision. The district court was of the 
 opinion, that the allegations of the libel were not sustained by the evidence, but 
 that it appeared that the case was one of two vessels sailing in converging courses 
 on the same tack, the pilot-boat close-hauled, and the brig with the wind two 
 points free ; that the rule of navigation required the brig to avoid the pilot-boat, 
 unless there were special circumstances to render the rule inapplicable, and a 
 decree was entered for the libellant. In the circuit court it was contended, that 
 the decree should be reversed, because it was rested upon facts not alleged in the 
 libel, but Mr. Justice Curds sustained it for the reasons set forth in the text. 
 Upon appeal to the Supreme Court, that court was equally divided, but as no 
 opinion was given, we cannot state on what point the judges differed. Reference 
 is made by the learned judge to that class of collision cases, where the decree is 
 in conformity with the separate allegations of neither of the parties ; namely, cases 
 of mutual fault, where the libellant states that his vessel exercised due care, and 
 imputes fault to the vessel proceeded against, while the claimant denies the fault 
 imputed to him, and alleges that the vessel of the libellant is in fault, and the 
 court finds part of the allegations in each pleading to be true, and divides the 
 loss. But in the present case, no part of the libel imputing fault was sustained 
 by the pleading, and we are unable to see the analogy between the two cases. 
 Some stress, moreover, appears to be laid on the remark of Dr. Lushington in The 
 Lady Anne, 1 Eng. L. & Eq. 670, 674; namely, "It is quite evident in this case 
 that the point on which it has hinged has never been touched upon at all in the 
 pleadings." It seems, however, to have escaped the notice of the learned judge 
 that the Pi'ivy Council for this very reason remitted the case to the admiralty 
 court, with the directions that it should be further written to. 
 
 In Dupont de Nemours v. Vance, 19 How. 102, an action was brought on a 
 contract of affreightment against the vessel for non-delivery of goods. The 
 answer set up a necessary jettison of that part of the cargo which was not deliv- 
 ered. The court found that this defence was sustained by the evidence, but 
 allowed the libellant to recover the general average due from the vessel, although 
 not claimed in the libel. Mr. Justice Curtis delivered the opinion of the court, 
 which proceeded mainly on the grounds stated in the case of The Clement, supra. 
 See also Burton v. Salter, U. S. C. C. Mass., 21 Law Hep. 148.
 
 CH. XVI.] DECREES IN ADMIRALTY. 493 
 
 ciple, but according to the latest authority, the libellant can only 
 recover according to the allegations in his libel, and that evidence 
 is not admissible on points set up in the answer, which are not 
 responsive to the libel, or which do not relate to some matter in 
 discharge or avoidance of the case set up by the libel.^ 
 
 If, in a cause of collision, the defendant sets up, in his answer, 
 a particular thing as the cause of the collision, and fiiils to prove 
 it, he is not, therefore, liable, for the libellant must make out his 
 case, and must prove the defendant to be in fault.^ 
 
 Although the language of a decree is such that, strictly coji- 
 strued, it could not be sustained on appeal, yet if it is obvious, 
 from the subsequent parts of the record, that no error has been 
 committed, the decree will not be reversed. -^ 
 
 When there is a cross action, which is heard by consent at the 
 same time with the original action, the court may decide the 
 cross action on the facts pleaded and proved in the original ac- 
 tion .^ 
 
 The circuit court, as we have seen, does not remit the case to 
 the district court, but executes its own decrees.^ The Supreme 
 Court, however, remits the case to the circuit court, and by a 
 mandate directs what disposition shall be made of the case. 
 
 ' McKinlay v. Morrisli, 21 How. 343. So, in equity, it has been held that no 
 relief can be given, unless the complainant, by his allegations and proof, shows that 
 he is entitled to relief, although the answer shows that he is. Knox v. Smith, 4 
 How. 298. 
 
 " The East Lothian, Lush. Adm. 24 L 
 
 ^ Sturgis V. Clough, 1 Wallace, 2G9. 
 
 * The Vortigern, Swabey, Adm. 518. 
 
 ^ Montgomery v. Anderson, 21 How. 386. Li The Roarer, 1 Blatchf. C. C. 1, 
 the decree had been in favor of the libellants in the district court. Only one of 
 the respondents appealed to the circuit court, and this appeal was afterwards dis- 
 missed as to some of the libellants, the sums severally awarded to them not 
 being sufficient to justify the ajapeal. On the hearing, the decree of the district 
 court was reversed, as between the appellant and those of the libellants who 
 remained as appellees. The decree contained no provision as to so much of the 
 decree below, as was not appealed from, and on motion being made to affirm it so 
 far as it was not appealed from, Mr. Justice Nelson held, that the M'hole decree 
 came up by the appeal, but as to that part not appealed from, it was not open to 
 controversy, and the motion was denied.
 
 494 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER XVII. 
 
 FINAL PROCESS. 
 
 The old Twenty-First Admiralty Rule of the Supreme Court 
 provided that " In all cases where the decree is for the payment of 
 money, the libellant may, at his election, have an attachment to 
 compel the defendant to perform the decree, or a writ of execution 
 in the nature of a capias and of a fieri facias, commanding the 
 marshal or his deputy to levy the amount thereof of the goods and 
 chattels of the defendant, and for want thereof to arrest his body 
 to answer the exigency of the execution. In all other cases the 
 decree may be enforced by an attachment to compel the defendant 
 to perform the decree ; and upon such attachment the defendant 
 may be arrested and committed to prison until he performs the 
 decree, or is otherwise discharged by law, or by the order of the 
 court." 
 
 In 1862, this rule was abolished, and the following rule sub- 
 stituted for it : " In all cases of a final decree for the payment of 
 money, the libellant shall have a writ of execution in the nature of 
 a fieri facias, commanding the marshal or his deputy to levy and 
 collect the amount thereof out of the goods and chattels, lands and 
 tenements, or other real estate of the defendant or stipulators." ^ 
 
 This rule seems more particularly applicable to suits in per- 
 sonam, for in suits in rem the process is a decree of sale, directing 
 the marshal to sell the property and to pay the proceeds into 
 court. 
 
 We have already considered the liability of stipulators,^ and 
 also whether a defendant or stipulator can be arrested if imprison- 
 ment for debt is abolished or modified in the State by the law of 
 the State,^ and only remark here that final process by arrest in 
 any case seems to be taken away by the abolishment of the Twenty- 
 First Rule and the passage of the new rule. 
 
 1 1 Black, 6. 
 
 - See anle^ p. 414, 415. 
 
 » See ante, p. 388-390.
 
 CH. XVII.] FINAL PROCESS. 495 
 
 How far this rule is modified bj the act of 1867, may perhaps 
 be questionable.^ 
 
 It was at one time doubted whether an execution could run 
 against the land of the defendant or stipulator,^ but this is now 
 provided for by the rule above cited. It is provided by statute 
 that judgment or decrees rendered after the fourth day of July, 
 1840, in the circuit and district courts of the United States within 
 any State, " shall cease to be liens on real estate or chattels real in 
 the same manner and at like periods as judgments and decrees of 
 the courts of such State now cease by law to be liens thereon." ^ 
 
 Executions obtained for the use of the United States in any of 
 the courts of the United States, in one State, may run and be 
 executed in any other State, or in any of the Territories of the 
 United States, but shall be issued from and made returnable to 
 the court wliere the judgment was obtained.^ And all writs of 
 execution, upon any judgment or decree, obtained in any of the 
 district or circuit courts of the United States, in any one State, 
 which is or may be divided into two judicial districts may run and 
 be executed in any part of such State, but shall be issued from, 
 and be made returnable to the court where the judgment was 
 obtained.^ 
 
 Interest is allowed on all judgments in civil cases recovered in 
 the circuit or district courts, in all cases where, by the law of the 
 State in which the court is held, interest may be levied under pro- 
 cess of execution on judgments recovered in the courts of such 
 State, to be calculated from the date of the judgment, and at 
 such rate per annum as is allowed by law on judgments recovered 
 in the courts of such State. ^ 
 
 It seems hardly necessary to state that if the property sued in 
 rem is not sufficient to pay the amount due, other property of the 
 owner cannot be attached. ^ 
 
 ^ See ante, p. 389. 
 ' See ante, p. 414. 
 » Act of 1840, c. 43, § 4, 5 U. S. Stats, at Large, 393. 
 
 * Act of 1797, c. 20, § 6, 1 U. S. Stats, at Large, 515. 
 
 * Act of 1826, c. 124, 4 U. S. Stats, at Large, 184. 
 
 * Act of 1842, c. 188, § 8, 5 U. S. Stats, at Large, 518. 
 ' The Victor, Lush. Adm. 72.
 
 496 ADMIRALTY PRACTICE. [BOOK III. 
 
 CHAPTER XVIII. 
 
 OF APPEALS. 
 
 SECTION I. 
 OF APPEALS FROM THE DISTRICT TO THE CIRCUIT COURT. 
 
 The act of 1789 ^ provided, "That from final decrees in a dis- 
 trict court in causes of admiralty and maritime jurisdiction, where 
 the matter in dispute exceeds the sum or value of three hundred 
 dollars, exclusive of costs, an appeal shall be allowed to the next 
 circuit court to be held in such district." 
 
 The second section of the act of 1803 ^ provides, " That from all 
 final judgments or decrees, in any of the district courts of the 
 United States, an appeal, where the matter in dispute, exclusive 
 of costs, sliall exceed the sum or value of fifty dollars, shall be 
 allowed to the circuit court next to be holden in tlie district where 
 such final judgment or judgments, decree or decrees may be ren- 
 dered ; and the circuit court or courts are hereby authorized and 
 required to receive, hear, and determine such appeal." 
 
 This section then provides for an appeal from the circuit court 
 to the Supreme, and after using the word "appeal" in the singular 
 several time, provides " that such appeals shall be subject to the 
 same rules, regulations, and restrictions as are prescribed in law in 
 case of writs of error ; and that the said Supreme Coui-t shall be 
 and hereby is authorized and required to receive, hear, and deter- 
 mine such appeals." 
 
 The question is whether this clause applies to appeals from the 
 district court to the circuit, and whether such appeals are subject 
 to the rules prescribed for writs of error. If it were not for the 
 last part of the preceding clause, it might well be argued that the 
 
 » Act of 1789, c. 20, § 21, 1 U. S. Stats, at Large, 83. 
 * Act of 1803, c. 40, § 2, 2 U. S. Stats, at Large, 244.
 
 CH. XVIII.] APPEALS. 497 
 
 use of the word " appeal " in the singular, in speaking of an appeal 
 from the district court to the circuit, and from the circuit to the 
 Supreme Court, and then the use of the word " appeals " in the 
 plural, showed conclusively that all appeals were to be subject to 
 the rules prescribed for writs of error. The last part of the clause 
 gives the Supreme Court jurisdiction over " sucli appeals." This 
 cannot mean appeals from the district court to the circuit, but 
 must be limited to appeals from the circuit to tlie Supreme Court, 
 and hence it follows that the provision in regard to the rules pre- 
 scribed for writs of error applies only to appeals from the circuit 
 to the Supreme Court. 
 
 It is also to be noticed in confirmation of this view that under 
 the act of 1789, only civil cases were taken from the district court 
 to the circuit, by writs of error, while admiralty cases were taken 
 from one court to the other by appeal. 
 
 The only effect then of the act of 1803 on the act of 1789, in 
 regard to appeals to the circuit court is to reduce the sum or 
 matter in controversy from three hundred to fifty dollars. ^ 
 
 In accordance with this view, it has been held that the appeal 
 must be made to the next circuit court,^ and tliat an appeal may 
 properly be entered at the term of the circuit court which is begun 
 next after the entry of the decree in the district court, although 
 the term of the district court during which the decree was entered 
 had not ended when the term of the circuit court began. -^ 
 
 This appeal must, unless there is a special rule of the court to 
 the contrary, be taken in open court, and before the adjournment 
 of the court without day.* But a party is not bound to appeal 
 till the decree is regularly drawn up and entered, and if it is not 
 drawn up till vacation, tlie court cannot have it entered as of the 
 
 ^ There is a dictum to this effect in United States v. Nourse, 6 Pet. 470, 496. 
 On the authority of this dictum Mr. Justice Curtis, in United States v. Certain 
 Hogsheads of Molasses, 1 Curtis, C. C. 276, said a question respecting an appeal 
 from the district to the circuit court must depend on the construction of the 
 21st section of the Judiciary Act of 1789. 
 
 ^ United States v. Brig Glamorgan, 2 Curtis, C. C. 236. 
 
 ^ United States v. Certain Hogsheads of Molasses, 1 Curtis, C. C. 276. 
 
 * Norton v. Rich, 3 Mason, 443. The Forty-Fifth Admiralty Rule provides that 
 " all appeals from the district to the circuit court must be made while the court 
 is sitting, or within such other period as shall be designated by the district court 
 by its general rules or by an order specially made in the particular case." 
 
 VOL. II. 32
 
 498 ADMIRALTY PRACTICE. [BOOK III. 
 
 preceding term, but should continue it till the next term, as un- 
 finished business. 1 
 
 The Forty-Fifth Admiralty Rule allows, as we have seen, the 
 district courts to provide rules for the regulation of the time of 
 appeals, and also allows the court to make a special order in a 
 particular case. By an old rule of the district court in Massa- 
 chusetts, appeals might be claimed at any time within ten days 
 after the decree was entered. The practice under this rule in the 
 district court was to include Sundays within the ten days ; but in 
 one case, where the appeal was refused because not claimed within 
 ten days including Sundays, Mr. Justice Woodbury, in the circuit 
 court, held that it should have b6en allowed, and, on appeal, the 
 Supreme Court were equally divided.^ To settle the matter, the 
 district court made a new rule in accordance with their former 
 practice, including Sundays within the ten days. 
 
 Mr. Conkling is, however, of the opinion that the act of 1803, 
 prescribing the rules applicable to writs of error, applies to appeals 
 from the district to the circuit court ; ^ and Mr. Justice Nelson, 
 misled by Mr. Conkling, fell into the same mistake,"* but after- 
 wards retraced his steps.^ 
 
 If the appellant deserts his appeal, the circuit court may remit 
 the case to the district court, or may retain it and affirm the 
 decree of the district court.^ 
 
 If an appeal is wrongfully disallowed in the district court, the 
 
 • Steamboat New England, 3 Sumner, 495. 
 
 ° Keed v. Peck, United States Sup. Ct. Dec. T. 1852. This case has never been 
 reported. 
 
 ' 2 Conkling, Adm. 2d ed. 397. 
 
 • Hayford v. Griffith, 3 Blatchf. C. C. 34. 
 
 ^ In The Ellen, 4 Blatchf. C. C. 107, it was held that no citation was required 
 by these statutes in case of an appeal from the district to the circuit court ; and 
 that a written notice by the proctor of the appellant to the proctor of the adverse 
 party was all the notice that was required by the rules of the court. A^elnon, J., 
 said: "The 21st section of the Judiciary Act of 1789, provided for appeals in 
 admiralty from the district court, but made no provision for a citation. This sec- 
 tion was amended by the 2d section of the act of March 3, 1803, which reduced 
 the amount necessary to the right of appeal, but made no change as to the mode 
 of practice in bringing it. On a careful examination of that act, I am satisfied 
 this is the true construction of the 2d section, so far as it applies to an appeal 
 from the decree of the district court." 
 
 • Privateer Montgomery, v. Schooner Betsey, 1 Gallis. 416.
 
 CH. xviil] appeals. 499 
 
 appellant may file a transcript of the record in the circuit court, 
 and move the court for leave to enter the appeal,^ or, if necessary 
 in order to prevent the district court from carrying its decree into 
 effect, he may apply to the circuit court for a mandamus, com- 
 manding the district court to allow the appeal. The writ of 
 mandamus in such a case should be directed to the judge of the 
 district court, and not to the clerk thereof.^ 
 
 The duty of the clerk of the district court, and the manner of 
 making up the record in case of an appeal, are set forth in the 
 Fifty-Third Admiralty Rule, which we give in the Appendix. 
 
 SECTION II. 
 OF APPEALS FROM THE CIRCUIT TO THE SUPREME COURT. 
 
 The act of 1803,^ which changed the mode of carrying up a suit 
 in admiralty from the circuit to the Supreme Court, from a writ 
 of error to an appeal,* provides that " such appeals shall be subject 
 to the same rules, regulations, and restrictions as are prescribed in 
 law in case of writs of error." This last clause has been held by 
 the Supreme Court,^ to have reference to the rules, etc., appli- 
 cable to writs of error by the Judiciary Act.^ 
 
 This act provides, generally, that a cause may be heard on writ 
 of error in the Supreme Court, provided the party files an authen- 
 ticated transcript of the record, and gives the adverse party thirty 
 days' notice by a citation signed by a judge of the circuit court or 
 justice of the Supreme Court. Writs of error must be brought 
 within five years after the judgment complained of is rendered or 
 passed, unless the person entitled to such writ is an infant, feme 
 
 1 The Enterprise, 2 Curtis, C. C. 317. 
 
 " The Steamboat New England, 3 Sumner, 495. See Smith v. Jackson, 1 
 Paine, C. C 453. 
 
 » Act of 1803, c. 40, § 2, 2 U. S. Stats, at Large, 244. 
 
 * The San Pedro, 2 Wheat, 132. The various questions growing out of the 
 partial repeal of the judiciary act by the act of 1803, are discussed in this case at 
 length ; and the court held that an admiralty case could not, since the passage of 
 the act of 1803, be taken up by a writ of error. 
 
 " The San Pedro, 2 Wheat. 132. 
 
 » Act of 178D, c. 20, §§ 22, 23, 1 U. S. Stats, at Large, 84.
 
 500 ADMIRALTY PRACTICE. [BOOK III. 
 
 covert, non compos mentis, or imprisoned, in all which cases five 
 years are allowed exclusive of such disability. But in order to 
 make the writ of error operate as a supersedeas, a copy must be 
 lodged for the adverse party in the clerk's office,^ where the record 
 remains, within ten days,^ Sundays exclusive, after the judgment 
 is rendered, or the decree passed, which is complained of. And in 
 any case where a writ of error may operate as a supersedeas, no 
 execution shall issue during the ten days. 
 
 The judge signing the citation is required to take good and 
 sufficient security that the appellant shall prosecute liis appeal to 
 effect, and answer all damages and costs if he fail to make his plea 
 good. -3 As a general rule, to entitle the appeal to operate as a 
 supersedeas the bond must be filed within the ten days.^ The 
 bond should mention the parties correctly.^ 
 
 The word damages does not mean damages for the delay, but 
 
 * See Wood v. Lide, 4 Cranch, 180 ; Davidson v. Lanier, 4 Wallace, 454. 
 
 * City of Washington v. Dennison, 6 Wallace, 495. In Thompson v. Voss, 1 
 Cranch, C. C. 108, it was held that a writ of error was not a supersedeas unless 
 it was served within ten days after the rendition of the judgment, although the 
 parties had agreed to a stay of execution for two months, and the writ of error 
 had been served before the expiration of that time. It would seem that an appeal 
 must date from the time when it is actually made, and that an inferior court can- 
 not give it any additional effect by allowing it to be entered nunc pro tunc. Gar- 
 rison V. Cass County, 5 Wallace, 823 ; The Roanoke, 3 Blatchf. C. C. 390. And 
 the same rule applies to the date of a decree. Rubber Co. v. Goodyear, 6 Wal- 
 lace, 153. 
 
 ^ Act of 1789, c. 20, § 22, 1 U. S. Stats, at Large, 85. See post, 508, n. 4. 
 
 * Adams v. Law, 16 How. 144 ; Hudgins v. Kemp, 18 How. 530. In Ex parte 
 Milwaukee R. 5 Wallace, 188, the bond was tendered within the ten days, but 
 the judge refused to approve of it on the ground that all the sureties were non- 
 residents of the district. The appeal to the Supreme Court was allowed, but not 
 as a supersedeas. Application was then made to the Supreme Court for a man- 
 damus to compel the judge to approve the bond and allow a supersedeas, or for 
 such other relief as the court could give. The court held, that although they did 
 not concur in the opinion of the judge below, that the fact of the non-residence 
 of the sureties was a sufficient reason for rejecting the bond which was in other 
 respects unobjectionable, they were not inclined to interfere by mandamus with 
 the discretion of the judge in approving or rejecting a bond offered for his ap- 
 proval ; but that as the case was properly before them they could issue a writ of 
 supersedeas. It was accordingly ordered that on the filing of a bond within 
 thirty days, to be approved by the clerk of the Supreme Court, a writ of super- 
 sedeas should issue. 
 
 ° Kail V. Wetmore, G Wallace, 451.
 
 CH. XVIII.] APPEALS. 501 
 
 the penalty must be sufficient to cover the whole amount of the 
 judgment.^ If a writ of error is not to operate as a siijjersedeas, 
 the bond " shall be only to such an amount as, in the opinion of 
 the justice or judge taking the same, shall be sufficient to answer 
 all such costs as, upon an affirmance of the judgment or decree, 
 may be adjudged or decreed to the respondent in error.^" 
 
 The Thirty-Second Rule of the Supreme Court,^ provides that 
 supersedeas bonds in the circuit court must be taken, with good 
 and sufficient security that the appellant shall prosecute his appeal 
 to effect, and answer all damages and costs if he fail to make his 
 appeal good. Such indemnity where the judgment or decree is 
 for the recovery of money not otherwise secured, must be for the 
 whole amount of the judgment or decree, including "just damages 
 for delay," and costs and interest on the appeal; but where the 
 property is hi the custody of the marshal, under admiralty process, 
 as in case of capture or seizure ; or where the proceeds thereof, or 
 a bond for the value thereof, is in the custody or control of the 
 court, indemnity in all such cases is only required in an amount 
 sufficient to secure the sum recovered for the use or detention 
 of the property, and the costs of the suit, and "just damages for 
 delay," and costs and interest on the appeal. 
 
 The question of the sufficiency of an appeal bond is to be deter- 
 mined in the first instance by the judge who signs the citation, but 
 after the allowance of the appeal the Supreme Court can take cog- 
 nizance of it.* 
 
 All the appellants should join in the appeal, though they need 
 not join in the bond.^ 
 
 The law presumes that the judge granting the appeal has at- 
 tended to his duty, and it need not, therefore, appear affirmatively 
 that the bond was given.*^ In one case, where the transcript 
 
 ^ Stafford v. Union Bank of La. 16 How. 135; Catlett v. Brodie, 9 Wheat. 
 553. 
 
 - Act of 1794, c. 3. 1 U. S. Stats, at Large, 404. 
 ^ 6 Wallace, iv. 
 
 * Rubber Company v. Goodyear. 6 Wallace, 153. Chase, C. J., said: "It is, 
 therefore, matter of discretion with this court to increase or diminish the amount 
 of the bond, and to require additional sureties, or otherwise, as justice may 
 require." 
 
 * Brockett v. Brockett, 2 How. 238. 
 
 * Martin v. Hunter, 1 Wheat. 304, 361 ; Davidson v. Lanier, 4 Wallace, 454.
 
 502 ADMIRALTY PRACTICE. [BOOK HI. 
 
 showed that no bond was given, the appeal was dismissed.^ But 
 the court will not always dismiss the appeal if no bond is filed, 
 but will generally allow the appellants time within which to file 
 it.^ The bond must be taken and approved in such a case by any 
 judge authorized to allow the appeal.^ 
 
 If the inferior court issues an execution notwithstanding the 
 appeal, the Supreme Court may issue a supersedeas, if the appel- 
 lant was entitled to one in the inferior court.^ But the appeal 
 cannot operate as a supersedeas unless it is properly taken within 
 the ten days. If, therefore, an appeal is taken and a bond filed, 
 and the appeal is afterwards dismissed because of some informality 
 in another respect, and then another appeal is taken and sufficient 
 security offered, the appellant is not entitled to a supersedeas.^ 
 
 If, after the decree is pronounced, the inferior court suspends 
 the operation of it, as by entertaining a petition to open it, the ten 
 days do not begin to run till the decree is finally entered.*^ 
 
 An appeal need not be in writing or taken in court.''' If it is 
 taken in open court, no citation is necessary.^ If not taken in open 
 court, a citation signed by the judge of the circuit court or by a 
 justice of the Supreme Court must be issued,^ citing the adverse 
 party to appear at the Supreme Court on the first day of the next 
 succeeding term ; '^^ and the appeal must be entered at that term.^^ 
 
 1 Boyce v. Grundy, 6 Pet. 777. 
 
 * Anson v. Blue Ridge R. 23 How. 1. See also Davidson v. Lanier, 4 Wal- 
 lace, 454 ; Brobst v. Brobst, 2 id. 96 ; Seymour v. Freer, 5 id. 822. 
 
 * Anson v. Blue Ridge R. 23 How. 1. 
 
 * Stockton V. Bishop, 2 How. 74. 
 ^ Hogan V. Ross. 11 How. 294. 
 
 « Brockett v. Brockett, 2 How. 238. See also Wylie v. Coxe, 14 How. 1. 
 
 ' Hudgins v. Kemp, 18 How. 530, 537. In England the practice was formerly, 
 after a party had appealed, for him to pray " apostles " from the judge, i. e. short 
 letters dismissory, signed by the judge, stating shortly the case and sentence, etc. 
 2 Browne, Civ. & Adm. Law, 438. The word "apostles" is also used in one of 
 the circuit court rules in New York, 1 Blatchf. C. C. 6G0. 
 
 ^ Rully V. Lamar, 2 Cranch, 344 ; Brockett v. Brockett, 2 How. 238. 
 
 ^ City of Washington v. Dennison, 6 Wallace, 495 ; Alviso v. United States, 5 
 Wallace, 824. 
 
 '" Insurance Co. v. Mordecai, 21 How. 195; United States v. Curry, 6 How. 
 106. Agricultural Company v. Pierce County, 6 Wallace, 246. 
 
 " Hamilton v. Moore, 3 Dall. 371 ; Villabolos v. United States, 6 How. 81 ; 
 Steamer Virginia v. West, 19 How. 182; INIesa v. United States, 2 Black, 721 ; 
 Castro V. United States, 3 Wallace, 46 ; Garrison v. Cass Co. 5 id. 823. For a
 
 CH. XVIII.] APPEALS. 603 
 
 To this rule there are, however, certain exceptions, which are 
 thus stated by Mr. Justice Clifford : " Where the appellant, 
 having seasonably procured the allowance of the appeal, is pre- 
 vented from obtaining the transcript by the fraud of the other 
 party, or by the order of the court, or by the contumacy of the 
 clerk, the rule does not apply, provided it appears that the appel- 
 lant was guilty of no laches, or want of diligence in his efforts to 
 prosecute the appeal." ^ 
 
 If the appeal is taken after the commencement of the term of 
 the Supreme Court, the appellant is not bound to file the record 
 until the next term, and until the record is filed, the court cannot 
 order the appeal to be dismissed.^ 
 
 If the writ of error is defective, the Supreme Court of the 
 United States has no power to amend it, or to issue another cita- 
 tion.^ 
 
 The citation must be signed by the judge who allows the appeal 
 and not by the clerk,* and it should name all the parties to the 
 suit,^ and name them correctly,^ and it should be served before 
 the commencement of the term,' and it has been said that if thirty 
 
 case where the writ was destroyed before reaching the Supreme Court, see Mussina 
 V. Cavazos, 6 Wallace, 355. In Insurance Co. v. Mordecai, 21 How. 195, Taney, 
 C. J., after stating that_the writ must be returnable the first day of the term, said : 
 the j^laintifF in error " may, it is true, return the writ with the transcript at any 
 time during the term, unless the case has been docketed and dismissed, when it 
 cannot afterwards be filed without the special order of the court. But this per- 
 mission to return the writ and file the transcript at a subsequent day, is upon the 
 principle that, for certain purposes of convenience or justice, the term is consid- 
 ered as but one period of time, — as one day, and that day the first of the term." 
 
 ^ United States v. Gomez, 3 Wallace, 763. 
 
 ^ Stafford v. Union Bank of Louisiana, 16 How. 135. 
 
 ' Insurance Co. v. Mordecai, 21 How. 195. 
 
 * United States v. Hodge, 3 How. 534 ; Villabolos v. United States, 6 How. 
 81, 90. 
 
 * Smyth V. Strader, 12 How. 327. In Louisiana, it is the practice for the name 
 of the husband to be put in the petition when a suit is brought by the wife. This 
 is done to signify the assent of the husband to the suit, but he is not considered a 
 party to it, and is not responsible for costs. Under these circumstances it has 
 been held that calling in the citation one of the parties A. B. wife of C D., when 
 she was wife of E. F., was not a fatal error. Peale v. Phipps, 8 How. 256. 
 
 « Kail V. Wetmore, 6 Wallace, 451. 
 
 ' Yeaton v. Lenox, 7 Pet. 220; Garrison v. Cass Co. 5 Wallace, 823; City of 
 Washington v. Dennison, 6 Wallace, 495.
 
 504 ADMIRALTY PRACTICE. [BOOK III. 
 
 days will not elapse before the commencement of the term, the re- 
 spondent is not obliged to be ready for the argument before the 
 thirty days have elapsed.^ And in 1803, a rule was passed to this 
 effect, but this rule was omitted in the new rules. ^ At the De- 
 cember Term, 1867, the Supreme Court provided that where final 
 judgment is rendered more than thirty days before the first day of 
 the next term of that court, the writ of error and citation, if taken 
 before, must be returnable on the first day of said term, and be 
 served before that day ; but where the judgment is rendered less 
 than thirty days before the first day, the writ of error and citation 
 may be made returnable on the third Monday of the term, and 
 be served before that day.^ 
 
 The citation should, we presume, be served personally, either 
 on the appellee or his attorney of record, and the latter cannot, 
 after the decision in the court below is given, withdraw his name 
 to avoid service.* If the attorney of record is dead, it is not suffi- 
 cient to serve it on his executor or personal representatives, or on 
 another member of the bar who was a partner of the deceased, the 
 name of the latter not appearing of record.^ And in one case, 
 where a woman married after judgment, it was held that the ser- 
 vice of the citation upon her husband was sufficient.*^ The appel- 
 lee should, if no citation is served upon him, or if one is served in 
 any way irregularly, at the term when the appeal is entered, move 
 that the appeal be dismissed, because if an appearance is entered 
 
 ' Lloyd V. Alexander, 1 Craiieh, 365. See also Wood i'. Lide, 4 Cranch, 180. 
 In Welsh v. Mandeville, 5 Cranch, 321, the court refused to take up a case -with- 
 out the consent of both parties, during the term, the citation not having been 
 served thirty days before the commencement of the term. 
 
 ^ The lOth Kule, passed in 1803, 1 How. xxvi., provided that when the writ 
 of error issued within thirty days before the meeting of the court, the defendant 
 in error could enter his appearance and proceed to trial, otherwise the cause must 
 be continued. The 9th Rule, of 1858, which provides for the manner of dock- 
 eting and dismissing causes, which we give in the Appendix, makes no provision 
 for this case, nor do any of the rules upon which it was founded. The old rules 
 are revised and corrected in 21 How., and renumbered, but they are not ex- 
 pressly repealed, and the rule of 1803 may yet be in force. 
 
 * Rule No. 33, 6 Wallace, vi. 
 
 * United States, u. Curry, 6 How. lOG. 
 ^ Bacon v. Hart, 1 Black, 38. 
 
 * Fairfax v. Fairfax, 5 Cranch, 19.
 
 CH. xviil] appeals. 505 
 
 for him, and no motion is made at that term, the irregularity will 
 be considered as waived.^ 
 
 The issue and service of the citation form no part of the record 
 of the court below, and may be proved aliunde? 
 
 Where the record states the appeal to have been made in open 
 court, no evidence is admissible deJio7-s the record to show the con- 
 trary, but the proper course is, if the record is incorrect or defec- 
 tive, to obtain a correct record on a certiorari.^ 
 
 An appeal may be taken, as we have seen, at any time within 
 five years, after the decree is rendered in the court below, and it 
 has been held in the case of a writ of error that the writ must be 
 filed in the Supreme Court before the expiration of that time, 
 although it is issued from the circuit court in season.^ Whether 
 the same construction would apply to an appeal may perhaps be 
 doubted ; and in one case it was held that an appeal prayed for 
 and allowed within five years was valid, although the security was 
 not given until after that time, the mode of taking the security and 
 of perfecting it being considered to be within the discretion of the 
 court below.° If the suit is dismissed for any irregularity in the 
 manner of taking the appeal, another appeal may be taken at any 
 time within the five years ; ^ but this appeal must be prosecuted at 
 the term of the Supreme Court next succeeding such appeal.'^ 
 
 But if an appeal has been dismissed, the same case cannot be 
 docketed again without another appeal.^ 
 
 ^ McDonough v. Millaudon, 3 How. 693 ; Buckingham v. McLean, 13 How. 
 150. 
 
 * Innerarity v. Byrne, 5 How. 295. See also Hudgins v. Kemp, 18 How. 530, 
 537. 
 
 ' Hudgins v. Kemp, 18 How. 530. To obtain a certiorari for a diminution of 
 the record, a motion must be made in writing, and the facts on which it is founded 
 must, if not admitted by the other party, be verified by affidavit. And all mo- 
 tions for certiorari must be made at the first term of the entry of the cause ; oth- 
 erwise the same will not be granted unless upon special cause shown to the court, 
 satisfactorily accounting for the delay. Rule 14, 21 How. x. 
 
 * Brooks V. Norris, 11 How. 204. 
 
 ' The Dos Hermanos, 10 Wheat. 306. It would seem from this case that the 
 case could not have been entered in the Supreme Court until after the expiration 
 of the five years. And we think it clear that an appeal taken any time within 
 the five years is valid. 
 
 » Yeaton v. Lenox, 8 Pet. 123. 
 
 ' Steamer Virginia v. West, 19 How. 182, per Taney, C. J. 
 
 « Rogers v. Law, 21 How. 526.
 
 506 ADMEALTY PRACTICE. [BOOK ID. 
 
 In the Supreme Court of the United States it has been held 
 that where an appeal is not prosecuted in that court, it will be 
 dismissed upon a certificate being produced from the circuit court 
 that the appeal has been taken and not prosecuted.^ This subject 
 is now provided for by the Ninth Rule of court passed at the De- 
 cember term, 185S, which we give in the Appendix. This rule, 
 which differs but little from the Forty-Third Rule, passed in 1835, 
 and from the Sixty-Third Rule passed in 1853, provides that where 
 a writ of error or au appeal is brought from a judgment or decree 
 rendered thirty days before the commencement of the term, it 
 shall be the duty of the plaintiff in error or appellant to docket the 
 cause and file the record with the clerk of the Supreme Court, 
 within the first six days of the term ; ^ and if the writ of error or 
 appeal be brought from a judgment or decree rendered less than 
 thirty days before the commencement of the term, it shall be the 
 duty of the plaintiff m error or appellant to docket the cause, and 
 file the record with the clerk of the Supreme Court within the first 
 thirty days of the term. If the plaintiff iu error fails to comply 
 with this rule, the defendant in error or appellee may have it 
 docketed and dismissed"^ upon producing a certificate from the 
 clerk of the court wherein the judgment or decree was entered, 
 stating the cause and certifying that such writ of error or appeal 
 was duly sued out and allowed.'* 
 
 ^ The Jonquille, 6 Wheat. 452. 
 
 ^ It was held under this rule in Sparrow r. Sti-ong, 3 Wallace, 97, that if no 
 motion to dismiss were previously made, the record might be filed by the appel- 
 lant, and the cause docketed at any time within the term. The time in which the 
 appellant must file the record is peremptory, and " can in no respect depend upon 
 the convenience of the clerks of the inferior courts. Sturgess v. Harrold, 18 How. 
 40. The counsel for the appellants in this case applied for au extension of time 
 under the 63d Rule, and presented a certificate of the clerk of the circuit court 
 to the effect that he could not consistently with the other duties of his othce make 
 out and have ready the transcripts of the records and proceedings within the time 
 specified. The court refused to grant the motion. 
 
 ' United States v. Fremont, 18 How. 30. 
 
 * The names of the parties must be stated in full, and it is not sufficient to say 
 HoUiday et al. v. Batson et al. HoUiday v. Batson, 4 How. 645 ; Smith v. Clark, 
 12 How. 21. The certificate must also state specifically the day of the entry of 
 the judgment or the decree, and it is not enough that the term is given, because 
 the term may not have ended thirty days before the term of the Supreme Court 
 commenced. Rhodes r. Steamship Galveston, 10 How. 144.
 
 CH. XVIII.] APPEALS. 507 
 
 The plaintiff in error or appellant is not entitled to docket the 
 cause and file the record after the same is docketed and dismissed 
 under this rule unless by order of court. 
 
 The defendant in error or appellee may at his option docket the 
 cause and file a copy of the record with the clerk of the court ; 
 and if the case is docketed, and a copy of the record filed vrith the 
 clerk by the plaintiff or appellant within the periods of time above 
 limited and prescribed by this rule, or by the defendant in error 
 or appellee, at any time thereafter during the term, the case shall 
 stand for argument at the term. Where writs of error and appeals 
 are from California, Oregon, Washington, Xew Mexico, Utah, and 
 Nevada, the period of thirty days is extended to sixty days.^ 
 
 By the Thirty-First Rule of the Supreme Court- on the filing of 
 the transcript of a record brought up by writ of error or appeal, 
 the appearance of the counsel for the plaintiff in error or appellant 
 is to be entered, and no motion to dismiss, except on special 
 assignment by the court, is to be heard, unless previous notice 
 has been given to the adverse party, or the counsel or attorney for 
 such party. 
 
 Besides the bond given in the circuit court, the appellant is 
 obliged to give to the clerk of the Supreme Court a bond with 
 competent security to secure his fees, in the penalty of two hun- 
 dred dollars, or a deposit of that amount to be placed in the bank 
 subject to his draft.^ 
 
 By a rule passed in 1823,* it was provided that no cause would 
 
 * In German v. United States, 5 Wallace, 825, on motion to dismiss an appeal 
 from California, it appeared that the appeal was allowed on the 26th October, 
 1864, and the record was filed in the Supreme Court the 21st August, 1865. 
 The court said : '• This was too late. The record should have been brought and 
 filed within the first sixty days of the next term of this court. This was not done, 
 nor was the record returned within the term. The appeal, therefore, must be 
 dismissed." 
 
 » 6 Wallace, v. 
 
 ' Rule 10, 21 How. viii. In O wings i-. Tiernan, 10 Pet. 24, a motion was made 
 to docket the cause, and at the same time a motion was made to dismiss it 
 because no bond was filed. The court allowed the cause to be docketed, and 
 granted further time to the parties in which to file the bond. But if the bond is 
 not filed at the first term, although the court will allow the cause to be entered 
 at a subsequent term, yet they will not allow it to be entered as of the former 
 term, although both parties consent to its being done. Van Rensselaer v. Watts, 
 7 How. 784. See post, p. 508, n. 4. 
 
 * 31st Rule, 1 How. xxxi.
 
 508 ADMIRALTY PRACTICE. [BOOK III. 
 
 be afterwards heard until a complete record, containing in itself, 
 without references aliunde, all the papers, exhibits, depositions, 
 and other proceedings which are necessary to the hearing in the 
 Supreme Court, should be filed. By an act of 1853, it was de- 
 clared that in equity and admiralty causes only such orders and 
 memorandums as may be necessary to show the jurisdiction of the 
 court and the regularity of the proceedings shall be entered on the 
 final record ; and in case of an appeal, copies of the proofs, and of 
 such entries and papers on file as may be necessary on hearing of 
 the appeal, may be certified up to the appellate court. ^ The rule 
 of 1823 is, however, re-enacted by the eighth new rule of 1858." 
 Some other peculiarities of practice in the Supreme Court may be 
 found in their general rules, which are printed in the 21st of 
 Howard. 
 
 If both parties appeal to the Supreme Court, a transcript of the 
 record filed in said court by either party on his appeal may be 
 used on both appeals, and both appeals may be heard by tlie court 
 in the same manner as if records had been filed by the appellants 
 in both cases." 
 
 In 1863 an act was passed providing that whenever any writ of 
 error, appeal, or other process in law, admiralty, or equity should 
 issue from or be brought up to the Supreme Court of the United 
 States, either by the United States, or by direction of any depart- 
 ment of the government thereof, no bond, obligation, or security 
 should be required from the United States, or from any party act- 
 ing under the direction aforesaid, by any judge or clerk of court, 
 either to prosecute said suit or to answer in damages or costs. 
 And that in case of an adverse decision, such costs as by law are 
 taxable against the United States should be paid out of the con- 
 tiuo-ent fund of the department under whose direction the proceed- 
 ino- was instituted.^ In 1868 the provisions of this act were ex- 
 tended to writs of error, appeals, or other process in law, admi- 
 ralty, or equity, issuing from or brought up to a circuit court of 
 the United States.^ 
 
 > Act of 1853, c. 80, § 1, 10 U. S. Stats, at Large, 163. 
 
 ^ 21 How. vii. 
 
 « Act of 1861, c. 61, 12 U. S. Stats, at Large, 319. 
 
 * Act of 1863, c. 50, 12 U. S. Stats, at Large, 657. 
 
 * Act of 1868, c. 255, 15 U. S. Stats, at Large, 226.
 
 APPENDIX.
 
 APPENDIX. 
 
 ' Two modes of arranging these statutes and statutory provisions have been 
 considered ; one, to place them in the chronological order of their enactment ; the 
 other, to group them by their subjects, so that those which relate to the same 
 matter may be found together. The latter method has obvious advantages, and 
 has been given up only because it was found to be open to very serious objec- 
 tions. The most important of these arise from the fact that many provisions of 
 great moment are intercalated in statutes where they have no legitimate place. 
 For example, the enactment against flogging of seamen is contained — not in a 
 separate section — but in a mere proviso, in an appropriation bill ! This prevail- 
 ing want of an arrangement by subjects in the statutes themselves makes it diffi- 
 cult to arrange them thus in this Appendi.x. And, upon the whole, it has seemed 
 best to place them chronologically, and facilitate a reference to them, partly by a 
 list, and much more by a full index of the matters in the Appendix, which will 
 follow immediately after the General Index. 
 
 ACT OF 1789, CHAPTER 9 (1 U. S. Stats, at Large, 53). 
 
 An Act concerning Pilots. 
 
 Sec. 4. And he it further enacted, That all pilots in the bays, inlets, 
 rivers, harbors, and ports of the United States shall continue to be regu- 
 lated in conformity with the existing laws of the States respectively 
 wherein such pilots may be, or with such laws as the States may respec- 
 tively hereafter enact for the purpose, until further legislative provision 
 shall be made by Congress. 
 
 ACT OF 1790, CHAPTER 9 (1 U. S. Stats, at Large, 112). 
 
 An Act for the Punishment of certain Crimes against the United States. 
 
 Skc. 8. And be it further enacted, That if any person or persons shall 
 commit upon the high seas, in any river, haven, basin, or bay, out of the
 
 512 APPENDIX. 
 
 r 
 
 jurisdiction of any particular State, murder or robbery, or any other offence 
 which, if committed within the body of a county, would by the laws of the 
 United States be punishable with death ; or if any captain or mariner of 
 any ship or other vessel shall piratically and feloniously run away with 
 such ship or vessel, or any goods or merchandise to the value of fifty dol- 
 lars, or yield up such ship or vessel voluntarily to any pirate ; or if any 
 seaman shall lay violent hands upon his commander, thereby to hinder 
 and prevent his fighting in defence of his ship or goods committed to his 
 trust, or shall make a revolt in the ship ; every such offender shall be 
 deemed, taken, and adjudged to be a pirate and felon, and being thereof 
 convicted, shall suffer death; and the trial of crimes committed on the 
 high seas, or in any place out of the jurisdiction of any particular State, 
 shall be in the district where the offender is apprehended, or into which he 
 may first be brought. 
 
 Sec. 9. And be it further enacted^ That if any citizen shall commit any 
 piracy or robbery aforesaid, or any act of hostility against the United 
 States, or any citizen thereof, upon the high sea, under color of any com- 
 mission from any foreign prince, or state, or on pretence of authority from 
 any person, such offender shall, notwithstanding the pretence of any such 
 authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, 
 and on being thereof convicted, shall suffer death. 
 
 Sec. 10. And he it further enacted, That every person who shall, either 
 upon the land or the seas, knowingly and wittingly aid and assist, procure, 
 command, counsel, or advise any person or persons, to do or commit any 
 murder or robbery, or other piracy aforesaid, upon the seas, which shall 
 affect the life of such person, and such person or persons shall thereupon 
 do or commit any such piracy or robbery, then all and every such person 
 so as aforesaid aiding, assisting, procuring, commanding, counselling, or 
 advising the same, either upon the land or the sea, shall be, and they are 
 hereby declared, deemed, and adjudged to be accessory to such piracies 
 before the fact, and every such person being thereof convicted shall suffer 
 death. 
 
 Sec. 11. And he it further enacted, That after any murder, felony, rob- 
 bery, or other piracy whatsoever aforesaid, is or shall be committed by 
 any pirate or robber, every person who knowing that such pirate or rob- 
 ber has done or committed any such piracy or robbery, shall on the land 
 or at sea receive, entertain, or conceal any such pirate or robber, or receive 
 or take into his custody any ship, vessel, goods, or chattels, which have 
 been by any such pirate or robber piratically and feloniously taken, shall 
 be, and are hereby declared, deemed, and adjudged to be accessory to such 
 piracy or robbery, after the fact ; and on conviction thereof, shall be im- 
 prisoned not exceeding three years, and fined not exceeding five hundred 
 dollars.
 
 APPENDIX. 613 
 
 Sec. 12. And he it further enacted, That if any seaman or other person 
 shall commit manslaughter upon the high seas, or confederate, or attempt, 
 or endeavor to corrupt any commander, master, oflftcer, or mariner, to 
 yield up or to run away with any ship or vessel, or with any goods, wares, 
 or merchandise, or to turn pirate, or to go over to or confederate with 
 pirates, or in any wise trade with any pirate, knowing him to be such, or 
 shall furnish such pirate with any ammunition, stores, or provisions of any 
 kind, or shall fit out any vessel knowingly and with a design to trade with 
 or supply or correspond with any pirate or robber upon the seas ; or if 
 any person or persons shall any ways consult, combine, confederate, or 
 correspond with any pirate or robber on the seas, knowing him to be 
 guilty of any such piracy or robbery ; or if any seaman shall confine the 
 master of any ship or other vessel, or endeavor to make a revolt in such 
 ship ; such person or persons so off"ending, and being thereof convicted, 
 shall be imprisoned not exceeding three years, and fined not exceeding 
 one thousand dollars. 
 
 Sec. 13. And he it further enacted, That if any person or persons, 
 within any of the places upon the land under the sole and exclusive juris- 
 diction of the United States, or upon the high seas, in any vessel belonging 
 to the United States, or to any citizen or citizens thereof, on purpose and 
 of malice aforethought, shall unlawfully cut off the ear or ears, or cut out 
 or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, 
 or cut off or disable any limb or member of any person, with intention in 
 so doing to maim or disfigure such person in any the manners before men- 
 tioned, then and in every such case the person or persons so otFending, 
 their counsellors, aiders, and abettors (knowing of and privy to the offence 
 aforesaid) shall, on conviction, be imprisoned not exceeding seven years, 
 and fined not exceeding: one thousand dollars. 
 
 ACT OF 1790, CHAPTER 29 (I U. S. Stats, at Large, 131). 
 An Act for the Government and Regulation of Seamen in the Merchant Service. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That from and 
 after the first day of December next, every master or commander of any 
 ship or vessel bound from a port in the United States to any foreign port, 
 or of any ship or vessel of the burden of fifty tons or upwards, bound from 
 a port in one State to a port in any other than an adjoining State, shall, 
 before he proceed on such voyage, make an agreement, in writinf or in 
 
 VOL. II. 33
 
 514 APPENDIX. 
 
 print, with every seaman or mariner on board sucli ship or vessel (except 
 such as shall be apprentice or servant to himself or owners) declai'ing the 
 voyage or voyages, term or terms of time, for which such seaman or 
 mariner shall be shipped. And if any master or commander of such ship 
 or vessel shall caiTy out any seaman or mariner (except apprentices or 
 servants as aforesaid) without such contract or agreement being first made 
 and signed by the seamen and mariners, such master or commander shall 
 pay to every such seaman or mariner the highest price or wages which 
 shall have been given at the port or place where such seaman or mariner 
 shall have been shipped, for a similar voyage, within three months next 
 before the time of such shipping: Provided such seaman or mariner shall 
 perform such voyage : or if not, then for such time as he shall continue to 
 do duty on board such ship or vessel ; and shall moreover forfeit twenty 
 dollars for every such seaman or mariner, one half to the use of the person 
 prosecuting for the same, the other half to the use of the United States ; 
 and such seaman or mariner, not having signed such contract, shall not be 
 bound by the regulations, nor subject to the penalties and forfeitures, con- 
 tained in this act. 
 
 Sec. 2. And be it further enacted, That at the foot of every such con- 
 tract, there shall be a memorandum in writing, of the day and the hour on 
 which such seaman or mariner, who shall so ship and subscribe, shall 
 render themselves on board, to begin the voyage agreed upon. And if 
 any such seaman or mariner shall neglect to render himself on board the 
 ship or vessel, for which he has shipped, at the time mentioned in such 
 memorandum, 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 name of such seaman or 
 mariner, and shall in like manner note the time that he so neglected to 
 render himself (after the time appointed), every such 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 mariner shall wholly neglect to 
 render himself on board of such ship or vessel, or having rendered himself 
 on board, shall afterwards desert and escape, so that the ship or vessel 
 proceed to sea without him, every such seaman or mariner shall forfeit 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 
 si^nino' the contract, over and besides the sum so advanced, both which 
 sums shall be recoverable in any court, or before any justice or justices of 
 any State, city, town, or county within the United States, which, by the 
 laws thereof, have cognizance of debts of equal value, against such seaman 
 or mariner, or his surety or sureties, in case he shall have given surety to 
 proceed the voyage.
 
 APPENDIX. 515 
 
 Sec. 3. And be it further enacted, That if the mate or first officer under 
 the master, and a majority of the crew of any ship or vessel, bound on a 
 voyage to any foreign port, shall, after the voyage is begun (and before 
 the ship or vessel shall have left the land) discover that the said ship or 
 vessel is too leaky, or is otherwise unfit in her crew, body, tackle, apparel, 
 furniture, provisions, or stores, to proceed on the intended voyage, and 
 shall require such unfitness to be inquired into, the master or commander 
 shall, upon the request of the said mate (or other officer) and such ma- 
 jority, forthwith proceed to or stop at the nearest or most convenient port 
 or place where such inquiry can be made, and shall there apply to the 
 judge of the district court, if he shall there reside, or if not, to some justice 
 of the peace of the city, town, or place, taking with him two or more of the 
 said crew who shall have made such request; and thereupon such judge or 
 justice is hereby authorized and required to issue his precept directed to 
 three persons in the neighborhood, the most skilful in maritime affairs that 
 can be procured, requiring them to repair on board such ship or vessel, 
 and to examine the same in respect to the defects and insufficiencies com- 
 plained of, and to make report to him the said judge or justice, in writing 
 under their hands, or the hands of two of them, whether in any, or in what 
 respect the said ship or vessel is unfit to proceed on the intended voyage, 
 and what addition of men, provisions, or stores, or what repairs or altera- 
 tions in the body, tackle, or apparel will be necessary ; and upon such 
 report the said judge or justice shall adjudge and determine, and shall 
 indorse on^the said report bis judgment, whether the said ship or vessel is 
 fit to proceed on the intended voyage ; and if not, whether such repairs can 
 be made or deficiencies supplied where the ship or vessel then lays, or 
 whether it be necessary for the said ship or vessel to return to the port 
 from whence she first sailed, to be there refitted ; and the master and crew 
 shall in all things conform to the said judgment ; and the master or com- 
 mander shall, in the first instance, pay all the costs of such view, report, 
 and judgment, to be taxed and allowed on a fair copy thereof, certified by 
 the said judge or justice. But if the complaint of the said crew shall 
 appear upon the said report and judgment to have been without foundation, 
 then the said master, or the owner, or consignee of such ship or vessel, shall 
 deduct the amount thereof, and of reasonable damages for the detention (to 
 be ascertained by the said said judge or justice) out of the wages growing 
 due to the complaining seamen or mariners. And if, after such judgment, 
 such ship or vessel is fit to pi'oceed on her intended voyage, or after pro- 
 curing such men, provisions, stores, repairs, or alterations as may be 
 directed, the said seamen or mariners, or either of them, shall refuse to 
 proceed on the voyage, it shall and may be lawful for any justice of the 
 peace to commit by warrant under his hand and seal every such seaman or
 
 516 ' APPENDIX. 
 
 mai'iner (who shall so refuse) to the common gaol of the county, there to 
 remain without bail or main prize, until he shall have paid double the sum 
 advanced to him at the time of subscribing the contract for the voyage, 
 together with such reasonable costs as shall be allowed by the said justice, 
 and inserted in the said warrant, and the surety or sureties of such seaman 
 or mariner (in case he or they shall have given any) shall remain liable for 
 such payment ; nor shall any such seaman or mariner be discharged upon 
 any writ of habeas corpus or otherwise, until such sum be paid by him or 
 them, or his or their surety or sureties, for want of any form of commit- 
 ment, or other previous proceedings. Provided, That sufficient matter 
 shall be made to appear, upon the return of such habeas corpus, and an 
 examination then to be had, to detain him for the causes hereinbefore 
 assigned. 
 
 Sec. 4. And he it further enacted, That if any person shall harbor or 
 secrete any seaman or mariner belonging to any ship or vessel, knowing 
 them to belong thereto, every such person, on conviction thereof before 
 any court in the city, town, or county where he, she, or they may reside, 
 shall forfeit and pay ten dollars for every day which he, she, or they shall 
 continue so to harbor or secrete such seaman or mariner, one half to the 
 use of the person prosecuting for the same, the other half to the use of the 
 United States ; and no sum exceeding one dollar shall be recoverable 
 from any seaman or mariner by any one person, for any debt contracted 
 during thfe time such seaman or mariner shall actually belong to any ship 
 or vessel, until the voyage for which such seaman or mariner engaged 
 shall be ended. 
 
 Sec. 5. And be it further enacted, 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 
 shipped, without leave of the master or officer commanding on board ; 
 and the mate, or other officer having charge of the log-book, shall make 
 an entry therein of the name of such seaman or mariner, on the day on 
 which he shall so absent himself, and if such seaman or mariner shall 
 return to his duty within forty-eight hours, such seaman or mariner shall 
 forfeit three days' pay for every day which he shall so absent himself, to 
 be deducted out of his wages ; but if any seaman or mariner 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 in any store where they may have been lodged 
 at the time of his desertion, to the use of the owners of the ship or ves- 
 sel, and moreover shall be liable to pay to him or them all damages which 
 he or they may sustain by being obliged to hire other seamen or mariners 
 in his or their place, and such damages shall be recovered with costs, in
 
 APPENDIX. 517 
 
 any court or before any justice or justices having jurisdiction of the 
 recovery of debts to the value of ten dollars or upwards. 
 
 Sec. 6. And be it further enacted. That every seaman or mariner shall 
 be entitled to demand and receive from the master or commander of the 
 ship or vessel to which they belong one third part of the wa^^es which 
 shall be due to him at every port where such ship or vessel shall unlade 
 and deliver her cargo before the voyage be ended, unless the contrary be 
 expressly stipulated in the contract ; and as soon as the voyage is ended, 
 and the cargo or ballast be fully discharged at the last port of delivery, 
 every seaman or mariner shall be entitled to the wages which shall be 
 then due according to his contract ; and if such wages shall not be paid 
 within ten days after such discharge, or if any dispute shall arise between 
 the master and seamen or mariners touching the said wages, it shall be 
 lawful for the judge of the district where the said ship or vessel shall be, 
 or in case his residence be more than three miles from the place, or of 
 his absence from the place of his residence, then, for any judge or justice 
 of the peace, to summon the master of such ship or vessel to appear 
 before him, to show cause why process should not issue against such ship 
 or vessel, her tackle, furniture, and apparel, according to the course of 
 admiralty courts, to answer for the said wages : and if the master shall 
 neglect to appear, or appearing, shall not show that the wages are paid, 
 or otherwise satisfied or forfeited, and if the matter in- dispute shall not 
 be forthwith settled, in such case the judge or justice shall certify to the 
 clerk of the court of the district, that there is sufficient cause of com- 
 plaint whereon to found admiralty process, and thereupon the clerk of 
 such court shall issue process against the said ship or vessel, and the suit 
 shall be proceeded on in the said court, and final judgment be given 
 according to the course of admiralty courts in such cases used ; and in 
 such suit all the seamen or mariners (having cause of complaint of the 
 like kind against the same ship or vessel) shall be joined as complain- 
 ants ; and it shall be incumbent on the master or commander to produce 
 the contract and log-book, if required, to ascertain any matters in dis- 
 pute ; otherwise the complainants shall be permitted to state the contents 
 thereof, and the proof of the contrary shall lie on the master or com- 
 mander ; but nothing herein contained shall prevent any seaman or mar- 
 iner from having or maintaining any action at common law for the recov- 
 ery of his wages, or from immediate process out of any court having 
 admiralty jurisdiction, w^herever any ship or vessel may be found, in case 
 she shall have left the port of delivery where her voyage ended, before 
 payment of the wages, or in case she shall be about to proceed to sea 
 before the end of the ten days next after the delivery of her cargo or 
 ballast.
 
 618 APPENDIX. 
 
 Sec. 7. And be it further enacted, That if any seaman or mariner, who 
 shall have signed a contract to perform a voyage, shall, at any port or 
 place, desert, or shall absent himself from such ship or vessel, without 
 leave of the master, or officer commanding in the absence of the master, 
 it shall be lawful for any justice of peace within the United States (upon 
 the complaint of the master) to issue his warrant to apprehend such de- 
 serter, and bring him before such justice ; and if it shall then appear, by 
 due proof, 'that he has signed a contract within the intent and meaning 
 of this act, and that the voyage agreed for is not finished, altered, or the 
 contract otherwise dissolved, and that such seaman or mariner has de- 
 serted the ship or vessel, or absented himself without leave, the said 
 justice shall commit him to the house of correction or common jail of the 
 city, town, or place, there to remain until the said ship or vessel shall 
 be ready to proceed on her voyage, or till the master shall require his 
 discharge, and then to be delivered to the said master, he paying all the 
 cost of such commitment, and deducting the same out of the wages due 
 to such seaman or mariner. 
 
 Sec. 8. And be it further eriacted, That every ship or vessel belonging 
 to a citizen or citizens of the United States, of the burden of one hun- 
 dred and fifty tons or upwards, navigated by ten or more persons in the 
 whole, and bound on a voyage without the limits of the United States, 
 shall be provided 'with a chest of medicines, put up by some apothecary 
 of known reputation, and accompanied by directions for administering the 
 same ; and the said medicines shall be examined by the same or some 
 other apothecary, once at least in every year, and supplied with fresh 
 medicines in the place of such as shall have been used or spoiled ; and 
 in default of having such medicine-chest so provided, and kept fit for use, 
 the master or commander of such ship or vessel shall provide and pay 
 for all such advice, medicine, or attendance of physicians, as any of the 
 crew shall stand in need of in case of sickness, at every port or place 
 where the ship or vessel may touch or trade at during the voyage, with- 
 out any deduction from the wages of such sick seaman or mariner. 
 
 Sec. 9. Andbeit further enacted, That every ship or vessel, belonging 
 as aforesaid, bound on a voyage across the Atlantic Ocean, shall, at the 
 time of leaving the last port from whence she sails, have on board, well 
 secured under deck, at least sixty gallons of water, one hundred pounds 
 of salted flesh meat, and one hundred pounds of wholesome ship-bread, 
 for every person on board such ship or vessel, over and besides such 
 other provisions, stores, and live-stock as shall by the master or passen- 
 gers be put on board, and in like proportion for shorter or longer voy- 
 ages ; and in case the crew of any ship or vessel, which shall not have been 
 so provided, shall be put upon short allowance in water, flesh, or bread,
 
 APPENDIX. 619 
 
 during the voyage, the master or owner of such ship or vessel, shall pay to 
 each of the crew, one day's wages beyond the wages agreed on, for every 
 day they shall be so put to short allowance, to be recovered in the same 
 manner as their stipulated wages. 
 
 ACT OF 1792, CHAPTER 24 (1 U. S. Stats, at Large, 254). 
 An Act concerning Consuls and Vice-Consuls. 
 
 For carrying into full effect the convention between the King of the 
 French, and the United States of America, entered into for the purpose 
 of defining and establishing the functions and privileges of their respec- 
 tive consuls and vice-consuls : — 
 
 Section 1. Be if enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That where in the 
 seventh article of the said convention, it is agreed that when there shall 
 be no consul or vice-consul of the King of the French, to attend to the 
 saving of the wreck of any French vessels stranded on the coasts of the 
 United States, or that the residence of the said consul, or vice-consul (he 
 not being at the place of the wreck) shall be more distant from the 
 said place than that of the competent judge of the country, the latter 
 shall immediately proceed to perform the oflfice therein prescribed ; the 
 district judge of the United States of the district in which the wreck 
 shall happen shall proceed therein, according to the tenor of the said 
 article. And in such cases it shall be the duty of the officers of the cus- 
 toms within whose districts such wrecks shall happen, to give notice 
 thereof, as soon as may be, to the said judge, and to aid and assist him to 
 perform the duties hereby assigned to him. The district judges of the 
 United States shall also, within their respective districts, be the compe- 
 tent judges, for the purposes expressed in the ninth article of the said 
 convention, and it shall be incumbent on them to give aid to the consuls 
 and vice-consuls of the King of the French, in arresting and securing 
 deserters from vessels of the French nation according to the tenor of the 
 said article. 
 
 And where by any article of the said convention, the consuls and vice- 
 consuls of the King of the French, are entitled to the aid of the compe- 
 tent executive ofiicers of the country, in the execution of any precept, 
 the marshals of the United States and their deputies shall, within their 
 respective districts, be the competent officers, and shall give their aid 
 according to the tenor of the stipulations. 
 
 And whenever commitments to the jails of the country shall become
 
 520 APPENDIX. 
 
 necessary in pursuance of any stipulation of the said convention, they 
 shall be to such jails within the respective districts as other commitments 
 under the authority of the United States are by law made. 
 
 And for the direction of the consuls and vice-consuls of the United 
 States in certain cases. 
 
 Sec. 2. Be it enacted by the authority aforesaid. That they shall have 
 right in the ports or places to which they are or may be severally ap- 
 pointed of receiving the protests or declarations, which such captains, 
 masters, crews, passengers, and merchants, as are citizens of the United 
 States, may respectively choose to make there ; and also such as any foi'- 
 eigner may choose to make before them relative to the personal interest 
 of any citizens of the United States ; and the copies of the said acts duly 
 authenticated by the said consuls or vice-consuls, under the seal of their 
 consulates, respectively, shall receive faith in law, equally as their orig- 
 inals would in all courts in the United States. It shall be their duty, 
 where the laws of the country permit, to take possession of the personal 
 estate left by any citizen of the United States, other than seamen belong- 
 ing to any ship or vessel who shall die within their consulate ; leaving 
 there no legal representative, partner in trade, or trustee by him ap- 
 pointed to take care of his effects, they shall inventory the same with 
 the assistance of two merchants of the United States, or, for want of 
 them, of any others at their choice; shall collect the debts due to the 
 deceased in the country where he died, and pay the debts due from his 
 estate which he shall have there contracted ; shall sell at auction after 
 reasonable public notice, such part of the estate as shall be of a perisha- 
 ble nature, and such further part, if any, as shall be necessaiy for the 
 payment of his debts, and at the expiration of one year from his decease, 
 the residue ; and the balance of the estate they shall transmit to the 
 treasury of the United States, to be holden in trust for the legal claim- 
 ants. But if at any time before such transmission, the legal representa- 
 tive of the deceased shall appear and demand his effects in their hands, 
 they shall deliver them up, being paid their fees, and sliall cease their 
 proceedings. [See Act of 1856, c. 127, § 29.] 
 
 For the information of the representative of the deceased, it shall be 
 the duty of the consul or vice-consul authorized to pi'oceed as aforesaid 
 in the settlement of his estate, immediately to notify his death in one of 
 the gazettes published in the consulate, and also to the Secretary of 
 State, that the same may be notified in the State to which the deceased 
 shall belong ; and he shall also, as soon as may be, transmit to the Secre- 
 tary of State, an inventory of the effects of the deceased, taken as before 
 directed. 
 
 Sec. 3. And be it farther enacted, That the said consuls and vice-con-
 
 APPENDIX. 521 
 
 suls, in cases where ships or vessels of the United States shall be stranded 
 on the coasts of their consulates respectively, shall, as far as the laws of 
 the country will permit, take proper measures, as well for the purpose of 
 saving the said ships or vessels, their cargoes and appurtenances, as for 
 storing and securing the effects and merchandise saved, and for taking 
 an inventory or inventories thereof; and the merchandise and effects 
 saved with the inventory or inventories thereof taken as aforesaid, shall, 
 after deducting therefrom the expense, be delivered to the owner or 
 owners. Provided, That no consul or vice-consul shall have authority to 
 take possession of any such goods, wares, merchandise, or other property, 
 when the master, owner, or consignee thereof is present or capable of 
 taking possession of the same. 
 
 Sec. 4. And he it further enacted. That it shall and may be lawful 
 for every consul and vice-consul of the United States, to take and receive 
 the following fees of office for the services which he shall have performed. 
 
 For authenticating under the consular seal, every protest, declaration, 
 deposition, or other act, which such captains, masters, mariners, seamen, 
 passengers, merchants, or others as are citizens of the United States, may 
 respectively choose to make, the sum of tw^o dollars. 
 
 For the taking into possession, inventorying, selling, and finally set- 
 tling and paying, or transmitting as aforesaid, the balance due on the 
 personal estate left by any citizen of the United States who sliall die 
 within the limits of his consulate, five per centum on the gross amount 
 of such estate. 
 
 For taking into possession and otherwise proceeding on any such 
 estate which shall be delivered over to the legal repi'esentatives before a 
 final settlement of the same, as is hereinbefore directed, two and an half 
 per centum on such part delivered over as shall not be in money, and 
 five per centum on the gross amount of the residue. 
 
 And it shall be the duty of the consuls and vice-consuls of the United 
 States to give receipts for all fees which they shall receive by virtue of 
 this act, expressing the particular services for which they are paid. 
 
 Sec. 5. And he it further enacted, That in case it be found necessary 
 for the interest of the United States, that a consul or consuls be ap- 
 pointed to reside on the coast of Barbary, the President be authorized to 
 allow an annual salary, not exceeding two thousand dollars to each per- 
 son so to be appointed : Provided, That such salary be not allowed to 
 more than one consul for any one of the States on the said coast. 
 
 Sec. 6. And he it further enacted. That every consul and vice-consul 
 shall, before they enter on the execution of their trusts, or if already in 
 the execution of the same, within one year from the passing of this act, 
 or if resident in Asia, within two years, give bond with such sureties as
 
 622 APPENDIX. 
 
 shall be approved by the Secretary of State, in a sum of not less than 
 two thousand nor more than ten thousand dollars, conditioned for the 
 true and faithful discharge of the duties of his office according to law, 
 and also for truly accounting for all moneys, goods, and effects which may 
 come into his possession by virtue of this act ; and the said bond shall 
 be lodged in the office of the Secretary of the Treasury. 
 Sections 7 and 8. [Repealed, Act of 1803, c. 9, § 5.] 
 Sec. 9. And be it further enacted, That the specification of certain 
 powers and duties, in this act, to be exercised or performed by the con- 
 suls and vice-consuls of the United States, shall not be construed to the 
 exclusion of others resulting from the nature of their appointments, or 
 any treaty or convention under which they may act. 
 
 ACT OF 1792, CHAPTER 1 (1 U. S. Stats, at Large, 287). 
 An Act concerning the Registering and Recording of Ships or Vessels. 
 
 Section 1. £e it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That ships or ves- 
 sels, which shall have been registered by virtue of the act, entitled " An 
 act for registering and clearing vessels, regulating the coasting trade, and 
 for other purposes," and those which, after the last day of March next, 
 shall be registered, pursuant to this act, and no other (except such as shall 
 be duly qualified, according to law, for carrying on the coasting trade and 
 fisheries, or one of them) shall be denominated and deemed ships or ves- 
 sels of the United States, entitled to the benefits and privileges appertain- 
 ing to such ships or vessels : Provided, That they shall not continue to 
 enjoy the same, longer than they shall continue to be wholly owned, and 
 to be commanded by a citizen or citizens of the said States. 
 
 Sec. 2. And be it further enacted. That ships or vessels built within the 
 United States, whether before or after, the fourth of July, one thousand 
 seven hundred and seventy-six, and belonging wliolly to a citizen or citi- 
 zens thereof, or not built within the said States, but on the sixteenth day 
 of May, in the year one thousand seven hundred and eighty-nine, belong- 
 ing and thenceforth continuing to belong to a citizen or citizens thereof, 
 and ships or vessels which may hereafter be captui-ed in war, by such 
 citizen or citizens, and lawfully condemned as prize, or which have been, 
 or i^iay be adjudged to be forfeited for a breach of the laws of the United 
 States, being wholly owned by a citizen or citizens thereof, and no other, 
 may be registered as hereinafter directed : Provided, That no such ship 
 or vessel shall be entitled to be so registered, or if registered, to the bene-
 
 APPENDIX. 623 
 
 fits thereof, if owned in whole, or in part, by any citizen in the United 
 States, who usually resides in a foreign country, during the continuance 
 of such residence, unless such citizen be in the capacity of a consul of the 
 United States, or an agent for, and a partner in, some house of trade or 
 copartnership, consisting of citizens of the said States actually carrying 
 on trade within the said States : And provided further, That no ship or 
 vessel, built within the United States, prior to the said sixteenth day of 
 May, which was not then owned wholly, or in part, by a citizen or citi- 
 zens of the United States, shall be capable of being registered, by virtue 
 of any transfer to a citizen or citizens, which may hereafter be made, un- 
 less by way of prize or forfeiture : Provided nevertheless, That this shall 
 not be construed to prevent the registering anew of any ship or vessel, 
 which was before registered, pursuant to the act before mentioned. 
 
 Sec. 3. And he it further enacted, That every ship or vessel, hereafter 
 to be registered (except as is hereinafter provided) shall be registered by 
 the collector of the district in which shall be comprehended the port to 
 which such ship or vessel 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 such ship or vessel, usually resides. And the name of the said 
 ship or vessel, and of the port to which she shall so belong, shall be 
 painted on her stern, on a black ground, in white letters, of not less than 
 three inches in length. And if any ship or vessel of the United States 
 shall be found, without having her name, and the name of the port to 
 which she belongs, painted in manner aforesaid, the owner or owners shall 
 forfeit fifty dollars ; one half to the person giving the information thereof, 
 the other half to the use of the United States.-^ 
 
 Sec. 4. And he it further enacted, That, in order to the registry of any 
 ship or vessel, an oath or affirmation shall be taken and subscribed by the 
 owner, or by one of the owners thereof, before the officer authorized to 
 make such registry, who is hereby empowered to administer the same, 
 declaring, according to the best of the knowledge and belief of the person 
 so swearing or affirming, the name of such ship or vessel, her burden, the 
 place where she was built, if built within the United States, and the year 
 in which she was built ; and if built within the United States, before the 
 said sixteenth day of May, one thousand seven hundred and eighty-nine, 
 that she was then owned wholly, or in part, by a citizen or citizens of the 
 United States ; and if not built within the said States, that slie was, on the 
 said sixteenth day of May, and ever since, hath continued to be, the entire 
 property of a citizen or citizens of the United States ; or that she was, 
 at some time posterior to the time when the act shall take effect (specify 
 
 ^ See act of 1864, c. 78.
 
 524 APPENDIX. 
 
 ing the said time), captured in war by a citizen or citizens of the said 
 States, and lawfully condemned as prize (producing a copv of the sentence 
 of condemnation, authenticated in the usual form) or that she has been 
 adjudged to be forfeited for a breach of the laws of the United States 
 ^producing a like copy of the sentence whereby she shall have been so 
 adjudged), and declaring his or her name and place of abode, and if he 
 or she be the sole owner of the said ship or vessel that such is the case ; 
 or if there be another owner or other owners, that there is or are such 
 other owner or owners, spediying his, her, or their name or names, and 
 place or places of abode, and that he, she. or they, as the case may be, so 
 swearing or affirming, is or are citizens of the United States ; and where 
 an owner resides in a foreign country, in the capacity of a consul of the 
 United States, or as an agent for. and a partner in. a hoase or copartner- 
 ship, consisting of citizens of the United States, and actually carrying on 
 trade within the United States, that such is the case, and that there is no 
 subject or citizen of any foreign prince or state, directly, or indirectly, by 
 way of trust, confidence, or otherwise, interested in such ship or vessel, 
 or in the profits, or issues thereof; and that the master, or commander 
 thereof is a citizen, naming the said master, or commander, and stating 
 the means whereby, or manner in which, he is so a citizen. And in case 
 any of the matters of fact, in the said oath or affirmation alleged, which 
 shall be within the knowledge of the partv so swearing or affirming, shall 
 not be true, there shall be a forfeiture of the ship or vessel, together with 
 her tackle, furniture, and apparel, in respect to which, the same shall have 
 been made, or of the value thereof, to be recovered, with costs of suit, of 
 the person, by whom such oath or affirmation shall have been made : 
 Provided cdxcays. That if the master, or person having the charge or com- 
 mand of such ship or vessel, shall be within the district aforesaid, when 
 application shall be made for registering the same, he shaU, himself, make 
 oath, or affirmation, instead of the said owner, touching his being a citizen, 
 and the means whereby, or manner in which, he is so a citizen ; in which 
 case, if what the said master, or person having the said charge or com- 
 mand, shall so swear or affirm, shall not be true, the forfeiture aforesaid 
 shall not be incurred, but he shalL himself, forfeit and pay, by reason 
 thereof, the sum of one thousand dollars: And provided further. That in 
 the case of a ship or vessel, built within the United States prior to the 
 sixteenth day of May aforesaid, which was not then owned by a citizen 
 or citizens of the United States, but which, by virtue of a transfer to such 
 citizen or citizens, shall have been registered, pursuant to the act before 
 mentioned, the oath or affirmation, hereby required. shaU and may be 
 varied, according to the truth of the case, as often as it shall be requisite 
 to grant a new register for such ship or vessel.
 
 APPENDIX. 525 
 
 Sec. 5. [Repealed. Act of 1868, c. 137.] 
 
 Sec. 6. And be it furl her enacted, That before any ?hip or vessel shall 
 be registered, she shall be measured by a surveyor, if there be one, or by 
 the person he shall appoint, at the port or place where the said ship or 
 vessel may be, and if there be none, by such person as the collector of the 
 district, within which she may be, shall appoint, according to the rule pre- 
 scribed by the forty-third section of the act, intituled " An act to provide 
 more effectually for the collection of the duties imposed by law on goods, 
 wares, and merchandise imported into the United States, and on the ton- 
 nage of ships or vessels." And the officer, or person, by whom such ad- 
 measurement shall be made, shall, for the information of, and as a voucher 
 to, the officer by whom the registry is to be made, grant a certificate, 
 specifying the built of such ship or vessel, her number of decks and 
 masts, her length, breadth, depth, the number of tons she measures, and 
 such other particulars as are usually descriptive of the identity of a ship 
 or vessel ; and that her name, and the place to which she belongs, are 
 painted on her stern, in manner required by the third section of this act ; 
 which certificate shall be countersigned by an owner, or by the master of 
 such ship or vessel, or by some other person who shall attend her ad- 
 measurement, on behalf of her owner or owners, in testimony of the truth 
 of the particulars therein contained ; without which, the said certificate 
 shall not be valid. But in all cases, where a ship or vessel has before 
 been registered, as a ship or vessel of the United States, it shall not be 
 necessary to measure her anew, for the purpose of obtaining another 
 register ; except such ship or vessel shall have undergone some alteration, 
 as to her burden, subsequent to the time of her former registry. 
 
 Sec. 7. And he it further enacted. That, previous to the registry of any 
 ship or vessel, the husband or acting and managing owner, together with 
 the master thereof, and one or more sureties, to the satisfaction of the 
 collector of the district, whose duty it is to make such registry, shall be- 
 come bound to the United States, if such ship or vessel shall be of burden 
 not exceeding fifty tons, in the sum of four hundred dollars ; if of burden 
 above fifty tons, and not exceeding one hundred, in the sum of eight hun- 
 dred dollars : if of burden above one hundred tons, and not exceeding two 
 hundred, in the sum of twelve hundred dollars ; if of burden above two 
 hundred tons, and not exceeding three hundred, in the sum of sixteen 
 hundred dollars ; and if of burden exceeding three hundred tons, in the 
 sum of two thousand dollars ; with condition, in each case, that the cer- 
 tificate of such registry shall be solely used for the ship or vessel for 
 which it is granted, and shall not be sold. lent, or otherwise disposed of 
 to any person or persons whomsoever; and that, in case such ship or 
 vessel shall be lost, or taken by an enemy, burnt, or broken up, or shall
 
 526 APPENDIX. 
 
 be otherwise prevented from returning to the port to which she may be- 
 long, the said certificate, if preserved, shall be delivered up, within eight 
 days after the arrival of the master, or person, having the charge or com- 
 mand of such ship or vessel, within any district of the United States to 
 the collector of such district, and that if any foreigner, or any person or 
 persons, for the use and benefit of such foreigner, shall jiurchase, or other- 
 wise become entitled to the whole, or any part or share of, or interest in, 
 such ship or vessel, the same being within a district of the United States, 
 the said certificate shall, in such case, within seven days after such pur- 
 chase, change, or transfer of property, be delivered up to the collector of 
 the said district; and that if any such purchase, change, or transfer of 
 property, shall happen, when such ship or vessel shall be at any foreign 
 port or place, or at sea, then the said master, or person having the charge 
 or command thereof, shall, within eight days after his arrival within any 
 district of the United States, deliver up the said certificate to the collector 
 of such district ; and every such certificate, so delivered up, shall be forth- 
 with transmitted to the register of the treasury, to be cancelled, who, if the 
 same shall have been delivered up to a collector, other than of the district 
 in which it was granted, shall cause notice of such delivery to be given to 
 the collector of the said district. 
 
 Skc. 8. And be it further enacted, That in order to the registry of any 
 ship or vessel, which, after the last day of March next, shall be built 
 within the United States, it shall be necessary to produce a certificate, 
 under the hand of the principal or master carpenter, by whom, or under 
 whose direction, the said ship or vessel shall have been built, testifying 
 that she was built by him, or under his direction, and specifying the place 
 where, the time when, and the person or persons for whom, and describ- 
 ing her built, number of decks and masts, length, breadth, depth, tonnage, 
 and such other circumstances as are usually descriptive of the identity of 
 a ship or vessel ; which certificate shall be sufficient to authorize the re- 
 moval of a new vessel, from the district where she may be built, to 
 another district in the same, or an adjoining State, where the owner or 
 owners actually reside, provided it be with ballast only. 
 
 Sec. 9. And be it further etiacied, That the several matters hereinbe- 
 fore required, having been complied with, in order to the registeiing of 
 any ship or vessel, the collector of the district, comprehending the port 
 to which she shall belong, shall make, and keep, in some proper book, a 
 record or registry thereof, and shall grant an abstract or certificate of 
 such record or registry, as nearly as may be, in the form following : — 
 
 " In pursuance of an Act of the Congress of the United States of 
 America, intituled ' An act concerning the registering and recording of 
 ships or vessels,' [inserting here the name, occupation, and place of abode
 
 APPENDIX. 527 
 
 of the person by whom the oath, or affirmation aforesaid, shall have been 
 made] having taken or subscribed the oath (or affirmation) required by 
 the said act, and having sworn (or affirmed) that he (or she, and if more 
 than one owner, adding tlie words, ' together with,' and the name or 
 names, occupation or occupations, place or places of abode, of the other 
 owner or owners) is (or are) the only owner (or owners) of the ship or 
 vessel, called the [inserting here her name] of [inserting here the port 
 to which she may belong] whereof [inserting here the name of the mas- 
 ter] is at present master, and is a citizen of the United States, aud that 
 the said ship or vessel was [inserting here when and where built] and 
 [inserting here the name and office, if any, of the person by whom she 
 shall have been surveyed or admeasured] having certified that the said 
 ship or vessel has [inserting here the number of decks] and [inserting 
 here the number of masts] and that her length is [inserting here the 
 number of feet] her breadth [inserting here the number of feet] her 
 depth [inserting here the number of feet] and that she measures [insert- 
 ing here her number of tons] that she is [describing here the particular 
 kind of vessel, whether ship, brigantine, snow, schooner, sloop, or what- 
 ever else, together with her built, and specifying whether she has any, or 
 no gallery or head] and the said [naming the owner, or the master, or 
 other person, acting in behalf of the owner or owners, by whom the cer- 
 tificate of admeasurement shall have been countersigned, as aforesaid] 
 having agreed to the description and admeasurement, above specified, and 
 sufficient security having been given, according to the said act, the said 
 ship or vessel has been duly registered at the port of [naming the port 
 where registered]. Given under my hand and seal, at [naming the said 
 port] this [inserting the particular day] day of [naming the month] in 
 the year [specifying the number of the year, in words at length "] : Pro- 
 vided^ That if the master, or person having the charge or command of 
 such ship or vessel, shall, himself, have made oath or affirmation touch- 
 ing his being a citizen, the Wording of the said certificate shall be varied 
 so as to be conformable to the truth of the case : And provided, That 
 where a new certificate of registry is granted, in consequence of any 
 transfer of a ship or vessel, the words shall be so varied as to refer to 
 the former certificate of registry, for her admeasurement. 
 
 Sec. 10. And he it farther enacted, That it shall be the duty of the 
 Secretary of the Treasury to cause to be prepared, and transmitted, from 
 time to time, to the collectors of the several districts, a sufficient number 
 of forms of the said certificates of registry, attested under the seal of the 
 treasury, and the hand of the register thereof, with proper blanks, to be 
 filled by the said collectors, respectively, by whom, also, the said certifi- 
 cates shall be signed and sealed, before they shall be issued ; and where
 
 628 APPENDIX. 
 
 there is a naval officer at any port, they shall be countersigned by him ; 
 and where there is a surveyor, but no naval officer, they shall be counter- 
 signed by him ; and a copy of eacli shall be transmitted to the said 
 register, who shall cause a record to be kept of the same. 
 
 Sec. 11. And be it further enacted, That where any citizen or citizens 
 of the United States, shall purchase, or become owner or owners of any 
 ship or vessel, entitled to be registered, by virtue of this act, such ship or 
 vessel, being within any district, other than the one, in whicli he or they 
 usually reside, such ship or vessel shall be entitled to be registered by the 
 collector of the district, where such ship or vessel may be, at the time of 
 his or their becoming owner or owners thereof, upon his or their comply- 
 ing with the provisions hereinbefore prescribed, in order to the registry 
 of ships or vessels ; and the oath or affirmation which is required to be 
 taken, may, at the option of such owner or owners, be taken, either be- 
 fore the collector of the district, comprehending the port to which such 
 ship or vessel may belong, or before the collector of the district, within 
 which, such ship or vessel may be, either of whom is hereby empoAvered 
 to administer the same : Provided nevertheless, That whenever such ship 
 or vessel shall arrive within the district comprehending the port to which 
 such ship or vessel shall belong, the certificate of registry, which shall 
 have been obtained, as aforesaid, shall be delivered up to the collector of 
 such district, who, upon the requisites of this act, in order to the registry 
 of shi[)s or vessels, being complied with, shall grant a new one, in lieu of 
 the first ; and the certificate, so delivered up, shall forthwith be returned 
 by the collector who shall receive the same, to the collector who shall 
 have granted it ; and if the said first-mentioned certificate of registry 
 shall not be delivered up, as above directed, the owner or owners, and the 
 master of such ship or vessel, at the time of her said arrival within the 
 district comprehending the port to which such ship or vessel may belong, 
 shall, severally, forfeit the sum of one hundred dollars, to be recovered 
 ■with costs of suit ; and the said certificate of registry shall be thenceforth 
 void. And in case, any of the matters of fact, in the said oath or affir- 
 mation alleged, which shall be within the knowledge of the party, so 
 swearing or affirming, shall hot be true, there shall be a forfeiture of the 
 ship or vessel, together with her tackle, furniture, and apparel, in respect 
 to which, the same shall have been made, or of the value thereof, to be 
 recovered, with costs of suit, of the person by whom such oath or affir- 
 mation shall have been made : Provided always, That if the master, or 
 person having the charge or command of such ship or vessel, shall be 
 within the district aforesaid, when application shall be made for register- 
 ing the same, he shall, himself, make oath or affirmation, instead of the 
 said owner, touching his being a citizen, and the means whereby, or man-
 
 APPENDIX. 529 
 
 ner in which, he is so a citizen ; in which ca,?e, if what the said master, 
 or person having the said charge or command, shall so swear or affirm, 
 shall not be true, the forfeiture aforesaid shall not be incurred, but he 
 shall, himself, forfeit and pay, by reason thereof, the sura of one thousand 
 dollars. 
 
 Sec. 12. Atid be it further enacted, That when any ship or vessel, enti- 
 tled to be registered, pursuant to this act, shall be purchased by an agent 
 or attorney for, or on account of, a citizen or citizens of the United States, 
 such ship or vessel, being in a district of the United States, more than 
 fifty miles distant, taking the nearest usual route by land, from the one 
 comprehending the port to which, by virtue of such purchase, and by 
 force of this act, such ship or vessel ought to be deemed to belong, it shall 
 be lawful for the collector of the district, where such ship or vessel may 
 be, and he is hereby required, upon the application of such agent or 
 attorney, to proceed to tlie registering of the said ship or vessel, the said 
 agent or attorney, first complying, on behalf, and in the stead of, the 
 owner or owners thereof, with the requisites prescribed by this act, in 
 order to the registry of ships or vessels, except, that in the oath or affir- 
 mation, which shall be taken by the said agent or attorney, instead of 
 swearing or affirming that he is owner, or an owner of such ship or ves- 
 sel, he shall swear or affirm, that he is agent or attorney for the owner or 
 owners thereof, and that he hath bo7ia Jide purchased the said ship or 
 vessel, for the person or persons, whom he shall name and describe as the 
 owner or owners thereof : Provided nevertheless, That whenever such ship 
 or vessel shall arrive within the district comprehending the port to which 
 such ship or vessel shall belong, the certificate of I'egistry, which shall 
 have been obtained, as aforesaid, shall be delivered up to the collector of 
 such district, who, upon the requisites of this act, in order to the registry 
 of ships or vessels, being complied with, shall grant a new one, in lieu of 
 the first ; and the certificate, so delivered up, shall forthwith be returned 
 by the collector, who shall transmit the same to the collector who shall 
 have granted it. And if the said first-mentioned certificate of registry, 
 shall not be delivered up, as above directed, the o\vner or owners, and the 
 master of such ship or vessel, at the time of her said arrival within the 
 district comprehending the port to which she may belong, shall, severally, 
 forfeit the sum of one hundred dollars, to be recovered, with costs of suit, 
 and the said certificate of registry shall be thenceforth void. And in 
 case any of the matters of fact, in the said oath or affirmation alleged 
 which shall be within the knowledge of the party so swearing or affii-m- 
 ing, shall not be true, there shall be a forfeiture of the ship or vessel, 
 together with her tackle, furniture, and apparel, in respect to which, the 
 same shall have been made, or of the value thereof, to be recovered, with 
 
 VOL. II. 34
 
 530 APPENDIX. 
 
 costs of suit, of the person by whom such oath or affirmation shall have 
 been made : Provided always, That if the master, or person having the 
 charge or command of such ship or vessel, shall be within the district 
 aforesaid, when application shall be made for registering the same, he 
 shall, himself, make oath or affirmation, instead of the said agent or attor- 
 ney, touching his being a citizen, and the means whereby, or manner 
 in which, he is so a citizen ; in which case, if what the said master, 
 or person having the said charge or command, shall so swear or affirm, 
 shall not be true, the forfeiture aforesaid shall not be incurred, but he 
 shall, himself, forfeit and pay, by reason thereof, the sum of one thousand 
 dollars. 
 
 Sec. 13. And he it further enacted, Tliat if the certificate of the regis- 
 try of any ship or vessel shall be lost or destroyed, or mislaid, the master, 
 or other person having the charge or command thereof, may make oath or 
 affirmation, before the collector of the district where such ship or vessel 
 shall first be, after such loss, destruction, or mislaying, who is hereby au- 
 thorized to administer the same, which oath or affirmation shall be of the 
 form following : " I [inserting here the name of the person swearing or 
 affirming] being master (or having the charge or command) of the ship 
 or vessel, called the [inserting the name of the vessel] do swear (or 
 affirm) that the said sliip or vessel, hath been, as I verily believe, regis- 
 tered, according to law, by the name of [inserting again the name of the 
 vessel] and that a certificate thereof was granted b}^ the collector of the 
 district of [naming the district, where registered] which certificate has 
 been lost (or destroyed, or unintentionally and by mere accident mislaid, 
 as the case may be), and (except, where the certificate is alleged to have 
 been destroyed) that the same, if found again, and within my power, 
 shall be delivered up to the collector of the" district, in which it was 
 granted"; which oath, or affirmation, shall be subscribed by the party- 
 making the same, and upon such oath or affirmation being made, and the 
 other requisites of this act, in order to the registry of ships, or vessels, 
 being complied with, it shall be lawful for the collector of the district, be- 
 fore whom such oath or affirmation is made, to grant a new register, 
 inserting therein, that the same is issued, in the room of the one lost or 
 destroyed. But in all cases, where a register shall be granted, in lieu of 
 the one lost or destroyed, by any other than the collector of the district, 
 to which the ship or vessel actually belongs, such register shall, within 
 ten days after her first arrival within the district to which she belongs, be 
 dehvei'ed up to the collector of the said district, who shall, thereupon, 
 grant a new register, in lieu thereof And in case the master, or com- 
 mander shall neglect to deliver up such register witliin the time aforesaid, 
 he shall forfeit one hundred dollars ; and tlie former register shall become 
 null and void.
 
 APPENDIX. 531 
 
 >Skc. 14. And he it further enacted, That when any ship or vessel, 
 which shall have been registered, pursuant to this act, or the act hereby, 
 in part, repealed, shall, in whole, or in part, be sold, or transferred to a 
 citizen or citizens of the United States, or shall be altered in form or 
 burden, by being lengthened, or built upon, or from one denomination 
 to another, by the mode or method of rigging or fitting, in every such 
 case, the said ship or vessel shall be registered anew, by her former 
 name, according to the directions hereinbefore contained (otherwise she 
 shall cease to be deemed a ship or vessel of the United States), and her 
 former certificate 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 to be by him transmitted to the register of the 
 treasury, who shall cause the same to be cancelled. And in every such 
 case of sale or transfer, there shall be some instrument of writing, in the 
 nature of a bill of sale, which shall recite at length the said certificate, 
 otherwise the said ship or vessel shall be incapable of being so regis- 
 tered anew. And in every case in which a ship or vessel is hereby re- 
 quired to be registered anew, if she shall not be so registered anew, she 
 shall not be entitled to any of the privileges or benefits of a ship or ves- 
 sel of the United States. And further, if her said former certificate of 
 registry shall not be delivered up as aforesaid, except where the same 
 may have been destroyed, lost, or unintentionally mislaid, and an oath or 
 affirmation thereof shall have been made, as aforesaid, the owner or owners 
 of such ship or vessel shall forfeit and pay the sum of five hundred dollars, 
 to be recovered with costs of suit. 
 
 Sec. 15. And be it further enacted, That when the master, or person 
 having the charge or command of a ship or vessel, registered pursuant 
 to this act, or the act hereby in part repealed, shall be changed, the 
 owner, or one of the owners, or the new master of such ship or vessel, 
 shall report such change to the collector of the district where the same 
 shall happen, or where the said ship or vessel shall first be, after the 
 same shall have happened, and shall produce to him the certificate of 
 registry of such ship or vessel, and shall make oath or affirmation, show- 
 ing that such new master is a citizen of the United States, and the man- 
 ner in which, or means whereby, he is so a citizen ; whereupon the said 
 collector shall indorse upon the said certificate of registry, a memoran- 
 dum of such change, specifying the name of such new master, and shall 
 subscribe the said memorandum with his name, and if other than the col- 
 lector of the district, by whom the said certificate of registry shall have 
 been granted, shall transmit a copy of the said memorandum to him, 
 with notice of the particular ship or vessel, to which it shall relate ; and 
 the collector of the district, by whom the said certificate shall have been
 
 532 APPENDIX. 
 
 granted, shall make a like memorandum of such change, in his book of 
 registers, and shall transmit a copy thereof, to the register of the treas- 
 ury. And if the said change shall not be reported, or if the said oath 
 or affirmation shall not be taken, as above directed, the registry of such 
 ship or vessel shall be void, and the said master, or person, having the 
 charge or command of her shall forfeit and pay the sum of one hundred 
 dollars. 
 
 Sec. 16. And he it further enacted, That if any ship or vessel hereto- 
 fore registered, or which shall hereafter be registei-ed, as a ship or vessel 
 of the United States, shall be sold or ti'ansferred, in whole or in pai't by 
 way of trust, confidence, or otherwise, to a subject or citizen of any 
 foreign prince or state, and such sale or transfer shall not be made 
 known, in manner hereinbefore directed, such ship or vessel, together 
 with her tackle, apparel, and furniture shall be forfeited : Provided, That 
 if such ship or vessel shall be owned in part only, and it shall be made to 
 appear to the jury, before whom the trial for such forfeiture shall be had, 
 that any other owner of such ship or vessel, being a citizen of the United 
 States, was wholly ignorant of the sale or transfer to, or ownership of, such 
 foreign subject or citizen, the share or interest of such citizen of the United 
 States shall not be subject to such forfeiture ; and the residue only shall be 
 so forfeited. 
 
 Sec. 17. And he it further enacted, That upon the entry of every ship 
 or vessel of the United States, from any foreign port or place, if the same 
 shall be at the port or place, at which the owner, or any of the part- 
 owners reside, such owner or part-owner shall make oath or affirmation, 
 that the register of such ship or vessel contains the name or names of all 
 the persons, who are then owners of the said ship or vessel; or if any 
 part of such ship or vessel has been sold or transferred, since the grant- 
 ing of such register, that such is the case, and that no foreign subject or 
 citizen hath, to the best of his knowledge and belief, any share, by the 
 way of trust, confidence, or otherwise, in such ship or vessel. And if the 
 owner, or any part-owner, shall not reside at the port or place, at which 
 such ship or vessel shall enter, then the master or commander shall make 
 oath or affirmation to the like effect. And if the owner, or part-owner, 
 where there is one, or the master or commander, where there is no owner, 
 shall refuse to swear or affirm as aforesaid, such ship or vessel shall not be 
 entitled to the privileges of a ship or vessel of the United States. 
 
 Sec. 18. And be it further enacted, Tliat in all cases, where the master, 
 commander, or owner of a ship or vessel, shall deliver up the register of 
 such ship or vessel, agreeable to the provisions of this act, if to the col- 
 lector of the district, where the same shall have been granted, the said 
 collector shall, thereupon, cancel the bond, which shall have been given at
 
 APPENDIX. 533 
 
 the time of granting such register ; or, if to the collector of any other dis- 
 trict, such collector shall grant to tlie said master, commander, or owner a 
 receipt or acknowledgment, that such register has been delivered to liim, 
 and the time, when ; and upon such receipt being produced to the collector, 
 by whom the register was granted, he shall cancel the bond of the party, as 
 if the register had been returned to him. 
 
 Sec. 19. And be it further enacted, That the collector of each district 
 shall progressively number the certificates of the registry by him granted, 
 beginning anew, at the commencement of each year, and shall enter an 
 exact copy of each certificate, in a book, to be kept for that purpose ; and 
 shall, once in three months, transmit to the register of the treasury, copies 
 of all the certificates, which shall have been granted by him, including the 
 number of each. 
 
 Sec. 20. And be it further enacted, That every ship or vessel, built in 
 the United States, after the fifteenth day of August, one thousand seven 
 hundred and eighty-nine, and belonging wholly, or in part, to the subjects 
 of foreign powers, in order to be entitled to the benefits of a ship, built 
 and recorded in the United States, shall be recorded in the office of the 
 collector of the district, in which such ship or vessel was built, in manner 
 following, that is to say : the builder of every such ship or vessel shall 
 make oath or affirmation, before the collector of such district, who is 
 hereby authorized to administer the same, in manner following : " I [in- 
 serting here the name of such builder] of [inserting here the place of his 
 residence] shipwright, do swear (or affirm) that [describing here the kind 
 of vessel, and whether ship, brig, snow, schooner, sloop, or whatever else] 
 named [inserting here the name of the ship or vessel] having [inserting 
 here the number of decks] and being, in length [inserting here the 
 number of feet] in breadth [inserting here the number of feet] in depth 
 [inserting here the number of feet] and measuring [inserting here the 
 number of tons] having [specifying whether any or no] gallery, and 
 [also specifying whether any or no] head, was built by me, or under my 
 direction, at [naming the place, county, and State] in the United States, 
 in the year [inserting here the number of the year "] ; wliich oath or 
 affirmation shall be subscribed by the person making the same, and shall be 
 recorded in a book, to be kept, by the said collector, for that purpose. 
 
 Sec. 21. And be it further enacted, Thai the said collector sliall cause 
 the said ship or vessel to be surveyed or admeasured,^ according to the 
 rule prescribed by the forty-third section of the act intituled "An act 
 to provide more effectually for the collection of the duties imposed by 
 law on goods, wares, and merchandise, imported into the United States, 
 and on the tonnage of ships or vessels " ; and the person, by whom such 
 
 ^ See act of 1864, c. 83.
 
 534 APPENDIX. 
 
 admeasurement shall be made, shall grant a certificate thereof, as in the 
 case of a ship or vessel to be registered ; which certificate shall be coun- 
 tersigned by the said builder, and by an owner, or the master, or person 
 having the command or charge thereof, or by some other person, being 
 an agent for the owner or owners thereof, in testimony of the truth of the 
 particulars therein contained. 
 
 Sec. 22. And be it further enacted. That a certificate of the said 
 record, attested under the hand and seal of the said collector, shall be 
 granted to the master of every such ship or vessel, as neai'ly as may be, 
 of the form following : " In pursuance of an act intituled ' An act con- 
 cerning the registering and recording of ships or vessels,' I [inserting 
 here the name of the collector of the district] of [inserting hei'C the 
 name of the district] in the United States, do certify, that [inserting here 
 the name of the builder] of [inserting here the place of his residence, 
 county, and State], having sworn, or affirmed, that the [describing the 
 ship or vessel, as in the certificate of record] named [inserting here her 
 name] whereof [inserting here the name of the master] is, at present, 
 master, was built at [insei'ting here the name of the place, county, and 
 State, where built] by him, or under his direction, in the year [inserting 
 here the number of the year] and [inserting here the name of the sur- 
 veyor, or other person, by whom the same admeasurement shall have 
 been made] having certified, that the said ship or vessel has [inserting 
 here her number of decks] is, in length [inserting here the number of 
 feet] in breadth [inserting here the number of feet] in depth [inserting 
 here the number of feet] and measures [inserting here the number of 
 tons] ; and the said builder and [naming and describing the owner, or 
 master, or agent for the owner or owners, as the case may be, by whom 
 the said certificate shall have been countersicrnedl havino: agreed to the 
 said description and admeasurement, the said ship or vessel has been 
 recorded, in the district of [inserting here the name of the district where 
 recorded] in the United States : Witness my hand and seal, this [insert- 
 ing here the day of the month] day of [inserting here the name of the 
 month] in the year [inserting here the number of the year] " ; which 
 certificate shall be recorded in the office of the said collector, and a 
 duplicate thereof .transmitted to the register of the treasury of the United 
 States, to be recorded in his office. 
 
 Sec, 23. And he it farther enacted, That if the master, or the name, 
 of any ship or vessel so recorded, shall be changed, the owner, part- 
 owner, or consignee of such ship or vessel, shall cause a memorandum 
 thereof to be indorsed on the certificate of the record, by the collector 
 of the district, where such ship or vessel may be, or at which she shall 
 first arrive, if sucii change took plac^ in a foreign country ; and a copy
 
 APPENDIX. 635 
 
 thereof shall be entered in the book of records, a transcript whereof 
 shall be transmitted, by the said collector, to the collector of the district, 
 where such certificate was granted (if not the same person), who shall 
 enter the same in his book of records, and forward a duplicate of such 
 entry, to the register of the treasury of the United States ; and in such 
 case, until the said owner, part-owner, or consignee, shall cause the said 
 memorandum to be made, by the collector, in manner aforesaid, such 
 ship or vessel shall not be deemed, or considered, as a vessel recorded, in 
 pursuance of this act. 
 
 Sec. 24. And be it further enacted, That the master, or other person 
 having the command or charge of any ship or vessel, recorded in pursu- 
 ance of this act, shall, on entry of such ship or vessel, produce the cer- 
 tificate of such record, to the collector of the district, where she shall be 
 so entered ; in failure of which, the said ship or vessel shall not be enti- 
 tled to the privileges of a vessel, recorded as aforesaid : Provided cdioays, 
 and he it further enacted, That nothing herein contained shall be con- 
 strued to make it necessary to record, a second time, any ship or vessel, 
 which shall have been recorded, pursuant to the act, hereby in part re- 
 pealed ; but such recording shall be of the like force and effect, as if 
 made pursuant to this act. 
 
 Sec. 25. And be it further enacted, That the fees and allowances, for 
 the several services to be performed, pursuant to this act, and the distri- 
 bution of the same, shall be as follows, to wit : ^ For the admeasurement 
 of every ship or vessel, of one hundred tons, and under, one cent per 
 ton ; for the admeasurement of every ship or vessel, above one hundred, 
 and not exceeding two hundred tons, one hundred and fifty cents ; for 
 the admeasurement of every ship or vessel, above two hundred tons, two 
 hundred cents ; for every certificate of registry or record, two hundred 
 cents ; for eveiy indorsement upon a certificate of registr}^ or record, one 
 hundred cents ; and for taking every bond required by this act, twenty- 
 five cents. The whole amount of which fees shall be received, and 
 accounted for, by the collector, or, at his option, by the naval officer, 
 where there is one ; and where there is a collector, naval officer, and sur- 
 veyor, shall be equally divided, monthly, between the said officers ; and 
 where there is no naval officer, two thirds to the collector, and the other 
 third to the surveyor ; and where there is only a collector, he shall re- 
 ceive the whole amount thereof; and whei'e there is more than one sur- 
 veyor in any district, each of them shall receive his proportionable part 
 of such fees, as shall arise in the port, for which he is appointed : Pro- 
 vided always, that in all cases where the tonnage of any ship or vessel 
 shall be ascertained, by any person appointed for that purpose, such per- 
 1 See act of 1864, c 83.
 
 536 APPENDIX. 
 
 son shall be paid a reasonable compensation therefor, out of the fees 
 aforesaid, before any distribution thereof, as aforesaid. And every col- 
 lector, and naval otficer, and every surveyor, who shall reside at a port 
 where there is no collector, shall cause to be affixed, and constantly kept, 
 in some conspicuous part of his office, a fair table of the rates of fees, 
 demandable by this act. 
 
 Sec. 26. Aiid be it further enacted, That every collector, or officer, who 
 shall knowingly make, or be concerned in making, any false register or 
 record, or shall knowingly grant, or be concerned in granting, any false 
 certificate of registry or record of, or for any ship or vessel, or other false 
 document whatsoever, touching the same, contrary to the true intent and 
 meaning of this act, or who shall designedly take any other, or greater fees, 
 than are by this act allowed, or who shall receive any voluntary reward or 
 gratuity, for any of the services performed, pursuant thereto ; and every 
 surveyor, or other person appointed to measure any ship or vessel, who 
 shall wilfully deliver to any collector, or naval officer, a false description of 
 such ship or vessel, to be registered or recorded, shall, upon conviction of 
 any such neglect, or offence, forfeit the sum of one thousand dollars, and 
 be rendered incapable of serving in any office of trust or profit, under the 
 United States ; and if any person or persons, authorized and required by 
 this act, in respect to his or their office or offices, to perform any act or 
 thing, required to be done or performed, pursuant to any of the provisions 
 of this act, shall wilfully neglect to do or perform the same, according to 
 the true intent and meaning of this act, such person or persons shall, on 
 being duly convicted thereof, if not subject to the penalty and disqualifica- 
 tion aforesaid, forfeit the sum of five hundred dollars for the first offence, 
 and a like sum for the second offence, and shall, thenceforth, be ren- 
 dered incapable of holding any office of trust or profit under the United 
 States. 
 
 Sec. 27. And be it further enacted, That if any certificate of registry, 
 or record, shall be fraudulently or knowingly used for any ship or vessel, 
 not then actually entitled to the benefit thereof, according to the true 
 intent of this act, such ship or vessel shall be forfeited to the United 
 States, with her tackle, apparel, and furniture. 
 
 Sec. 28. And be it further enacted, That if any person or persons shall 
 falsely make oath or affirmation to any of the matters herein required to 
 be verified, such person or persons shall suffer the like pains and penal- 
 ties, as shall be incurred by persons committing wilful and corrupt per- 
 jury ; and that if any person or persons shall forge, counterfeit, erase, 
 alter, or falsify any certificate, register, record, or other document, men- 
 tioned, described, or authorized, in and by this act, such person, or 
 persons, shall, for every such offence, forfeit the sum of five hundred 
 dollars.
 
 APPENDIX. 537 
 
 Sec. 29. And he it further enacted, That all the penalties and forfeit- 
 ures, which may be incurred, for offences against this act, shall and may 
 be sued for, prosecuted, and recovered, in such courts, and be disposed of 
 in such manner as any penalties and forfeitures which may be incurred 
 for offences against the act, intituled " An act to provide more effectually 
 for the collection of the duties imposed by law on goods, wares, and 
 merchandise, imported into the United States, and on the tonnage of ships 
 or vessels," may be legally sued for, prosecuted, recovered, and disposed 
 of : Provided cdivays, That if any officer entitled to a part or share of any 
 such penalty or forfeiture, shall be necessary as a witness, on the trial for 
 such penalty or forfeiture, such officer may be a witness upon the said 
 trial ; but in such a case, he shall not receive, nor be entitled to any part 
 or share of the said penalty or forfeiture ; and the part or share to which 
 he would otherwise have been entitled, shall accrue to the United States. 
 
 Sec. 30. And he it further enacted, That from and after the last day 
 of March next, this act shall be in full force and effect ; and so much of 
 the act, intituled " An act for registering and clearing vessels, regulating 
 the coasting trade, and for other purposes," as comes within the purview 
 of this act, shall, after the said last day of March, be repealed. 
 
 ACT OF 1793, CHAPTER 8 (1 U. S. Stats, at Large, 305). 
 
 An Act for enrolling and licensing Ships or Vessels to be employed in the Coasting Trade 
 and Fisheries, and for regulating the same. 
 
 Section 1. £e it enacted hy the Senate and House of Hepresentatives of 
 the United States of America in Congress assemhled, That ships or vessels, 
 enrolled by virtue of " An act for registering and clearing vessels, regulat- 
 ing the coasting trade, and for other purposes," and those of twenty tons 
 and upwards, which shall be enrolled after the last day of May next, in 
 pursuance of this act, and having a license in force, or if less than twenty 
 tons, not being enrolled, shall have a license in force, as is hereinafter 
 required, and no others, shall be deemed ships or vessels of the United 
 States, entitled to the privileges of ships or vessels employed in the coasting 
 trade or fisheries. 
 
 Sec. 2. And he it further enacted, That from and after the last day of 
 May next, in order for the enrolment of any ship or vessel, she shall 
 possess the same qualifications, and the same requisites, in all respects, 
 shall be complied with, as are made necessary for registering ships or 
 vessels, by the act, intituled "An act concerning the registering and 
 recording of ships or vessels," and the same duties and authorities are
 
 538 APPENDIX. 
 
 hereby given and imposed on all officers, respectively, in relation to such 
 enrolments, and the same proceedings shall be had, in similar cases, 
 touching such enrolments ; and tlie ships or vessels so enrolled, with the 
 mastei", or owner, or owners thereof, shall be subject to the same requisites, 
 as are in those respects provided for vessels registered by virtue of the 
 aforesaid act ; the record of which enrolment shall be made, and an ab- 
 stract or copy thereof granted, as nearly as may be, in the form following : 
 " Enrolment in conformity to an act of the Congress of the United States 
 of America, intituled ' An act for enrolling and licensing ships or vessels, 
 to be employed in the coasting trade and fisheries, and for regulating the 
 same,' [inserting here the name of the person, with his occupation and 
 place of abode, by whom the oath or affirmation is to be made] having 
 taken and subscribed the oath (or affirmation) required by this act, and 
 having sworn (or affirmed) that he (or she, and if more than one owner, 
 adding the words ' together with,' and the name or names, occupation or 
 occupations, place or places of abode, of the owner or owners) is (or are) 
 a citizen (or citizens) of the United States, and sole owner (or owners) 
 of the ship or vessel, called the [inserting here her name] of [inserting 
 here the name of the port to which she may belong] whereof [inserting 
 here the name of the master] is at present master, and is a citizen of the 
 United States, and that the said ship or vessel was [inserting here when 
 and where built] and [inserting here the name and office, if any, of the 
 person by whom she shall have been surveyed, or admeasured] having 
 certified, that the said ship or vessel has [inserting here the number of 
 decks] and [inserting here the number of masts] and that her length is 
 [inserting here the number of feet] her breadth [inserting here the num- 
 ber pf feet] her depth [inserting here the number of feet] and that she 
 measures [inserting here her number of tons] that she is [describing 
 here the particular kind of vessel, whether ship, brigantine, snow, 
 schooner, sloop, or whatever else, together with her built, and specifying, 
 whether she has any or no gallery or head] and the said [naming the 
 owner, or the master, or other person acting in behalf of the owner or 
 owners, by whom the certificate of admeasurement shall have been coun- 
 tersigned] having agreed to the description and admeasurement above 
 specified, and sufficient security having been given, according to the said 
 act, the said ship or vessel has been duly enrolled, at the port of [naming 
 the port where enrolled]. Given under my hand and seal, at [naming 
 the said port] this [inserting the particular day] of [naming the month] 
 in the year [specifying the number of the year, in words at length]." 
 
 Skc. 3. Aiid be it further enacted, That it shall and may be lawful for 
 the collectors of the several districts, to enroll and license any ship or ves- 
 sel, that may be registered, upon such registry being given up, or to
 
 APPENDIX. 539 
 
 register any ship or vessel, that may be enrolled, upon such enrolment 
 and license being given up. And when any ship or vessel shall be in 
 any other district than the one to which she belongs, the collector of such 
 district, on the application of the master or commander thereof, and upon 
 his taking an oath or affirmation, that according to his best knowledge and 
 belief, the property remains, as expressed in the register or enrolment 
 proposed to be given up, and upon his giving the bonds required for grant- 
 ing registers, shall make the exchanges aforesaid ; but in every such case, 
 the collector, to whom the register, or enrolment and license may be given 
 up, shall transmit the same to the register of the treasury ; and the 
 register, or enrolment and license, granted in lieu thereof, shall, within 
 ten days after the arrival of such ship or vessel within the district, to 
 which she belongs, be delivered to the collector of the said district, and 
 be by him cancelled. And if the said master or commander shall neglect 
 to deliver the said register or enrolment and license, within the time afore- 
 said, he shall forfeit one hundred dollars. 
 
 Sec. 4. And be it further enacted, That in order to the licensing of any 
 ship or vessel, for carrying on the coasting trade or fisheries, the husband', 
 or managing owner, together with the master thereof, with one or more 
 sureties to the satisfaction of the collector granting the same, shall become 
 bound to pay to the United States, if such ship or vessel be of the burden 
 of five tons, and less than twenty tons, the sum of one hundred dollars ; 
 and if twenty tons, and not exceeding thirty tons, the sum of two hundred 
 dollars ; and if above thirty tons, and not exceeding sixty tons, the sum 
 of five hundred dollars ; and if above sixty tons, the sum of one thousand 
 dollars, in case it shall appear, within two years from the date of the bond, 
 that such ship or vessel has been employed in any trade, whereby the 
 revenue of the United States has been defrauded during the time the 
 license granted to such ship or vessel remained in force ; and the master 
 of such ship or vessel shall also swear, or affirm, that he is a citizen of 
 the United States, and that such license shall not be used for any other 
 vessel, or any other employment, than that for which it is specially 
 granted, or in any trade or business, whereby the revenue of the United 
 States may be defrauded ; and if such ship or vessel be less than twenty 
 tons burden, the husband or managing owner shall swear or affirm, that 
 she is wholly the property of a citizen or citizens of the United States ; 
 whereupon it shall be the duty of the collector of the district comprehend- 
 ing the poi't, whereto such ship or vessel may belong (the duty of six 
 cents per ton being first paid), to grant a license, in the form following: 
 " License for carrying on the [here insert coasting trade, whale fishery, 
 or cod fishery, as the case may be]. 
 
 " In pursuance of an act of the Congress of the United States of America,
 
 540 APPENDIX. 
 
 intituled ' An act for enrolling and licensing ships or vessels to be em- 
 ployed in the coasting trade and fisheries, and for regulating the same,' 
 [inserting hei'e the name of the husband or managing owner, with his 
 occupation and place of abode, and the name of the master, with the place 
 of his abode] having given bond, that the [insert here the description of 
 the vessel, whether ship, brigantine, snow, schooner, sloop, or whatever 
 else she may be] called the [insert here the vessel's name] whereof the 
 said [naming the master] is master, burden [insert here the number of 
 tons, in words] tons, as appears by her enrolment, dated at [naming the 
 district, day, month, and year, in words at length (but if she be less than 
 twenty tons, insert, instead thereof), proof being had of her admeasure- 
 ment] shall not be employed in any trade, while this license shall continue 
 in force, whereby the revenue of the United States shall be defrauded, 
 and having also sworn (or affirmed) that this license shall not be used for 
 any other vessel, or for any other employment, than is herein specified, 
 license is hereby granted for the said [inserting here the description of 
 the vessel] called the [inserting here the vessel's name] to be employed 
 in carrying on the [inserting here coasting trade, whale fishery, or cod 
 fishery, as the case may be] for one year from the date hereof, and no 
 longer. Given under my hand and seal, at [naming the said district] this 
 [inserting the particular day] day of [naming the month] in the year 
 [specifying the number of the year in words at length]." 
 
 Sec. 5. Aiid be it further enacted, That no license, granted to any ship 
 or vessel, shall be considered in force, any longer than such ship or vessel 
 is owned, and of the description set forth in such license, or for carrying 
 on any other business or emjjloyment, than that for which she is specially 
 licensed, and if any ship or vessel be found with a forged. or altered license, 
 or making use of a license granted for any other ship or vessel, such ship 
 or vessel, with her tackle, apparel, and the cargo found on board her, shall 
 be forfeited. 
 
 Sec. 6. And he it further enacted, That after the last day of May next, 
 every ship or vessel of twenty tons or upwards (other than such as are 
 registered) found trading between district and district, or between differ- 
 ent places in the same district, or carrying on the fishery, without being 
 enrolled and licensed, or if less than twenty tons, and not less than five 
 tons, without a license, in manner as is provided by this act, such ship or 
 vessel, if laden with goods the growth or manufactui'e of the United 
 States only (distilled spirits excepted) or in ballast, shall pay the same 
 fees and tonnage in every port of the United States, at which she may 
 arrive, as ships or vessels not belonging to a citizen or citizens of the 
 United States, and if she have on board any articles of foreign growth or 
 manufacture, or distilled spirits, other than sea stores, the ship or vessel,
 
 APPENDIX. 541 
 
 together with her tackle, apparel, and furniture, and the lading found on 
 board, shall be forfeited : Provided, however, if such ship or vessel be at 
 sea, at the expiration of the time for which the license was given, and 
 the master of such ship or vessel shall swear or affirm that such was 
 the case, and shall also within forty-eight hours after his arrival deliver 
 to the collector of the district in which he shall first arrive the license 
 which shall have expired, the forfeiture aforesaid shall not be incurred, 
 nor shall the ship or vessel be liable to pay the fees and tonnage afore- 
 said. 
 
 Sec. 7. And be it further enacted, That the collector of each district 
 shall progressively number the licenses by him granted, beginning anew 
 at the commencement of each year, and shall make a record thereof in a 
 book, to be by him kept for that purpose, and shall, once in three months, 
 transmit to the register of the treasury copies of the licenses, which shall' 
 have been so granted by him ; and also of such licenses as shall have 
 been given up or returned to him, respectively, in pursuance of this act. 
 And where any ship or vessel shall be licensed, or enrolled anew, or being 
 licensed or enrolled, shall afterwards be registered, or being registered, 
 shall afterwards be enrolled, or licensed, she shall, in every such case, be 
 enrolled, licensed, or registered by her former name. 
 
 Sec. 8. And be it further enacted, That if any ship or vessel, enrolled 
 or licensed, as aforesaid, shall proceed on a foreign voyage, without fiz'st 
 giving up her enrolment and license to the collector of the district com- 
 prehending the port, from which she is about to proceed on such foreign 
 voyage, and being duly registered by such collector, every such ship or 
 vessel, together with her tackle, apparel, and furniture, and the goods, 
 wares, and merchandise, so imported therein, shall be liable to seizure 
 and forfeiture : Provided always, if the port, from which such ship or 
 vessel is about to proceed on such foreign voyage be not witliin the dis- 
 trict where such ship or vessel is enrolled, the collector of such district 
 shall give to the master of such ship or vessel a certificate, specifying 
 that the enrolment and license of such ship or vessel is received by him, 
 and the time when it was so received ; which certificate shall afterwards 
 be delivered by the said master to the collector, who may have granted 
 such enrolment and license. 
 
 Sec. 9. And be it further enacted. That the license, granted to any ship 
 or vessel, shall be given up to the collector of the district, who may have 
 granted the same, within three days after the expiration of the time for 
 which it was granted, in case such ship or vessel be then within the dis- 
 trict, or if she be absent, at that time, within three days from her first 
 arrival within the district afterwards, or if she be sold out of the district, 
 within tliree days after the arrival of the master within any district, to
 
 542 APPENDIX. 
 
 the collector of such district, taking his certificate therefor; and if the 
 master thereof shall neglect, or refuse to deliver up the license, as afore- 
 said, he shall forfeit fifty dollars; but if such license shall have been pre- 
 viously given up to the collector of any other district, as authorized by 
 this act, and a certificate thereof, under the hand of such collector, be 
 produced by such master, or if such license be lost, or destroyed, or unin- 
 tentionally mislaid, so that it cannot be found, and the master of such 
 ship or vessel shall make and subscribe an oath, or affirmation, that such 
 license is lost, destroyed, or unintentionally mislaid, as he verily believes, 
 and that the same, if found, shall be delivered up, as is herein required, 
 then the aforesaid penalty shall not be incurred. And if such license 
 shall be lost, destroyed, or unintentionally mislaid, as aforesaid, before the 
 expiration of the time for which it was granted, upon the like oath or 
 affirmation being made and subscribed by the master of such ship or ves- 
 sel, the said collector is hereby authorized and required, upon application 
 being made thei'efor, to license such ship or vessel anew. 
 
 Sec. 10. And be it further enacted, That it shall and may be lawful, 
 for the owner or owners of any licensed ship or vessel, to return such 
 license to the collector who granted the same at any time within the year 
 for which it was granted, who shall thereupon, cancel the same, and shall 
 license such vessel anew, upon the application of the owner or owners, 
 and upon the conditions hereinbefore required being complied with ; and 
 in case the term, for which the foi*mer license was granted shall not be 
 expired, an abatement of the tonnage of six cents per ton shall be made, 
 in the proportion of the time so unexjiired. 
 
 Sec. 11. And be it further enacted, That every licensed ship or vessel 
 shall have her name, and the port to which she belongs, painted on her 
 stern, in the manner as is provided for registered ships or vessels, and if 
 any licensed ship or vessel be found, without such painting, the owner or 
 owners thereof shall pay twenty dollars.^ 
 
 Sec. 12. And be it further enacted, That when the master £)f any 
 licensed ship or vessel, ferry-boats excepted, shall be changed, the new 
 master, or, in case of his absence, the owner, or one of the owners thereof, 
 shall report such change to the collector residing at the port where the 
 same may happen, if there be one, otherwise, to the collector residing at 
 any port, wh(^'re such ship or vessel may next arrive, who, upon the oath 
 or affirmation of such new master, or, in case of his absence, of the owner 
 or one of the owners, that he is a citizen of the United States, and that 
 such ship or vessel shall not, while such license continues in foi'ce, be em- 
 ployed in any manner, whereby the revenue of the United States may be 
 defrauded, shall indorse such change on the license, with the name of the 
 
 ^ See act of 18G4,c. 78.
 
 APPENDIX. 543 
 
 new master ; and when any change shall happen, as aforesaid, and such 
 change shall not be reported, and the indorsement made of such change, 
 as is herein required, such ship or vessel, found carrying on the coasting 
 trade or fisheries, shall be subject to pay the same fees and tonnage, as a 
 vessel of the United States, having a register, and the said new master 
 shall forfeit and pay the sum of ten dollars. 
 
 Sec. 13. And be it further enacted, That it sliall be lawful, at all times, 
 for any officer concerned in the collection of the revenue, to inspect the 
 enrolment or license of any ship or vessel ; and if the master of any such 
 ship or vessel shall not exhibit the same, when thereunto required by such 
 officer, he shall pay one hundred dollars. 
 
 Sec. 14. And be it further enacted. That the master or commander of 
 every ship or vessel licensed for carrying on the coasting trade, destined 
 from a district in one State to a district in the same, or an adjoining 
 State on the sea-coast, or on a navigable river, having on board, either 
 distilled spirits in casks exceeding five hundred gallons, wine in casks 
 exceeding two hundred and fifty gallons, or in bottles exceeding one hun- 
 dred dozens, sugar in casks or boxes exceeding three thousand pounds, 
 tea in chests or boxes exceeding five hundred pounds, coffee in casks or 
 bags exceeding one thousand pounds, or foreign merchandise in packages, 
 as imported, exceeding in value four hundred dollars, or goods, wares, or 
 merchandise, consisting of such enumerated or other articles of foreign 
 growth or manufacture, or of both, whose aggregate value exceeds eight 
 * hundred dollars, shall, previous to the departure of such ship or vessel 
 from the port where she may then be, make out and subscribe duplicate 
 manifests of the whole of such cargo on board such ship or vessel, 
 specifying in such manifests, the marks and numbers of every cask, bag, 
 box, chest, or package containing the same, with the name and place of 
 residence of every shipper and consignee and the quantity shipped by 
 and to each, and if there be a collector or surveyor, residing at such port, 
 or within five miles thereof, he shall deliver such manifests to the col- 
 lector, if there be one, otherwise to the surveyor, before whom he shall 
 swear or affirm, to the best of his knowledge and belief, that the goods 
 therein contained were legally imported, and the duties thei'eupon paid 
 or secured, or if spirits distilled within the United States, that the duties 
 thereupon have been paid or secured, whereupon the said collector or 
 surveyor shall certify the same on the said manifests, one of which he 
 shall return to the said master, with a permit, specifying thereon, gen- 
 erally, the lading on board such ship or vessel, and authorizing him to 
 proceed to the port of his destination. And if any sliip or vessel, being 
 laden and destined, as aforesaid, shall depart from the port where she 
 may then be, without the master or commander having first made out
 
 644 APPENDIX. 
 
 and subscribed duplicate manifests of the lading on board such ship or 
 vessel, and in case there be a collector or surveyor residing at such port, 
 or within five miles thereof, without having previously delivered the 
 same to the said collector or surveyor, and obtaining a permit, in manner 
 as is herein required, such master or commander shall pay one hundred 
 dollars. 
 
 Sec. 15. A)id be it further enacted, That the master or commander of 
 every ship or vessel licensed for carrying on the coasting-trade, having on 
 board either distilled spirits in casks exceeding five hundred gallons, wine 
 in casks exceeding two hundred and fifty gallons, or in bottles exceeding 
 one hundred dozens, sugar in casks or boxes exceeding three thousand 
 pounds, tea in chests or boxes exceeding five hundred pounds, coffee in 
 casks or bags exceeding one thousand pounds, or foreign merchandise in 
 packages, as imported, exceeding in value four hundred dollars, or goods, 
 wares, or merchandise, consisting of such enumerated or other articles of 
 foreign growth or manufacture, or of both, wliose aggregate value exceeds 
 eight hundred dollars, and ariuving from a district in one State, at a district 
 in the same or an adjoining State on the sea-coast, or on a navigable river, 
 shall, previous to the unlading of any part of the cargo of such ship or 
 vessel, deliver to the collector, if there be one, or if not, to the surveyor 
 residing at the port of her arrival, or if there be no collector or surveyor 
 residing at such port, then to a collector or surveyor, if there be any such 
 officer, residing within five miles thereof, the manifest of the cargo, cer- 
 tified by thfe collector or surveyor of the district from whence she sailed* 
 (if there be such manifest), otherwise the duplicate manifests thereof, as 
 is hereinbefore directed, to the truth of which, before such officer, he shall 
 swear or affirm. And if there have been taken on board such ship or 
 vessel any other or more goods than are contained in such manifest or 
 manifests, since her departure from the port from whence she first sailed, 
 or if any goods have been since landed, the said master or commander 
 shall make known and particularize the same to the said collector or sur- 
 veyor, or if no such goods have been so taken on board or landed, he shall 
 so declare, to the truth of which he shall swear or affirm : Whereupon, the 
 said collector or surveyor shall grant a permit for unlading a part, or the 
 •whole of such cargo, as the said master or commander may request. And 
 if there be no collector or surveyor residing at or within five miles of the 
 said port of her arrival, the master or commander of such ship or vessel 
 may proceed to discharge the lading from on board such ship or vessel, but 
 shall deliver to the collector or surveyor residing at the first port where he - 
 may next afterwards arrive, and within twenty-four hours of his arrival, 
 the manifest or manifests aforesaid, noting thereon the times when, and 
 places where, the goods therein mentioned have been unladen, to the truth
 
 APPENDIX. 545 
 
 of which, before the said last-mentioned collector or surveyor, he shall swear 
 or afSrm ; and if the master or commander of any such ship or vessel, 
 being laden as aforesaid, shall neglect or refuse to deliver the manifest or 
 manifests, at the times, and in the manner, herein directed, he shall pay 
 one hundred dollars. 
 
 Sec. 16. And be it further enacted, That the master or commander of 
 every ship or vessel, licensed for carrying on the coasting-trade, and being 
 destined from any district of the United States to a district other than a dis- 
 trict in the same, or an adjoining State, on the sea-coast, or on a navigable 
 river, shall, previous to her departure, deliver to the collector residing at 
 the port where such ship or vessel may be, if there is one, otherwise to the 
 collector of the district comprehending such port, or to a surveyor within 
 the district, as the one or the other may reside nearest to the port at which 
 such ship or vessel may be, duplicate manifests of the whole cargo on 
 board such ship or vessel, or if there be no cargo on board, he shall so 
 certify, and if there be any distilled spirits, or goods, wares, and merchan- 
 dise, of foreign growth or manufacture on board, other than what may, by 
 the collector, be deemed sufficient for sea stores, he shall specify in such 
 manifests the marks and numbers of every cask, bag, box, chest, or pack- 
 age, containing the same, with the name and place of residence of every 
 shipper and consignee of such distilled spirits, or goods of foreign growth 
 or manufacture, and the quantity shipped by, and to each, to be by him 
 subscribed, and to the truth of which he shall swear or affirm ; and shall 
 also swear or affirm, before the said collector or surveyor, that such goods, 
 wares, or merchandise, of foreign growth or manufacture, were, to the best 
 of his knowledge and belief, legally imported, and the duties thereupon 
 paid or secured ; or if spirits distilled within the United States, that the 
 duties thereupon have been duly paid or secured ; upon the performance 
 of which, and not before, the said collector or surveyor shall certify the 
 same on the said manifests ; one of which he shall return to the master, 
 with a permit, thereto annexed, authorizing him to proceed to the port of 
 his destination. And if any such ship or vessel shall depart from the port 
 where she may then be, having distilled spirits, or goods, wares, or mer- 
 chandise, of foreign growth or manufacture, on board, without the several 
 things herein required being complied with, the master thereof shall forfeit 
 one hundred dollars ; or if the lading be of goods, the growth or manufac- 
 ture of the United States only, or if such ship or vessel have no cargo, and 
 she depart, without the several things herein required being complied with, 
 the said master shall forfeit and pay fifty dollars. 
 
 Sec. 17. And be it further enacted, That the master or commander of 
 every ship or vessel, licensed to carry on the coasting trade, arriving at any 
 district of the United States, from any district, other than a district in the 
 VOL. II. 35
 
 546 APPENDIX. 
 
 same, or an adjoining State on the sea-coast, or on a navigable river, shall 
 deliver to the collector residing at the j^ort where she may arrive, if there 
 be one, otherwise to the collector or sui'veyor in the district comprehending 
 such poi't, as the one, or the other, may reside nearest thereto, if the collec- 
 tor or surveyor reside at a distance not exceeding five miles, within twenty- 
 four hours, or if at u greater distance, within forty-eight hours next after his 
 arrival ; and previous to the unlading any of the goods brought in such ship 
 or vessel, the manifest of the cargo (if there be any) certified by the col- 
 lector or surveyor of the district from whence she last sailed, and shall make 
 oath or affirmation, before the said collector or surveyor, that there was not 
 when he sailed from the district where his manifest was certified, or has 
 been since, or then is, any more or other goods, wares, or merchandise of 
 foreign growth or manufacture, or distilled spirits (if there be any other 
 than sea stores on board such vessel) than is therein mentioned ; and if 
 there be no such goods, he shall so swear or affirm ; and if there be no 
 cargo on board, he shall produce the certificate of the collector or surveyor 
 of the district from whence she last sailed, as aforesaid, that such is the 
 case : Whereupon such collector or surveyor shall grant a permit for un- 
 lading the whole, or part of such cargo (if there be any) within his district, 
 as the master may request ; and where a part only of the goods, wares, and 
 merchandise, of foreign growth or manufacture, or of distilled spirits, 
 brought in such ship or vessel, is intended to be landed, the said collector 
 or surveyor shall make an indorsement of such part on the back of the 
 manifest, specifying the articles to be landed ; and shall return such mani- 
 fest to the master, indorsing also thereon his permission for such ship or 
 vessel to proceed to the place of her destination ; and if the master of such 
 ship or vessel shall neglect or refuse to deliver the manifest (or if she has 
 no cargo, the certificate), within the time herein directed, he shall forfeit 
 one hundred dollars, and the goods, wares, and merchandise, of foreign 
 growth or manufacture, or distilled spirits, found on board, or landed from 
 such ship or vessel, not being certified, as is herein required, shall be for- 
 feited, and if the same shall amount to the value of eight hundred dollars, 
 such ship or vessel, with her tackle, apparel, and furniture, shall be also 
 forfeited. 
 
 Sec. 18. And he it further enacted, That nothing in this act contained 
 shall be so construed as to oblige the master or commander of any ship or 
 vessel, licensed for carrying on the coasting-trade, bound from a district in 
 one State to a district in the same, or an adjoining State on the sea-coast, 
 or on a navigable river, having on board goods, wares, or merchandise, of 
 the growth, product, or manufactures of the United States only (except 
 distilled spirits) or distilled spirits, not more than five hundred gallons, 
 wine in casks not more than two hundred and fifty gallons, or in bottles not
 
 APPENDIX. 547 
 
 more than one hundred dozens, sugar in casks or boxes not more than 
 three thousand pounds, tea in chests or boxes not moi-e than five hundred 
 pounds, coffee in casks or bags not more than one thousand pounds, or 
 foreign merchandise in packages, as imported, of not more vahie than four 
 hundred dollars, or goods, wares, or merchandise, consisting of such enu- 
 merated or other articles of foreign growth or manufacture, or of both, whose 
 aggregate value shall be not more than eight hundred dollars, to deliver a 
 manifest thereof, or obtain a permit, previous to her departure, or on her 
 ai-rival within such district, to make any report thereof; but such master 
 shall be provided with a manifest, by him subscribed, of the lading, of what 
 kind soever, which was on board such ship or vessel, at the time of his de- 
 parture from the district from which she last sailed, and if the same, or any 
 part of such lading, consists of distilled spirits, or goods, wares, or merchan- 
 dise, of foreign growth or manufacture, with the marks and numbers of 
 each cask, bag, box, chest, or package, containing the same, with the name 
 of the shipper and consignee of each ; which manifest shall be by him ex- 
 hibited, for the inspection of any officer of the revenue, when, by such 
 officer, thereunto required ; and shall also inform such officer from whence 
 such ship or vessel last sailed, and how long she has been in port, when by 
 him so interrogated. And if the master of such ship or vessel shall not be 
 provided, on his arrival within any such district, with a manifest, and 
 exhibit the same, as is herein required, if the lading of such ship or vessel 
 consist wholly of goods, the produce or manufacture of the United States 
 (distilled sjDirits excepted) he shall forfeit twenty dollars, or if there be 
 distilled spirits, or goods, wares, or merchandise, of foreign growth or 
 manufacture, on board, excepting what may be sufficient for sea stores, he 
 shall forfeit forty dollars ; or if he shall refuse to answer the interrogatories 
 truly, as is hei'ein required, he shall forfeit the sum of one hundred dollars. 
 And if any of the goods laden on board such shiji or vessel shall be of for- 
 eign growth or manufacture, or of spirits distilled within the United States, 
 so much of the same as may be found on board such ship or vessel, and 
 which shall not be included in the manifest exhibited by such master, shall 
 be forfeited. 
 
 Sec. 19. And be it further enacted, That it shall and may be lawful 
 for the collector of the district of Pennsylvania, to grant permits for the 
 transportation of goods, wares, or merchandise, of foreign growth or man- 
 ufacture, across the State of New Jersey, to the district of New York, 
 or across the State of Delaware, to any district in the State of Maryland 
 or Vii'ginia ; and for the collector of the district of New York, to grant 
 like permits for the transportation across the State of New Jersey ; and 
 for the collector of any district of Maryland or Virginia, to grant like 
 permits for the transportation across the State of Delaware, to the district
 
 548 APPENDIX. 
 
 of Pennsylvania : Provided, That every such person shall express the 
 name of the owner, or person sendmg such goods, and of the person or 
 persons, to whom such goods shall be consigned, with the marks, numbers, 
 and description of the packages, whether bale, box, chest, or otherwise, 
 and the kind of goods contained therein, and the date, when granted ; 
 and the owner, or person sending such goods, shall swear or affirm that 
 they were legally imported, and the duties thereupon paid or secured : 
 And provided also, That the owner or consignee of all such goods, wares, 
 and merchandise, shall, within twenty-four hours after the arrival thereof, 
 at the place to which they were permitted to be transported, report the 
 same, to the collector of the district where they shall so arrive, and shall 
 deliver up the permit accompanying the same, and if the owner or con- 
 signee aforesaid shall neglect or refuse to make due entry of such goods, 
 within the time, and in the manner, herein directed, all such goods, 
 wares, and merchandise, shall be subject to forfeiture ; and if the permit 
 granted shall not be given up, within the time limited for making the said 
 report, the person or persons to whom it was granted, neglecting or re- 
 fusing to deliver it up, shall forfeit fifty dollars for every twenty-four 
 hours it shall be withheld afterwards : Provided, That where the goods, 
 wares, and merchandise, to be transported in manner aforesaid, shall be 
 of less value than eight hundred dollars, the said oath and permit shall 
 not be deemed necessary, nor shall the owner or consignee be obliged to 
 make report to the collector of the district where the said goods, wares, 
 and merchandise shall arrive. 
 
 Sec. 20. And be it further enacted, That when any ship or vessel of 
 the United States, registered according to law, shall be employed in going 
 from any one district in the United States, to any other district, such ship 
 or vessel, and the master or commander thereof, with the goods she may 
 have on board, pi-evious to her departure from the district, where she 
 may be, and also, upon her arrival in any other district, shall be subject 
 (except as to the payment of fees) to the same regulations, provisions, 
 penalties, and forfeitures, and the like duties are imposed on like officers, 
 as is provided by the sixteenth and seventeenth sections of this act, for 
 ships or vessels licensed for carrying on the coasting trade : Provided 
 however, that nothing herein contained, shall be construed to extend to 
 registered ships or vessels of the United States having on board goods, 
 wares, and merchandise of foreign growth or manufacture, brought into 
 the United States in such ship or vessel from a foreign port, and on 
 which the duties have not been paid or secured, according to law. 
 
 Sec. 21. And be it further enacted. That when any ship or vessel, 
 licensed for carrying on the fishery, shall be intended to touch and trade 
 at any foreign port or place, it shall be the duty of the master, com-
 
 APPENDIX. 549 
 
 mander, or owner, to obtain permission for that purpose, from the col- 
 lector of the district where such ship or vessel may be, previous to her 
 departure, and the master or commander of every such ship or vessel, 
 shall deliver like manifests, and make like entries, both of the ship or 
 vessel, and of the goods, wares, or merchandise on board, within the 
 same time, and under the same penalty, as by the laws of the United 
 States, are provided for ships or vessels of the United States arriving 
 from a foreign port. And if any ship or vessel, licensed for carrying 
 on the fisheries, shall be found within three leagues of the coast, with 
 goods, wares, or merchandise of foreign growth or manufacture, exceed- 
 ing the value of five hundred dollars, without having such permission as 
 is herein directed, such ship or vessel, together with her goods, wares, 
 or merchandise of foreign growth or manufacture imported therein, shall 
 be subject to seizure and forfeiture. 
 
 Sec. 22. And be it further enacted, That the master or commander of 
 every ship or vessel, employed in the transportation of goods from dis- 
 trict to district, that shall put into a port, other than the one to which she 
 was bound, shall, within twenty-four hours of his arrival, if there be an 
 officer residing at such port, and she continue there so long, make report 
 of his arrival, to such officer, with the name of the place he came from, 
 and to which he is bound, with an account of his lading ; and if the mas- 
 ter of such ship or vessel shall neglect or refuse to do the same, he shall 
 forfeit twenty dollars. 
 
 Sec. 23. And he it further enacted, That if the master or commander 
 of any ship or vessel, employed in the transportation of goods, from dis- 
 trict to district, having on board goods, wares, or merchandise, of foreign 
 growth or manufacture, or distilled spirits, shall, on his arrival at the port 
 to which he was destined, have lost or mislaid the certified manifest of the 
 same, or the permit which was given therefor, by the collector or sur- 
 veyor of the district from whence he sailed, the collector of the district 
 where he shall so arrive, shall take bond for the payment of the duties 
 on such goods, wares, and merchandise of foreign growth or manufacture, 
 or distilled spirits, within six months, in the same manner, as though they 
 were imported from a foreign country : Provided however, such bond shall 
 be cancelled, if the said master shall deliver, or cause to be delivered to 
 the collector taking such bond, and within the term therein limited for 
 payment, a certificate from the collector or surveyor of the district from 
 whence he sailed, that such goods were legally exported in such ship or 
 vessel, from such district. 
 
 Sec. 24. And he it further enacted, That the master or commander of 
 every foreign ship or vessel, bound from a district in the United States, 
 to any other district within the same, shall, in all cases, previous to her
 
 550 APPENDIX. 
 
 departure from such district, deliver to the collector of such district, du- 
 plicate manifests of the lading on board such ship or vessel, if there be 
 any, or if there be none, he shall declare that such is the case, and to the 
 truth of such manifests or declaration, he shall swear or affirm, and also 
 obtain a permit, from the said collector, authorizing him to proceed to the 
 place of his destination. And the master or commander of every such 
 ship or vessel, on his arrival within any district, from any other district, 
 shall, in all cases, within forty-eight hours after his arrival, and previous 
 to the unlading any goods from on board such ship or vessel, deliver to 
 the collector of the district where he may have arrived, a manifest of the 
 goods laden on board such ship or vessel, if any there be, or if in ballast 
 only, he shall so declare, and to the truth of which manifest or declara- 
 tion, he shall swear or affirm ; and also, that such manifest contains an 
 account of all the goods, wares, and merchandise which were on board 
 such ship or vessel, at the time, or have been, since her departure from 
 the place from whence she shall be reported last to have sailed ; and he 
 shall also deliver to such collector the permit which was given him from 
 the collector of the district from whence he sailed.^ And if the master 
 or commander of any such ship or vessel shall neglect or refuse comply- 
 ing with any of the requirements herein made, he shall forfeit one hun- 
 dred dollars : Provided always, That nothing herein contained shall be 
 construed as affecting the payment of tonnage, or any other requirements 
 which such ships or vessels are now subject to by the present existing 
 laws of the United States. 
 
 Sec. 25. And be it further enacted, That in every case, where the 
 collector is, by this act, directed to grant any enrolment, license, certifi- 
 cate, permit, or other document, the naval officer residing at the port (if 
 there be one) shall sign the same, and every surveyor who shall certify 
 a manifest, or grant a permit, or who shall receive any certified mani- 
 fest, or a permit as is provided for in this act, shall make monthly returns 
 thereof, or sooner, if it can conveniently be made, to the collector of the 
 district where such surveyor may reside. 
 
 Sec. 26. And he it further enacted. That before any ship or vessel, of 
 the burden of five tons, and less than twenty tons, shall be licensed, the 
 same admeasurement shall be made of such ship or vessel, and the same 
 provisions observed relative thereto, as are to be observed in case of 
 admeasuring ships or vessels to be registered or enrolled ; ^ but in all 
 cases, where such ship or vessel, or any other licensed ship or vessel, 
 shall have been once admeasured, it shall not be necessary to measure 
 such ship or vessel anew, for the purpose of obtaining another enrol- 
 
 1 See act of 1817, c. 31, § 4. « ggg ^^j ^f i864, c. 83.
 
 APPENDIX. 651 
 
 ment or license, except sucli ship or vessel shall have undergone some 
 alteration as to her burden, subsequent to the time of her former license. 
 
 Sec. 27. And be it further enacted, That it shall be lawful for any 
 officer of the revenue, to go on board of any ship or vessel, whether she 
 shall be within or without his district, and the same to inspect, search, 
 and examine, and if it shall appear, that any breach of the laws of the 
 United States has been committed, whereby such ship or vessel, or the 
 goods, wares, and merchandise on board, or any part thereof, is, or are 
 liable to forfeiture, to make seizure of the same. 
 
 Sec. 28. Aiid be it further enacted. That in every case where a for- 
 feiture of any ship or vessel, or of any goods, wares, or merchandise, 
 shall accrue, it shall be the duty of the collector, or other proper officer, 
 who shall give notice of the seizure of such ship or vessel, or of such 
 goods, wai'es, or merchandise, to insert in the same advei'tisement, the 
 name or names, and the place or places of residence, of the person or 
 persons, to whom any such ship or vessel, goods, wares, and merchandise 
 belonged, or wei'e consigned, at the time of such seizure, if the same shall 
 be known to him. 
 
 Sec. 29. And be it further enacted, That every collector, who shall 
 knowingly make any record of enrolment or license of any ship or vessel, 
 and every other officer, or person, appointed by, or under them, who 
 shall make any record, or grant any certificate, or other document what- 
 ever, contrary to the true intent and meaning of this act, or shall take 
 any other, or greater fees, than are by this act allowed, or shall receive, 
 for any service performed pursuant to this act, any reward or gratuity, 
 and every surveyor, or other person appointed to measure ships or ves- 
 sels, who shall wilfully deliver to any collector, or naval officer, a false 
 description of any ship or vessel, to be enrolled or licensed, in pursuance 
 of this act, shall, upon conviction of any such neglect or offence, forfeit 
 to the United States five hundred dollars, and be rendered incapable of 
 serving in any office of tnist or profit, under the United States. And if 
 any person, authorized and required by this act, in respect to his office, 
 to perform any act or thing required by this act, shall wilfully neg- 
 lect or refuse to do and perform the same, according to the true intent 
 and meaning of this act, such person, on being duly convicted thereof, 
 if not hereby subject to the penalty and disqualifications aforesaid, shall 
 forfeit and pay the sum of five hundred dollars for the first offence, and 
 a like sum for the second offence, and shall from thenceforward, be ren- 
 dered incapable of holding any office of trust or profit under the United 
 States. 
 
 Sec. 30. And be it further enacted, That if any person or persons shall 
 swear, or affirm to any of the matters, herein required to be verified,
 
 552 APPENDIX. 
 
 knowing the same to be fal>e, such person or persons shall suffer the like 
 pains and penalties, as shall be incurred, by persons committing wilful and 
 corrupt perjury. And if any person or persons shall forge, counterfeit, 
 erase, alter, or falsify any enrolment, license, certificate, permit, or other 
 document, mentioned or required in this act, to be granted by any officer 
 of the revenue, such person or persons, so offending, shall forfeit five hun- 
 dred dollars. 
 
 Sec. 31. A7id he it further enacted, That if any pei'son or persons shall 
 assault, resist, obstruct, or hinder any officer in the execution of this act, 
 or of any other act or law of the United States, herein mentioned, or of 
 any of the powers or authorities vested in him by this act, or any other 
 act or law, as aforesaid, all and every person and persons so offending, 
 shall, for every such offence, for -which no other penalty is particularly 
 provided, forfeit five hundred dollars. 
 
 Sec. 32. A7id be it further enacted, That if any licensed ship or vessel 
 shall be transferred, in whole or in part, to any person, who is not, at the 
 time of such transfer, a citizen of, and resident within, the United States, 
 or if any such ship or vessel shall be employed in any other trade than 
 that for which she is licensed, or shall be found with a forged or altered 
 license, or one granted for any other ship or vessel, every such ship or 
 vessel, with her tackle, apparel, and furniture, and the cargo found on 
 board her, shall be forfeited. 
 
 Sec. 33. Provided nevertheless, and be it further enacted, That in all 
 cases where the whole or any part of the lading, or cargo, on board any 
 ship or vessel, shall belong bond fide to any person or persons other than 
 the master, owner, or mariners of such ship or vessel, and upon which the 
 duties shall have been previously paid or secured, according to law, shall 
 be exempted from any forfeiture under this act, anything therein contained 
 to the contrary notwithstanding. 
 
 Sec. 34. And be it further enacted. That the fees and allowances for the 
 several duties and services, to be performed, in virtue of this act, shall be 
 as follows : that is to say : ^ 
 
 For admeasuring every ship or vessel, in order to the enrolment, or 
 licensing and recording the same, if of the burden of five tons, and less 
 than twenty tons, fifty cents ; if of twenty tons, and not exceeding seventy 
 tons, seventy-five cents ; if above seventy tons, and not exceeding one hun- 
 dred tons, one hundred cents ; if above one hundred tons, one hundred and 
 fifty cents : 
 
 For every certificate of enrolment, fifty cents : 
 
 For every indorsement on a certificate of enrolment, twenty cents : 
 
 1 See act of 1864, c. 83.
 
 APPENDIX. 553 
 
 For every license, and granting the same, including the bond, if not ex- 
 ceeding twenty tons, twenty-five cents ; if above twenty, and not more 
 than one hundred tons, fifty cents ; and if more than one hundi'ed tons, one 
 hundred cents : 
 
 For every indorsement on a license, twenty cents : 
 
 For certifying manifests, and granting a permit for a licensed vessel to 
 proceed from district to district, twenty-five cents, if less than fifty tons, 
 and if above fifty tons, fifty cents : 
 
 For receiving a certified manifest, and granting a permit, on the arrival 
 of such vessel, twenty-five cents, if less than fifty tons, and if above fifty 
 tons, fifty cents : 
 
 For certifying manifests, and granting a permit for a registered vessel 
 to proceed from district to district, one hundred and fifty cents : 
 
 For receiving a certified manifest, and granting a permit, on the ai'rival 
 of such registered vessel, one hundred and fifty cents : 
 
 For granting a permit for a vessel, not belonging to a citizen or citizens 
 of the United States, to proceed from district to district, and receiving the 
 manifest, two hundred cents : 
 
 For receiving a manifest, and granting a permit, to unload, for such last- 
 mentioned vessel, on her arrival in one district, from another district, two 
 hundred cents : 
 
 For granting a permit for a vessel carrying on the fishery, to trade at a 
 foreign port, twenty-five cents, and for the report and entry of any foreign 
 goods imported in such vessel, twenty-five cents. 
 
 And where a surveyor shall certify a manifest, or grant a permit, or re- 
 ceive a certified manifest and grant a permit, the fees arising therefrom 
 shall be received by him solely for his use. And all other fees arising, by 
 virtue of this act, shall be received, and accounted for, by the collector, or, 
 at his option, by the naval officer, where there is one, and where there is a 
 collector, naval officer, and surveyor, shall be equally divided, monthly, be- 
 tween the said officers ; and where there is no naval officer, two thirds to the 
 collector, and the other third to the surveyor ; and where there is only a col- 
 lector, he shall receive the whole amount thereof, and where there is more 
 than one surveyor in any district, each of them shall receive his proportion- 
 able part of such fees, as shall arise in the port, for which he is appointed : 
 Provided always, That in all cases, where the tonnage of any ship or vessel 
 shall be ascertained, by any person appointed for that purpose, such person 
 shall be paid a reasonable compensation therefor, out of the fees aforesaid, 
 before any distribution thereof, as aforesaid ; and every collector and naval 
 ofiicer, and every surveyor, who shall reside at a port where there is no col- 
 lector, shall cause to be affixed, and constantly kept, in some conspicuous 
 place of his office, a fair table of the rates of fees, demaudable by this act.
 
 554 APPENDIX. 
 
 Sec. 35. And be it further enacted, That all penalties and forfeitures, 
 which shall be incurred by virtue and force of this act, shall and may be 
 sued for, prosecuted and recovered, in like manner, as penalties and for- 
 feitures, incurred by virtue of the act, intituled " An act to regulate the col- 
 lection of the duties imposed by law on goods, wares, and merchandise im- 
 ported into the United States, and on the tonnage of ships or vessels," may 
 be sued for, prosecuted and recovered, and shall be appropriated in like man- 
 ner : Provided always, That if any officer, entitled to a part or share of any 
 such penalty or forfeiture, shall be necessary as a witness on the trial for such 
 penalty or forfeiture, such officer may be a witness upon the said trial ; but 
 in such case, he shall not receive, or be entitled to any part or share of the 
 said penalty or forfeiture, and the part or share to which he would otherwise 
 have been entitled, shall accrue to the United States. 
 
 Sec. 36. And he it further enacted, That this act shall commence, and 
 take effect, from and after the last day of May next, and thenceforth, the act, 
 intituled " An act for registering and clearing vessels, regulating the coast- 
 ing trade, and for other purposes," and also, the act, intituled " An act to ex- 
 plain and amend an act, intituled An act for registering and clearing vessels, 
 regulating the coasting trade, and for other purposes," shall be repealed, and 
 cease to operate, except as to the validity of the registers, records, enrolments, 
 and licenses, with the certificates and documents, which shall have been done 
 or granted, in pursuance of those acts, prior to the first day of June next, 
 which shall continue to be of the like force and effect, as if the said acts were 
 not repealed ; and except also, as to the prosecution, recovery, and distribu- 
 tion of, and for fines, penalties, and forfeitures, which may have been incurred 
 prior to the first day of June next, for which purpose likewise, the said acts 
 shall continue in force. 
 
 Sec. 37. And he it further enacted, That nothing in this act, shall be con- 
 strued to extend to any boat or lighter, not being masted, or if masted, and 
 not decked, employed in the harbor of any town or city. 
 
 ACT OF 1796, CHAPTER 36 (1 U. S. Stats, at Large, 477). 
 
 An Act for the Rdiefand Protection of American Seamen. 
 
 Section 1. Se it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the President of 
 the United States, by and with the advice and consent of the Senate, be, and 
 hereby is authorized to appoint two or more agents ; the one of whom shall 
 reside in tlie kingdom of Great Britain, and the others at such foreign ports, 
 as the President of the United States shall direct. That the duty of the said
 
 APPENDIX. 555 
 
 agents shall be, under the direction of the President of the United States, to 
 inquire into the situation of such American citizens or others, sailing, con- 
 formably to the law of nations, under the protection of the American flag, 
 as have been, or may hereafter be impressed or detained by any foreign 
 power, to endeavor, by all legal means, to obtain the release of such Ameri- 
 can citizens or others, as aforesaid; and to render an account of all impress- 
 ments and detentions whatever, from American vessels, to the executive of 
 the United States. 
 
 Sec. 2. A7id be it further enacted, That if it should be expedient to em- 
 ploy an additional agent or agents, for the purposes authorized by this law, 
 during the recess of the senate, the president alone be, and hereby is, au- 
 thorized to appoint such agent or agents. 
 
 Sec. 3. And be it further enacted, That the President of the United States 
 be, and he is hereby authorized to draw, annually, out of the treasury of 
 the United States, a sum not exceeding fifteen thousand dollars, not other- 
 wise appropriated, to be applied by him in such proportions as he shall direct, 
 to the payment of the compensation of the said agents, for their services, and 
 the incidental expenses attending the performance of the duties imposed on 
 them by this act. 
 
 Sec. 4. And be it further eiiacted, That the collector of every district 
 shall keep a book or books, in which, at the request of any seaman, being a 
 citizen of the United States of America, and producing proof of his citizen- 
 ship, authenticated in the manner hereina,fter directed, he shall enter the 
 name of such seaman, and shall deliver to him a certificate, in the following 
 form, that is to say: "I, A. B., collector of the district of D., do hereby 
 certify. That E. F., an American seaman, aged years, or there- 
 
 abouts, of the height of feet inches [describing the said 
 
 seaman as particularly as may be], has, this day, produced to me proof in 
 the act, intituled ' An act for the relief and protection of American sea- 
 men ' ; and, pursuant to the said act, I do hereby certify, that the said E. 
 F. is a citizen of the United States of America. In witness whereof, I 
 have hereunto set my hand and seal of office, this day of •" 
 
 And it shall be the duty of the collectors aforesaid to file and preserve the 
 proofs of citizenship produced, as aforesaid : And for each certificate de- 
 livered, as aforesaid, the said collectors shall be entitled to receive from the 
 seamen applying for the same the sum of twenty-five cents. 
 
 Sec. 5. And, in order that full and speedy information may be obtained 
 of the seizure or detention, by any foreign power, of any seamen em- 
 ployed on board any ship or vessel of the United States, Be it further en- 
 acted, That it shall, and hereby is declared to be the duty of the master of 
 every ship or vessel of the United States, any of the crew whereof shall 
 have been impressed or detained by any foreign power, at the first port
 
 556 APPENDIX. 
 
 at which such ship oi' vessel shall arrive, if such impressment or detention 
 happened on the high seas, or if the same happened within any foreign 
 port, then in the port in which the same happened, immediately to make a 
 pi'otest, stating the manner of such impressment or detention, by whom 
 made, together with the name and place of residence of the person im- 
 pressed or detained ; distinguishing also, whether he was an American 
 citizen, and if not, to what nation he belonged. And it shall be the duty 
 of such master to transmit by post, or otherwise, every such protest made 
 in a foreign country to the nearest consul or agent, or to the minister of the 
 United States resident in such country, if any such there be ; preserving a 
 duplicate of such protest, to be by him sent, immediately after his arrival 
 within the United States, to the secretary of state, together with informa- 
 tion to whom the original protest was transmitted : And in case such pro- 
 test shall be made within the United States, or in any foreign country, in 
 which no consul, agent, or minister of the United States resides, the same 
 shall, as soon thereafter as practicable, be transmitted by such master, by 
 post, or otherwise, to the secretary of state. 
 
 Sec. 6. And be it further enacted, That a copy of this law be transmitted 
 by the secretary of state to each of the ministers and consuls of the United 
 States resident in foreign countries, and by the secretary of the treasury to 
 the several collectors of the districts of the United States, whose duty it is 
 hereby declared to be, from time to time, to make known the provisions of 
 this law to all masters of ships and vessels of the United States entering or 
 clearing at their several offices. And the master of every such ship or 
 vessel shall,before he is admitted to an entry by any such collector, be re- 
 quired to declare on oath whether any of the crew of the ship or vessel 
 under his command have been impressed or detained in the course of his 
 voyage, and how far he has complied with the directions of this act ; and 
 every such master as shall wilfully neglect or refuse to make the declara- 
 tions herein required, or to perform the duties enjoined by this act, shall 
 forfeit and pay the sum of one hundred dollars. And it is hereby declared 
 to be the duty of every such collector to prosecute for any forfeiture that 
 may be incurred under this act. 
 
 Sec. 7. And be it further enacted, That the collector of every port of 
 entry in the United States shall send a list of the seamen registered under 
 this act, once every three months, to the secretary of state, together with 
 an account of such impressments or detentions as shall appear, by the pi'O- 
 tests of the masters, to have taken place. 
 
 Sec. 8. And be it further enacted, That the first, second, and third sec- 
 tions of this act shall be in force for one year, and from thence to the end 
 of. the next session of Congress thereafter, and no longer.
 
 APPENDIX. 557 
 
 ACT OF 1796, CHAPTER 45 (1 U. S. Stats, at Large, 489). 
 A71 Act providing Passpoi'ts for the Ships and Vessels of the United States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That it shall be the 
 duty of the secretary of state to prepare a form, which, when approved by 
 the president, shall be deemed the form of a passport for ships and vessels 
 of the United States. 
 
 Sec. 2. And be it further enacted, That every ship and vessel of the 
 United States, going to any foreign country, shall, before she departs from 
 the United States, at the request of the master, be furnished by the collec- 
 tor for the district where such ship or vessel may be with a passport of the 
 form prescribed and established, pursuant to the foregoing section ; for which 
 passport, the master of such ship or vessel shall pay to the said collector, 
 ten dollars, to be accounted for by him ; and in order to be entitled to such 
 passport, the master of every such ship or vessel shall be bound with suf- 
 ficient sureties, to the treasurer of the United States, in the penalty of two 
 thousand dollars, conditioned, that the said passport shall not be applied to 
 the use or protection of any other ship or vessel, than the one described in 
 the same ; and that, in case of the loss or sale of any ship or vessel having 
 such passport, the same shall, within three months, be delivered up to the 
 collector from whom it was received, if the loss or sale take place within 
 the United States ; or within six months, if the same shall happen at any 
 place nearer than the Cape of Good Hope ; and within eighteen months, 
 if at a more distant place. 
 
 Sec. o. And be it further enacted, That there shall be paid on every 
 ship and vessel of the United States sailing or trading to any foi'eign coun- 
 try, other than some port or place in America, for each and every voyage, 
 the sum of four dollars, to be received and accounted for, by the collector, 
 at the time of clearing outward, if such vessel be bound direct to such 
 foreign country, from any port of the United States, or at the time of 
 entry in the United States, if such ship or vessel shall have sailed to such 
 foreign country, from any port or place in America, other than of the Unit- 
 ed States. 
 
 Sec. 4. And be it further enacted. That if any ship or vessel of the 
 United States, shall depart therefrom, after the first day of September next, 
 and shall be bound to any foreign country, other than to some port or place 
 in America, without such passport, the master of such ship or vessel shall 
 foi'feit and pay the sum of two hvindred dollars for every such offence.
 
 558 APPENDIX. 
 
 ""ACT OF 1797, CHAPTEE 7 (1 U. S. Stats, at Large, 498). 
 
 An Act, in addition to an Act, intituled " An Act concerning the registering and recordinq of 
 Ships or Vessels," and to an Act, intituled " An Act for enrolling and licensing Ships and 
 Vessels employed in the Coasting Trade and Fisheries, and for regulating the same." 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress osse??«&/e(i, That whenever it shall appear, 
 by satisfactory proof, to the secretary of the treasury, that any ship or ves- 
 sel hath been sold and transferred by process of law ; and that the register, 
 certificate of enrolment, or license, as the case may be, of such ship or 
 vessel, is retained by the former owners, it shall be lawful for the said 
 secretary, to order and direct the collector of the district to which such 
 ship or vessel may belong, to grant a new register, certificate of enrolment, 
 or license, as the case may be, on the owners, under such sale, complying 
 with such terms and conditions, as are, by law, required for granting of 
 such papers ; excepting only the delivering up of the former certificate of 
 registry, enrolment, or license, as the case may be : Provided nevertheless, 
 that nothing in this act contained, shall be construed to remove the liability 
 of any person or persons to any penalty for not surrendering up the papers, 
 belonging to any ship or vessel, on a transfer or sale of the same. 
 
 ACT OF 1797, CHAPTER 5 (1 U. S. Stats, at Large, 523). 
 
 An Act in addition to an Act, intituled " An Act concerning the registering and recording of 
 
 Ships and Vessels." 
 
 Be it enacted by the Senate and House of Represeyitatives of the United 
 States of America in Congress assembled, That no ship or vessel which has 
 been, or shall be registered, pursuant to any law of the United States, and 
 which hereafter shall be seized, or captured and condemned, under the 
 authority of any foreign power, or that shall by sale become the property 
 of a foreigner or foreigners, shall, after the passing of this act, be entitled 
 to, or capable of receiving, a new register, notwithstanding such ship or 
 vessel should afterwards become American property ; but that all such 
 ships and vessels shall be taken and considered, to all intents and purposes, 
 as foreign vessels : Provided, That nothing in this act contained, shall 
 extend to, or be construed to aifect the person or persons owning any ship 
 or vessel, at the time of the seizure, or capture of the same, or shall pre- 
 vent such owner, in case he regain a property in such ship or vessel, so 
 condemned, by purchase or otherwise, from claiming and receiving a new 
 register for the same, as he might or could have done, if this act had not 
 been passed.
 
 APPENDIX. 659 
 
 ACT OF 1798, CHAPTER 77 (1 U. S. Stats, at Large, 605). 
 An Act for the relief of sick and disabled Seamen, i 
 
 Section 1. Be it enacted hythe Senate and House of Representatives of 
 the United States of America in Congress assembled, That from and after 
 the first day of September next, the master or owner of every ship or ves- 
 sel of the United States, arriving from a foreign port into any port of the 
 United States, shall, before such sliip or vessel shall be admitted to an 
 entry, render to the collector a true account of the number of seamen, that 
 shall have been employed on board such vessel since she was last entered 
 at any port in the United States, — and shall pay to the said collector, at 
 the rate of twenty cents per month for every seaman so employed ; which 
 sum he is hereby authorized to retain out of the wages of such seamen. 
 
 Sec. 2. And be it further enacted, That from and after the first day of 
 September next, no collector shall grant to any ship or vessel whose en- 
 rolment or license for carrying on the coasting trade has expired, a new 
 enrolment or license before the master of such ship or vessel shall first 
 render a true account to the collector, of the number of seamen, and the 
 time they have severally been employed on board such ship or vessel, 
 during the continuance of the license which has so expired, and pay to 
 such collector twenty cents per month for every month such seamen have 
 been severally employed, as aforesaid ; which sum the said master is here- 
 by authorized to retain out of the wages of such seamen. And if any 
 such master shall render a false account of the number of men, and the 
 length of time they have severally been employed, as is herein required, 
 he shall forfeit and pay one hundred dollars. 
 
 Sec. 3. And be it further enacted, That it shall be the duty of the sev- 
 eral collectors to make a quarterly return of the sums collected by them, 
 respectively, by virtue of this act, to the secretary of the treasury ; and 
 the President of the United States is hereby authorized, out of the same, 
 to provide for the temporary relief and maintenance of sick or disabled 
 seamen, in the hospitals or other proper institutions now established in 
 the several ports of the United States, or, in ports where no such institu- 
 tions exist, then in such other manner as he shall direct : Provided, 
 that the moneys collected in any one district, shall be expended within the 
 same. 
 
 Sec. 4. Aiid be it further enacted, That if any surplus shall remain of 
 the moneys to be collected by virtue of this act, after defraying the expense 
 
 ' See Act of 1796, c. 36; Act of 1799, c 36 ; Act of 1802, c. 51 ; Act of 1803, 
 c. 9; Act of 1811, c. 26, 28; Act of 1843, c. 49; Act of 1846, c. 50; Act of 
 1864, c. 70.
 
 560 APPENDIX. 
 
 of such temporary relief and support, that the same, together with such 
 private donations as may be made for that purpose (which the president 
 is hereby authorized to receive) shall be invested in the stock of the 
 United States, under the direction of the president ; and when, in his 
 opinion, a sufficient fund shall be accumulated, he is hereby authorized to 
 purchase or recei^^e cessions or donations of ground or buildings, in the 
 name of the United States, and to cause buildings, when necessary, to be 
 erected as hospitals for the accommodation of sick and disabled seamen. 
 
 Sec 5. And be it further enacted, That the President of the United 
 States be, and he is hereby authorized to nominate and appoint, in such 
 ports of the United States, as he may think proper, one or more persons, 
 to be called directors of the marine hospital of the United States, whose 
 duty it shall be to direct the expenditure of the fund assigned for their 
 respective ports, according to the third section of this act ; to provide for 
 the accommodation of sick and disabled seamen, under such general in- 
 structions as shall be given by the President of the United States, for 
 that purpose, and also subject to the like general instructions, to direct and 
 govern such hospitals as the president may direct to be built in the respec- 
 tive ports : and that the said directors shall hold their offices during the 
 pleasure of the president, who is authorized to fill up all vacancies that 
 may be occasioned by the death or removal of any of the persons so to be 
 appointed. And the said directors shall render an account of the moneys 
 received and expended by them, once in every quarter of a year, to the 
 secretary of the treasury, or such other person as the president shall di- 
 rect ; but no other allowance or compensation shall be made to the said 
 directors, except the payment of such expenses as they may incur in the 
 actual discharge of the duties required by this act. 
 
 : ACT OF 1799, CHAPTER 36 (1 U. S. Stats, at Large, 729). 
 
 An Act in addition to " An Act for the relief of sick and disabled Seamen." 
 
 Section 1. -Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the President 
 of the United States shall be, and he hereby is authorized to direct the 
 expenditure of any moneys which have been or shall be collected by virtue 
 of an act, intitled '• An Act for the relief of sick and disabled seamen," 
 to be made within the State wherein the same shall have been collected, 
 or within the State next adjoining thereto, excepting what may be col- 
 lected in the States of New Hampshire, Massachusetts, Rhode Island, and 
 Connecticut ; anything in the said act contained to the contrary thereof, 
 notwithstandinff.
 
 APPENDIX. 561 
 
 Sec. 2. And be if further enacted, That the secretary of the navy shall 
 be, and he hereby is authorized and directed to deduct, after the first day 
 of September next, from the pay thereafter to become due, of the officers, 
 seamen, and marines of the navy of the United States, at the rate of 
 twenty cents per month, for every such ofEcer, seamen, and marine, and 
 to pay the same quarter annually to the secretary of the treasury, to be 
 applied to the same purposes, as the money collected by virtue of the 
 above-mentioned act is appropriated. 
 
 Sec. 3. And he it further enacted, That the officers, seamen, and ma- 
 rines of the navy of the United States, shall be entitled to receive the 
 same benefits and advantages, as by the act above mentioned are provided 
 for the relief of the sick and disabled seamen of the merchant vessels of 
 the United States. 
 
 ACT OF 1802, CHAPTER 51 (2 U. S. Stats, at Large, 192). 
 
 An Act to amend an Act intituled " An Act for the Relief of sick and disabled Seamen," and 
 
 for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the moneys 
 heretofore collected in pursuance of the several acts " for the relief of 
 sick and disabled seamen," and at present unexpended, together with the 
 moneys hereafter to be collected by authority of the before-mentioned 
 acts, shall constitute a general fund, which the President of the United 
 States shall use and employ as circumstances shall require, for the 
 benefit and convenience of sick and disabled American seamen : Pro- 
 vided, that the sum of fifteen thousand dollars be, and the same is hereby 
 appropriated for the erection of an hospital in the district of Massachu- 
 setts. 
 
 Sec. 2. And be it further enacted. That it shall be lawful for the Presi- 
 dent of the United States to cause such measures to be taken as, in his 
 opinion, may be expedient for providing convenient accommodations, medi- 
 cal assistance, necessary attendance, and supplies for the relief of sick or 
 disabled seamen of the United States, who may be at or near the port of 
 New Orleans, in case the same can be done with the assent of the govern- 
 ment having jurisdiction over the port ; and for this purpose, to establish 
 such regulations, and to authorize the employment of such persons as he 
 may judge proper ; and that for defraying the expense thereof, a sum not 
 exceeding three thousand dollars be paid out of any moneys arising from 
 the said fund not otherwise appropriated. 
 
 Sec. 3. And be it further enacted, That fropi and after the thirtieth day 
 
 VOL. II. 36
 
 §62 APPENDIX. 
 
 of June next, the master of every boat, raft, or flat, belonging to any citi- 
 zen of the United States, which shall go down the Mississippi with inten- 
 tion to proceed to New Orleans, shall, on his arrival at Fort Adams, render 
 to the collector or naval officer thereof, a true account of the number of 
 persons employed on board such boat, raft, or flat, and the time that each 
 person has been so employed, and shall pay to the said collector or naval 
 officer at the rate of twenty cents per month, for every person so employed, 
 which sum, he is hereby authorized to retain out of the wages of such per- 
 son : and the said collector or naval officer shall not give a clearance for 
 such boat, raft, or flat, to proceed on her voyage to New Orleans, until an 
 account be rendered to him of the number of persons employed on board 
 such boat, raft, or flat, and the money paid to him by the master or owner 
 thereof: and if any such master shall render a false account of the number 
 of persons, and the length of time they have severally been employed, as 
 is herein required, he shall forfeit and pay fifty dollars, which shall be ap- 
 plied to, and shall make a part of, the said general fund for the purposes of 
 this act : Provided, that all persons employed in navigating any such boat, 
 raft, or flat, shall be considered as seamen of the United States, and entitled 
 to the relief extended by law to sick and disabled seamen. 
 
 Sec. 4. And be it further enacted, That the President of the United 
 States be, and he is hereby authorized to nominate and appoint for the port 
 of New Orleans, a fit person to be director of the marine hospital of the 
 United States, whose duties shall be in all instances the same as the direc- 
 tors of the marine hospitals of the United States, as directed and required 
 by the act, intituled " An act for the relief of sick and disabled seamen." 
 [Act of July 16, 1798, chap. 76.] 
 
 Sec. 5. And be it further enacted, That each and every director of the 
 marine hospitals within the United States shall, if it can with convenience 
 be done, admit into the hospital of which he is director, sick foreign sea- 
 men, on the application of the master or commander of any foreign vessel 
 to which such sick seamen may belong ; and each seaman so admitted shall 
 be subject to a charge of seventy-five cents per day for each day he may 
 remain in the hospital, the payment of which the master or commander of 
 such foreign vessel shall make to the collector of the district in which such 
 hospital is situated : and the collector shall not grant a clearance to any 
 foreign vessel, until the money due from such master or commander, in 
 manner and form aforesaid, shall be paid ; and the director of each hospi- 
 tal is hereby directed, under the penalty of fifty dollars, to make out the 
 accounts against each foreign seaman that may be placed in the hospital, 
 under his direction, and render the same to the collector. 
 
 Sec. C. And be it further enacted. That the collectors shall pay the 
 money collected, by virtue of this and the act to which this is an amend-
 
 APPENDIX. 563 
 
 ment, into the treasury of the United States, and be accountable therefor, 
 and receive the same commission thereon as for other money by them 
 collected. 
 
 Sec. 7. And be it further enacted, That each and every director of the 
 marine hospitals shall be accountable at the treasury of the United States 
 for the money by them received in the same manner as other receivers of 
 public money, and for the sums by them expended shall be allowed a com- 
 mission at the rate of one per cent. 
 
 ACT OF 1803, CHAPTEK 9 (2 U. S. Stats, at Large, 203). 
 
 An Act supplementary to the " Act concerning Consuls and Vice- Consuls, and for the further 
 Protection of American SeamenA 
 
 Section 1. J3e it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That before a clear- 
 ance be granted to any vessel bound on a foreign voyage, the master 
 thereof shall deliver to the collector of the customs, a list, containing the 
 names, places of birth and residence, and a description of the persons who 
 compose his ship's company, to which list the oath or affirmation of the 
 captain shall be annexed, that the said list contains the names of his crew, 
 together with the places of their birth and residence, as far as he can 
 ascertain them, and the said collector shall deliver him a certified copy 
 thereof, for which the collector shall be entitled to receive the sum of 
 twenty-five cents ; and the said master shall moreover enter into bond with 
 sufficient security, in the sum of four hundred dollars, that he shall exhibit 
 the aforesaid certified copy of the list to the first boarding officer, at the 
 first port in the United States, at which he shall arrive on his return 
 thereto, and then and there also produce the persons named therein, to the 
 said boarding officer, whose duty it shall be to examine the men with such 
 list, and to report the same to the collector, and it shall be the duty of the 
 collector at the said port of arrival (where the same is different from the 
 port from which the vessel originally sailed), to transmit a copy of the list 
 so reported to him, to the collector of the port from which said vessel 
 originally sailed : Provided, that the said bond shall not be forfeited on 
 account of the said master not producing to the first boarding officer, as 
 aforesaid, any of the persons contained in the said list, who may be dis- 
 charged in a foreign country with the consent of the consul, vice-consul, 
 commercial agent, or vice-commercial agent there residing, signified in 
 writing, under his hand and official seal, to be produced to the collector 
 with the other persons composing the crew as aforesaid ; nor on account 
 
 1 See ante, p. 559, n. 1 ; Act of 1840, c. 48; Act of 1856, c. 127, §§ 25-27.
 
 664 APPENDIX. 
 
 of any such person dying or absconding, or being forcibly impressed into 
 other service, of which satisfactory proof shall be then also exhibited to 
 the collector. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of every 
 master or commander of a ship or vessel, belonging to citizens of the 
 United States, who shall sail from any port of the United States, after 
 the first day of May next, on his arrival at a foreign port, to deposit his 
 register, sea letter, and Mediterranean passport with the consul, vice-con- 
 sul, commercial agent, or vice-commercial agent (if any there be at such 
 port) ; that in case of refusal or neglect of the said master or commander 
 to deposit the said papers as aforesaid, he shall forfeit and pay five hun- 
 dred dollars, to be recovered by the said consul, vice-consul, commercial 
 agent, or vice-commercial agent, in his own name, for the benefit of the 
 United States, in any court of competent jurisdiction ; and it shall be the 
 duty of such consul, vice-consul, commercial agent, or vice-commercial 
 agent, on such master or commander producing to him a clearance from 
 the proper officer of the port, where his ship or vessel may be, to deliver 
 to the said master or commander all of his said papers ; Provided, such 
 master or commander shall have complied with the provisions contained in 
 this act, and those of the act to which this is a supplement. 
 
 Sec. 3. And he it further enacted, That whenever a ship or vessel be- 
 longing to a citizen of the United States, shall be sold in a foreign country, 
 and her company discharged, or when a seaman or mariner, a citizen of 
 the United States, shall, with his own consent, be discharged in a foreign 
 country, it shall be the duty of the master or commander to produce to the 
 consul, vice consul, commercial agent, or vice-commercial agent, the list 
 of his ship's company, certified as aforesaid ; and to pay to such consul, 
 vice-consul, commercial agent, or vice-commercial agent, for every seaman 
 or mariner so discharged, being designated on such list as a citizen of the 
 United States, three months' pay, over and above the wages which may 
 then be due to such mariner or seaman, two thirds thereof to be paid by 
 such consul, or commercial agent, to each seaman or mariner so discharged, 
 upon his engagement on board of any vessel to return to the United States, 
 and the other remaining third to be retained for the purpose of creating a 
 fund for the payment of the passages of seamen or mariners, citizens of 
 the United States, who may be desirous of returning to the United States, 
 and for the maintenance of American seamen who may be destitute, and 
 may be in such foreign port, and the several sums retained for such fund 
 shall be accounted for with the treasury every six months by the pei'sons 
 receiving the same. 
 
 Sec. 4. And be it further enacted, That it shall be the duty of the con- 
 suls, vice-consuls, commercial agents, vice-commercial agents of the United
 
 APPENDIX. 565 
 
 States, from time to time, to provide for the mariners and seamen of the 
 United States, who may be found destitute within their districts respec- 
 tively, sufficient subsistence and passages to some port in the United States, 
 in the most reasonable manner, at the expense of the United States, sub- 
 ject to such instructions as the secretary of state shall give ; and that all 
 masters and commanders of vessels belonging to citizens of the United 
 States, and bound to some port of the same, are hereby required and 
 enjoined to take such mariners or seamen on board of their ships or 
 vessels, at the request of the said consuls, vice-consuls, commercial agents, 
 or vice-commercial agents respectively, and to transport them to the port 
 in the United States to which such ships or vessels may be bound, on such 
 terms, not exceeding ten dollars for each person, as may be agreed between 
 the said master and consul or commercial agent. And the said mariners 
 or seamen shall, if able, be bound to do duty on board such ships or vessels 
 according to their several abilities : Provided, that no master or captain of 
 any ship or vessel shall be obliged to take a greater number than two men 
 to every one hundred tons burden of the said ship or vessel, on any one 
 voyage ; and if any such captain or master shall refuse the same on the 
 request or order of the consul, vice-consul, commercial agent, or vice-com- 
 mercial agent, such captain or master shall forfeit and pay the sum of 
 one hundred dollars for each mariner or seaman so refused, to be recovered 
 for the benefit of the United States in any court of competent jurisdiction. 
 And the certificate of any such consul or commercial agent, given under 
 Ms hand and official seal, shall be prima facie evidence of such refusal 
 in any court of law having jurisdiction for the recovery of the penalty 
 aforesaid. 
 
 Sec. 5. And he it further enacted, That the seventh and eighth sections 
 of the act intituled " An act concerning consuls and vice-consuls," (1792, 
 c. 24,) be and the same are hereby repealed ; and that the secretary of 
 state be authorized to reimburse the consuls, vice-consuls, commercial 
 agents, or vice-commercial agents, such reasonable sums as they may 
 heretofore have advanced for the relief of seamen, though the same should 
 exceed the rate of twelve cents a man per diem. 
 
 Sec. 6. And he it further enacted, That it shall and may be lawful for 
 every consul, vice-consul, commercial agent, and vice-commercial agent of 
 the United States, to take and receive for every certificate of discharge of 
 any seaman or mariner in a foreign poi't fifty cents ; and for commission 
 on paying and receiving the amount of wages payable on the discharge of 
 seamen in foreign ports, two and a half per centum. 
 
 Sec. 7. And he it further enacted. That if any consul, vice-consul, com- 
 mercial agent, or vice-commercial agent, shall falsely and knowingly cer- 
 tify that property belonging to foreigners is property belonging to citizens
 
 666 APPENDIX. 
 
 of the United States, he shall, on conviction thereof, in any court of com- 
 petent jurisdiction, forfeit and pay a fine not exceeding ten thousand dol- 
 lars, at the discretion of the court, and be imprisoned for any term not 
 exceeding three years. 
 
 Sec. 8. And be it further enacted, That if any consul, vice-consul, com- 
 mercial agent, or vice-commercial agent, shall grant a passport or other 
 paper certifying that any alien, knowing him or her to be such, is a citi- 
 zen of the United States, he shall, on conviction thereof, in any court of 
 competent jurisdiction, forfeit and pay a fine not exceeding one thousand 
 dollars. 
 
 ACT OF 1803, CHAPTER 16 (2 U. S. Stats, at Large, 208). 
 
 An Act supplementary to the Act, intituled " An Act providing Passports for the Ships and 
 Vessels of the United States." 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That every unregis- 
 tered ship or vessel owned by a citizen or citizens of the United States, 
 and sailing with a sea-letter, going to any foreign country, shall, before 
 she departs from the United States, at the request of the master, be fur- 
 nished by the collector of the district where such vessel may be, with a 
 passport of the form prescribed and established by the act to which this is 
 a supplement, for which the master shall pay to the collector ten dollars, 
 and be subject to the rules and conditions prescribed in the said act, for 
 ships and vessels of the United States. 
 
 Sec. 2. And be it further enacted. That there shall be paid on every 
 such unregistered ship or vessel, sailing or trading to any foreign country, 
 other than some port or place in America, for each and every voyage, the 
 same sum at the time of clearing outwards, to be received and accounted for 
 in the same manner as is by said act required in cases of ships and vessels 
 of the United States. 
 
 ACT OF 1803, CHAPTER 18 (2 U. S. Stats, at Large, 209). 
 
 An Act in addition to the Act intitided " An Act concerning the registering and recording of 
 Ships and Vessels of the United States" And to the Act, intituled " An Act to regulate the 
 Collection of Duties on Imports and Tonnage. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That if any per- 
 son shall knowingly make, utter, or publish any false sea-letter, Mediter- 
 ranean passport, or certificate of registry, or shall knowingly avail himself 
 of any such Mediterranean passport, sea-letter, or certificate of registry,
 
 APPENDIX. 567 
 
 he shall forfeit and pay a sum not exceeding five thousand dollars, to be re- 
 covered by action of debt, in the name of the United States, in any court of 
 competent jurisdiction ; and if an officer of the United States, he shall for- 
 ever thereafter be rendered incapable of holding any office of trust or profit, 
 under the authority of the United States. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of the comp- 
 troller of the treasury, to cause to be provided, blank certificates of registry, 
 with such water and other secret marks as he may direct, which marks shall 
 be made known only to the collectors and their deputies, and to the consuls 
 or commercial agents of the United States ; and from and after the thirty- 
 first day of December next, no certificate of registry shall be issued, except 
 such as shall have been provided and marked as aforesaid ; and the ships or 
 vessels of the United States, which shall have been duly registered as such, 
 shall be entitled to new certificates of registry (gratis) in exchange for their 
 old certificates of registry : and it shall be the duty of the respective collec- 
 tors, on the departure of any such ship or vessel, after the said thirty-first 
 day of December, from the district to which such ship or vessel shall belong, 
 to issue a new certificate accordingly, and to retain and deface the former 
 certificate. 
 
 Sec. d.And he it further enacted, That when any ship or vessel, which 
 has been, or which shall be registered pursuant to any law of the United 
 States, shall, whilst such ship or vessel is without the limits of the United 
 States, be sold or transferred in whole or in part to a citizen or citizens of 
 the said States, such ship or vessel, on her first arrival in the United States 
 thereafter, shall be entitled to all the privileges and benefits of a ship or 
 vessel of the United States : Provided, that all the requisites of law, in order 
 to the registry of ships or vessels, shall be complied with, and a new certificate 
 of registry obtained for such ship or vessel, within three days from the time 
 at which the master, or other person having the charge or command of such 
 ship or vessel, is required to make his final report upon her first arrival after- 
 wards, as aforesaid, agreeably to the thirtieth section of the act, passed on the 
 second day of March, one thousand seven hundred and ninety-nine, intituled 
 "An act to regulate the collection of duties on imports and tonnage." And 
 it shall be lawful to pay to the collector of the district within which such ship 
 or vessel may arrive as aforesaid, the duties imposed by law on the tonnage 
 of such ship or vessel, at any time within three days from the time at which 
 the master or other person having the charge or command of such ship or 
 vessel, is required to make his final report as aforesaid, anything to the con- 
 trary in any former law notwithstanding : Provided always, that nothing 
 herein contained shall be construed to repeal, or in any wise change the pro- 
 visions, restrictions, or limitations of any former act or acts, excepting so far 
 as the same shall be repugnant to the provisions of this act.
 
 568 APPENDIX. 
 
 Sec. 4. And be it further enacted, That the power vested in the secretary 
 of the treasury, to remove disabilities incurred under the act to which this is 
 a supplement, and under the act, intituled " An act for enrolling and licensing 
 ships or vessels, to be employed in the coasting trade and fisheries, and for 
 regulating the same," shall extend to the remission of any foreign duties, 
 which shall have been or shall be incurred by reason of such disabilities. 
 
 ACT OF 1804, CHAPTER 40 (2 U. S. Stats, at Large, 290). 
 
 An Act in addition to the Act intituled "An Act for the Punishment of certain Crimes against 
 
 the United States." 
 
 Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That any person, not being 
 an owner, who shall, on the high seas, wilfully and corruptly cast away, burn, 
 or otherwise destroy any ship or other vessel unto which he belongeth, being 
 the property of any citizen or citizens of the United States, or procure the 
 same to be done, and being thereof lawfully convicted, shall suffer death. 
 
 Sec. 2. Be it further enacted. That if any person shall, on the high seas, 
 wilfully and corruptly cast away, burn, or otherwise destroy any ship or 
 vessel of which he is owner, in part or in whole, or in any wise direct or pro- 
 cure the same to be done, with intent or design to prejudice any person or 
 persons that hath underwritten, or shall underwrite any policy or policies of 
 insurance thereon, or if any merchant or merchants that shall load goods 
 thereon, or of any other owner or owners of such ship or vessel, the person 
 or persons offending therein being thereof lawfully convicted, shall be deemed 
 and adjudged guilty of felony, and shall suffer death. 
 
 ACT OF 1804, CHAPTER 52 (2 U. S. Stats, at Large, 296). 
 
 An Act to amend the Act intituled " An Act concerning the registering and recording of Slaps 
 
 and Vessels." 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That no ship or vessel 
 shall be entitled to be registered as a ship or vessel of the United States, or, 
 if registered, to the benefits thereof, if owned in whole or in part by any per- 
 son natui-alized in the United States, and residing for more than one year in 
 the country from which he originated, or for more than two years in any 
 foreign country, unless such person be in the capacity of a consul or other 
 public agent of the United States: Provided, that nothing herein contained 
 shall be construed to prevent the registering anew of any ship or vessel be-
 
 APPENDIX. 669 
 
 fore registered, in case of a bona fide sale thereof to any citizen or citizens 
 resident in the United States : And provided also, that satisfactory proof of 
 the citizenship of the person on whose account a vessel may be purchased, 
 shall be first exhibited to the collector, before a new register shall be granted 
 for such vessel. 
 
 Sec. 2. And he it further enacted, That the proviso in the act, intituled 
 " An act in addition to an act, intituled An act concerning the registering 
 and recording of ships and vessels," passed the twenty-seventh of June, 
 one thousand seven hundred and ninety-seven, shall be taken and deemed 
 to extend to the executors or administrators of the owner or owners of 
 vessels, in the said proviso described. 
 
 ACT OF 1805, CHAPTER 28 (2 U. S. Stats, at Large, 330). 
 
 An Act to amend the Act intituled " An Act for the Government and Regulation of Seamen 
 in the Merchants' Service." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That all the provisions, regula- 
 tions, and penalties which are contained in the eighth session of the act, 
 intituled " An act for the government and regulation of seamen in the 
 merchants' service," so far as relates to a chest of medicines to be provided 
 for vessels of one hundred and fifty tons burden and upwards, shall be ex- 
 tended to all merchant vessels of the burden of seventy-five tons, or 
 upwards, navigated with six persons or more, in the whole, and bound 
 from the United States to any port or ports in the West Indies. 
 
 ACT OF 1810, CHAPTER 19 (2 U. S. Stats, at Large, 568). 
 
 An Act to prevent the issuing of Sea Letters except to certain Vessels. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That from and after the thirtieth 
 of June next, no sea letter or other document certifying or proving any 
 ship or vessel to be the property of a citizen or citizens of the United 
 States, shall be issued except to ships or vessels duly registered, or enrolled 
 and licensed as ships or vessels of the United States, or to vessels which 
 at that time shall be wholly owned by citizens of the United States, and 
 furnished with or entitled to sea letters or other custom-house documents, 
 any law or laws heretofore passed to the contrary notwithstanding : 
 Provided nevertheless, that no sea letter shall be issued to any vessel which 
 shall not at this time be furnished or entitled to a sea letter, unless such 
 vessel shall return to some port or place in the United States or territories
 
 670 APPENDIX. 
 
 thereof on or before the said thirtieth day of June next : Provided 
 nevertheless, that no sea letter or other document, certifying or proving any 
 ship or vessel to be the property of a citizen or citizens of the United 
 States, shall be issued to any vessel now abroad, which shall not at this 
 time be furnished or entitled to a sea letter, unless such vessel shall arrive 
 at some port or place in the United States or territories thereof, on or 
 before the said thirtieth day of June next; and provided that nothing herein 
 contained shall be construed to operate against any such vessel or vessels 
 that now are, or may be, prior to the said thirtieth of June, detained abroad 
 by the authority of any foreign power. 
 
 ACT OF 1811, CHAPTER 26 (2 U. S. Stats, at Large, 650). 
 
 An Act establishing Navy Hospitals. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the money here- 
 after collected by virtue of the act, intituled " An act in addition to an act 
 for the relief of sick and disabled seamen," shall be paid to the secretary 
 of the navy, the secretary of the treasury, and the secretary of war, for the 
 time being, who are hereby appointed a board of commissioners, by the 
 name and style of commissioners of navy hospitals, which, together with the 
 sum of fifty thousand dollars hereby appropriated out of the unexpended 
 balance of the marine hospital fund, to be paid to the commissioners afore- 
 said, shall constitute a fund for navy hospitals. 
 
 Sec. 2. And be it further enacted, That all fines imposed on navy offi- 
 cers, seamen, and marines, shall be paid to the commissioners of navy 
 hospitals. 
 
 Sec. 3. And he it further enacted, That the commissioners of navy 
 hospitals be and they are hereby authorized and required to procure at a 
 suitable place or places proper sites for navy hospitals, and if the necessary 
 buildings are not procured with the site, to cause such to be erected, 
 having due regard to economy, and giving preference to such plans as with 
 most convenience and least cost will admit of subsequent additions, as the 
 funds will permit and circumstances require ; and the commissioners are 
 required at one of the establishments, to provide a permanent asylum for 
 disabled and decrepid navy officers, seamen, and marines. 
 
 Sec. 4. And he it further enacted. That the secretary of the navy be 
 authorized and required to prepare the necessary rules and regulations for 
 the government of the institution, and report the same to the next session 
 of Congress. 
 
 Sec. 5. And he it further enacted, That when any navy officer, seaman,
 
 APPENDIX. 671 
 
 or marine, shall be admitted into a navy hospital, that the institution shall 
 be allowed one ration per day during his continuance therein, to be deducted 
 from the account of the United States with such officer, seaman, or marine ; 
 and in like manner, when any officer, seaman, or marine, entitled to a pen- 
 sion, shall be admitted into a navy hospital, such pension during his contin- 
 uance therein shall be paid to the commissioners of the navy hospitals, and 
 deducted from the account of such pensioner. 
 
 ACT OF 1811, CHAPTER 28 (2 U. S. Stats, at Large, 651). 
 
 An Act in addition to the Act, intitided " An Act supplementary to the Act concerning Con- 
 suls and Vice- Consuls," and for the farther Protection of American Seamen. 
 
 Be it enacted ly the Senate and House of Representatives of the United 
 States of America in Congress assembled, That in all cases where distressed 
 mariners and seamen of the United States have been transported from for- 
 eign ports, where there was no consul, vice-consul, commercial agent, or 
 vice-commex'cial agent of the United States, to ports of the United States, 
 and in all cases where they shall hereafter be so transported, there shall 
 be allowed to the master or owner of each vessel, in which they shall or 
 may have been transported, such reasonable compensation, in addition to 
 the allowance now fixed by law, as shall be deemed equitable by the comp- 
 troller of the treasury. 
 
 ACT OF 1812, CHAPTER 40 (2 U. S. Stats, at Large, 694). 
 ! An Act respecting the enrolling and licensing of Steamboats. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America, in Congress assembled, Tliat from and 
 after the passing of this act, a steamboat employed, or intended to be em- 
 ployed only in a river or bay of the United States, owned wholly or in 
 part by an alien, resident within the United States, may, and shall be en- 
 rolled and licensed, as if the same belonged to a citizen of the United 
 States, according to, and subject to all the conditions, limitations, and pro- 
 visions contained in the act, intituled " An act for enrolling and licensing 
 ships or vessels to be employed in the coasting trade and fisheries, and for 
 regulating the same," except that, in such case, no oath or affirmation shall 
 be required that the said boat belongs to a citizen or citizens of the United 
 States. 
 
 Sec. 2. And be it further enacted. That the owner or owners of such 
 steamboat, upon application for enrolment or license, shall give bond to the
 
 672 APPENDIX. 
 
 collector of the district, to and for the use of the United States, in the penalty 
 of one thousand dollars, with sufficient surety, conditioned, that the said 
 boat shall not be employed in other waters than the rivers and bays of the 
 United States. 
 
 ACT OF 1813, CHAPTER 42 (2 U. S. Stats, at Large, 809). 
 
 An Act for the Regulation of Seamen on board the Public and Private Vessels of the United 
 
 States. 1 
 
 "Section 1. Se it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That from and 
 after the termination of the war in which the United States are now 
 engaged with Great Britain, it shall not be lawful to employ on board any 
 of the public or private vessels of the United States any person or persons 
 except citizens of the United States, or persons of color, natives of the 
 United States. 
 
 Sec. 2. And he it further enacted, That from and after the time when 
 this act shall take effect, it shall not be lawful to employ as aforesaid, any 
 naturalized citizen of the United States, unless such citizen shall produce 
 to the commander of the public vessel, if to be employed on board such 
 vessel, or to a collector of the customs, a certified copy of the act by which 
 he shall have been naturalized, setting forth such naturalization and the 
 time thereof. 
 
 Sec. 3. And he it further enacted, That in all cases of private vessels 
 of the United States sailing from a port in the United States to a foreign 
 port, the list of the crew, made as heretofore directed by law, shall be ex- 
 amined by the collector for the district from which the vessel shall clear 
 out, and, if approved of by him, shall be certified accoi'dingly. And no 
 person shall be admitted or employed as aforesaid, on board of any vessel 
 aforesaid, unless his name shall have been entered in the list of the crew, 
 approved and certified by the collector for the district from which the ves- 
 sel shall clear out as aforesaid. And the said collector, before he delivers 
 the list of the crew, approved and certified as aforesaid, to the captain, 
 master, or proper officer of the vessel to which the same belongs, shall 
 cause the same to be recorded in a book by him for that purpose to be 
 provided, and the said record shall be open for the inspection of all per- 
 sons, and a certified copy thereof shall be admitted in evidence in any 
 court in which any question may arise, under any of the provisions of this 
 act. 
 
 Sec. 4. And he it further enacted, That the President of the United 
 
 1 See Act of 1864, c. 170.
 
 APPENDIX, 673 
 
 » 
 States be, and lie hereby is authorized from time to time to make such fur- 
 ther regulations, and to give such directions to the several commanders of 
 public vessels, and to the several collectors, as may be proper and necessary 
 respecting the proofs of citizenship, to be exhibited to the commanders or 
 collectors aforesaid : Provided, That nothing contained in such regulations 
 or directions shall be repugnant to any of the provisions of this act. 
 
 Sec. 5. And he it farther enacted, That from and after the time when 
 this act shall take effect, no seaman or other seafaring man, not being a citi- 
 zen of the United States, shall be admitted or received as a passenger on 
 board of any public or private vessel of the United States, in a foreign 
 port, without permission in writing from the proper officers of the country 
 of which such seaman or seafaring man may be subject or citizen. 
 
 Sec. 6. And he it further enacted. That from and after the time when this 
 act shall take effect, the consuls or commercial agents of any nation at peace 
 with the United States shall be admitted (under such regulations as may be 
 prescribed by the President of the United States) to state their objections 
 to the proper commander or collector as aforesaid, against the employment 
 of any seaman or sea-faring man on board of any public or private vessel 
 of the United States, on account of his being a native subject or citizen of 
 such nation, and not embraced within the description of persons who may 
 be lawfully employed, according to the provisions of this act ; and the said 
 consuls or commercial agents shall also be admitted under the said regula- 
 tions, to be present at the time when the proofs of citizenship of the persons 
 against whom such objections may have been made, shall be investigated 
 by such commander or collector. 
 
 Sec. 7. And he it further enacted, That if any commander of a public 
 vessel of the United States shall knowingly employ or permit to be em- 
 ployed, or shall admit or receive, or permit to be admitted or received, on 
 board his vessel, any person whose employment or admission is prohibited 
 by the provisions of this act, he shall on conviction thereof forfeit and pay 
 the sura of one thousand dollars for each person thus unlawfully employed 
 or admitted on board such vessel. 
 
 Sec. 8. And he it further enacted. That if any person shall, contrary to 
 the prohibitions of this act, be employed, or be received on board of any 
 private vessel, the master or commander, and the owner or owners of such 
 vessel, knowing thereof, shall respectively forfeit and pay five hundred dol- 
 lars for each person thus unlawfully employed or received in any one voy- 
 age ; which sum or sums shall be recovered, although such seaman or per- 
 son shall have been admitted and entered in the certified list of the crew 
 ^ aforesaid, by the collector for the district to which the vessel may belong : 
 and all penalties and forfeitures arising under or incurred by virtue of this 
 act, may be sued for, prosecuted, and i-ecovered, with costs of suit by action
 
 574 APPENDIX. 
 
 « 
 
 of debt, and shall accrue and be one moiety thereof to the use of the per- 
 son who shall sue for the same, and the other moiety thereof to the use of 
 the United States. 
 
 Sec. 9. A7id be it further enacted, That nothing in this act contained 
 shall be construed to prohibit any commander or master of a public or 
 private vessel of the United States, whilst in a foreign port or place, from 
 receiving any American seaman in conformity to law, or supplying any 
 deficiency of seamen on board such vessel, by employing American seamen, 
 or subjects of such foreign country, the employment of whom shall not be 
 prohibited by the laws thereof. 
 
 Sec. 10. And be it further enacted, That the provisions of this act shall 
 have no effect or operation with respect to the employment as seamen of 
 the subjects or citizens of any foreign nation which shall not, by treaty or 
 special convention with the government of the United States, have prohib- 
 ited on board of her public and private vessels the employment of native 
 citizens of the United States, who have not become a citizen or subject of 
 such nation. 
 
 Sec. 11. A}id be it further enacted, That nothing in this act contained 
 shall be so construed as to prevent any arrangement between the United 
 States and any foreign nation, which may take place under any treaty or 
 convention, made and ratified in the manner prescribed by the Constitution 
 of the United States. 
 
 Sec. 12. And be it farther enacted, That no person who shall arrive in 
 the United States, from and after the time when this act shall take effect, 
 shall be admitted to become a citizen of the United States, who shall not 
 for the continued term of five years next preceding his admission as afore- 
 said have resided within the United States [without being at any time 
 during the said five years, out of the territory of the United States].^ 
 
 Sec. 13. And be it further enacted, That if any person shall falsely 
 make, forge, or counterfeit, or cause, or procure to be falsely made, forged, 
 or counterfeited, any certificate or evidence of citizenship referred to in 
 this act ; or shall pass, utter, or use as true, any false, forged, or counter- 
 feited certificate of citizenship, or shall make sale or dispose of any certifi- 
 cate of citizenship to any person other than the person for whom it was 
 originally issued, and to whom it may of right belong, every such person 
 shall be deemed and adjudged guilty of felony ; and on being thereof con- 
 victed by due course of law, shall be sentenced to be imprisoned and kept 
 to hard labor for a period not less than three, or more than five years, or be 
 fined in a sum not less than five hundred dollars, nor more than one 
 thousand dollars, at the discretion of the court taking cognizance thereof. « 
 
 Sec. 14. And be it further enacted, That no suit shall be brought for 
 
 * The clause in brackets is repealed by Act of 1848, c. 72.
 
 APPENDIX. 575 
 
 any forfeiture or penalty incurred under the provisions of this act un- 
 less the suit be commenced within three years from the time of the 
 forfeiture. 
 
 ACT OF 1813, CHAPTER 2 (3 U. S. Stats, at Large, 2). 
 An Act for the Government of Persons in certain Fisheries.^ 
 
 Section 1. J3e it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the master or 
 skipper of any vessel of the burden of twenty tons or upwards, qualified 
 according to law for carrying on the bank and other cod fisheries, bound 
 from a port of the United States to be employed in any such fishery, at 
 sea, shall, before proceeding on such fishing voyage, make an agreement 
 in writing or print with every fisherman who may be employed therein 
 (except only an apprentice or servant of himself or owner), and in addi- 
 tion to such terms of shipment as may be agreed on, shall in such agree- 
 ment express whether the same is to continue for one voyage or for the 
 fishing season, and shall also express that the fish or the proceeds of such 
 fishing voyage or voyages, which may appertain to the fishermen, shall be 
 divided among them in proportion to the quantities or number of said fish 
 which they may respectively have caught ; which agreement shall be in- 
 dorsed or countersigned by the owner of such fishing vessel or his agent. 
 And if any fisherman, having engaged himself for a voyage or for the 
 fishing season, in any fishing vessel, and signed an agreement therefor, as 
 aforesaid, shall thereafter and while such agreement remains in force and 
 to be performed, desert or absent himself from such vessel without leave 
 of the master or skipper thereof, or of the owner or his agent, such de- 
 serter shall be liable to the same penalties as deserting seamen or mari- 
 ners are subject to in the merchant service, and may in the like manner, 
 and upon the like complaint and proof, be apprehended and detained ; 
 and all costs of process and commitment, if paid by the master or owner, 
 shall be deducted out of the share of fish, or proceeds of any fishing voy- 
 age to which such deserter had or shall become entitled. And any fisher- 
 man, having engaged himself as aforesaid, who shall during such fishing 
 voyage refuse or neglect his proper duty on board the fishing vessel, being 
 thereto ordered or required by the master or skipper thereof, or shall 
 otherwise resist his just commands to the hinderance or detriment of such 
 voyage, besides being answerable for all damages arising thereby, shall 
 forfeit to the use of the owner of such vessel his share of any public al- 
 lowance which may be paid upon such voyage. 
 
 » See Act of 1865, c. 117.
 
 676 APPENDIX. 
 
 Sec. 2. And he it further enacted, That where an agreement or contract 
 shall be so made and signed for a fishing voyage or for the fishing season, 
 and any fish which may have been caught on board such vessel during 
 the same, shall be delivered to the owner or to his agent for cure, and shall 
 be sold by said owner or agent, such vessel shall, for the term of six 
 months after such sale, be liable and answerable for the skipper's and 
 every other fisherman's share of such fish, and may be proceeded against 
 in the same form and to the same effect as any other vessel is by law 
 liable, and may be proceeded against for the wages of seamen or mariners 
 in the merchant service. And upon such process for the value of a share 
 or shares of the proceeds of fish delivered and sold as aforesaid, it shall be 
 incumbent on the owner or his agent to produce a just account of the sales 
 and division of such fish according to such agreement or contract ; other- 
 wise the said vessel shall be answerable upon such process for what may 
 be the highest value of the share or shares demanded. But in all cases 
 the owner of such vessel or his agent, appearing to answer to such process, 
 may offer thereupon his account of general supplies made for such fishing 
 voyage and of other supplies therefor made to either of the demandants, 
 and shall be allowed to produce evidence thereof in answer to their de- 
 mands respectively ; and judgment shall be rendered upon such process 
 for the respective balances which upon such an inquiry shall appear : 
 Provided always, That when process shall be issued against any vessel 
 liable as aforesaid, if the owner thereof, or his agent, will give bond to 
 each fisherman in whose favor such process shall be instituted with suf- 
 ficient security, to the satisfaction of two justices of the peace, one of 
 whom shall be named by such owner or agent, and the other by the 
 fisherman or fishermen pursuing such process, or if either party shall re- 
 fuse, then the justice first appointed shall name his associate, with con- 
 dition to answer and pay whatever sum shall be recovered by him or them 
 on such process, there shall be an immediate discharge of such vessel : 
 Provided, That nothing herein contained shall prevent any fisherman from 
 having his action at common law for his share or shares of fish or the pro- 
 ceeds thereof as aforesaid. 
 
 ACT OF 1813, CHAPTER 35 (3 U. S. Stats, at Large, 49). 
 
 An Act laying a Duty on imported Salt; granting a Bounty on Pickled Fish exported, and 
 Allowances to certain Vessels employed in the Fisheries. 
 
 Section 1. Pe it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That from and after 
 the first day of January next, a duty of twenty cents per bushel shall be laid, 
 imposed, and collected, upon all salt imported from any foreign port or
 
 APPENDIX. 577 
 
 place into the United States. In calculating the said duty, every fifty-six 
 pounds of salt shall be computed as equal to one bushel. And the said 
 duty shall be dollected in the same manner, and under the same regula- 
 tions as other duties laid on the importation of foreign goods, wares, and 
 merchandise, into the United States : Provided, That drawback shall in no 
 case be allowed, and the term of credit for the payment of duties shall be 
 nine months. 
 
 Sec. 2. And be it further enacted, That on all pickled fish^ of the fish- 
 eries of the United States, exported therefrom subsequent to the last day 
 of December, one thousand eight hundred and fourteen, thei'e shall be 
 allowed and paid a bounty of twenty cents per barrel, to be paid by the 
 collector of the district from which the same shall be so exported, without 
 any deduction or abatement : Provided ahvays. That in order to entitle the 
 exporter or exporters of such pickled fish to the benefit of such bounty or 
 allowance, the said exporter or exporters shall make entry with the col- 
 lector and naval ofiicer of the district from whence the said pickled fish are 
 intended to be exported ; and shall specify in such entry the names of the 
 master and vessel in which, and the place where such fish are intended to 
 be expoi'ted, together with the particular quantity, and proof shall be made 
 to tlie satisfaction of the collector of the district from which such pickled 
 fish are intended to be exported, and of the naval officer thereof, if any, 
 that the same are of the fisheries of the United States ; and no entry shall 
 be received, as aforesaid, of any pickled fish which have not been inspected 
 and marked pursuant to the inspection laws of the respective States where 
 inspection laws are in force, in regard to any pickled fish, and the casks 
 containing such fish shall be branded with the words " for bounty," with 
 the name of the inspector or packer, the species and quality of the fish 
 contained therein, and the name of the port of exportation ; and the col- 
 lector of such district shall, together with the naval officer, where there is 
 one, grant an order or permit for an inspector to examine the pickled fish 
 as expressed in such entry, and if they correspond therewith, and the said 
 officer is fully satisfied that they ai'e of the fisheries of the United States, 
 to lade the same agreeably to such entry, on board the ship or vessel 
 therein expressed ; which lading shall be performed under the superintend- 
 ence of the officer examining the same, who shall make returns of the 
 quantity and quality of pickled fish so laden on board, in virtue of such 
 order or permit, to the officer or officers granting the same. And the said 
 exporter or exporters, when the lading is completed, and after returns 
 thereof have been made as above directed, shall make oath or aflarmation, 
 that the pickled fish expressed in such entry, and then actually laden on 
 
 » See Act of 1846, c. 74, § 5 ; Act of 1816, c. 14. 
 VOL. II. 37
 
 578 APPENDIX 
 
 board the ship or vessel as therein expressed, are truly and bona fide of 
 the fisheries of the United States, that they are truly intended to be ex- 
 ported as therein specified, and are not intended to be relanded within the 
 limits of the United States ; and shall also give bond in double the amount 
 of the bounty or allowance to be received, with one or more sureties to the 
 satisfaction of the collector of the port or place from which the said pickled 
 fish are intended to be exported, conditioned that the same shall be landed 
 and left at some foreign port or place without the limits aforesaid ; which 
 bonds shall be cancelled at the same periods and in like manner as is pro- 
 vided in respect to bonds given on the exportation of goods, wares, and 
 merchandise, entitled to drawback of duties : Provided always, That the 
 said bounty or allowance shall not be paid until at least six months after 
 the exportation of such pickled fish, to be computed from the date of the 
 bond, and until the exporter or exporters thereof shall produce to the col- 
 lector with whom such outward entry is made such certificates or other 
 satisfactory proof of the landing of the same, as aforesaid, as is made neces- 
 sary for cancelling the bonds given on the exportation of goods entitled to 
 drawback : And provided also, That the bounty or allowance, as aforesaid, 
 shall not be paid unless the same shall amount to ten dollars at least upon 
 each entry. 
 
 Sec. 3. And be it further enacted, That no bounty, drawback, or allow- 
 ance shall be made under the authority of this act, unless it shall be 
 proved to the satisfaction of the collector that the pickled fish for which 
 the bounty, drawback, or allowance shall be claimed was wholly cured 
 with foreign salt, and on which a duty shall have been secured or paid. 
 
 Sec. 4. And be it further enacted. That if any pickled fish shall be 
 falsely or fraudulently entered with intent to obtain the bounty or allow- 
 ance on their exportation as here provided, when the said fish are not enti- 
 tled to the same, the said fish or the value thereof, to be recovered of the 
 person making such false entry, shall be forfeited. 
 
 Sec. 5. And be it further enacted, That from and after the last day of 
 December, one thousand eight hundred and fourteen, there shall be paid 
 on the last day of December, annually, to the owner of every vessel or bis 
 agent, by the collector of the district where such vessel may belong, that 
 shall be qualified agreeably to law for carrying on the bank and other cod 
 fisheries, and that shall actually have been employed therein at sea for the 
 term of four months, at the least, of the fishing season next preceding, 
 which season is accounted to be from the last day of February to the last 
 day of November in every year, for each and every ton of such vessel's 
 burden according to her admeasurement as licensed or enrolled, if of twenty 
 tons and not exceeding thirty tons, two dollars and forty cents ; and if 
 above thirty tons, four dollars ; of which allowance aforesaid three eighth
 
 APPENDIX. 579 
 
 parts shall accrue and belong to the owner of such fishing vessel, and the 
 other five eighths thereof shall be divided by him, his agent, or lawful rep- 
 resentative to and among the several fishermen who shall have been em- 
 ployed in such vessel during the season aforesaid, or a part thereof, as the 
 case may be, in such proportions as the fish they shall respectively have 
 taken may bear to the whole quantity of fish taken on board such vessel 
 during such season : Provided, That the allowance aforesaid on any one 
 vessel for one season shall not exceed two hundred and seventy-two dol- 
 lars. 
 
 Sec. 6. And be it further enacted, That from and after the last day of 
 December, one thousand eight hundred and fourteen, there shall also be 
 paid on the last day of December, annually, to the owner of every fishing 
 boat or vessel of more than five tons and less than twenty tons, or (o his 
 agent or lawful representative, by the collector of the district where such 
 boat or vessel may belong, the sum of one dollar and sixty cents upon 
 every ton admeasurement of such boat or vessel, which allowance shall 
 be accounted for as part of the proceeds of the fares of said boat or vessel, 
 and shall accordingly be so divided among all persons interested therein : 
 Provided however. That this allowance shall be made only to such boats or 
 vessels as shall have been actually employed at sea in the cod fishery for 
 the term of four months at the least of the preceding season : And provided 
 also. That such boat or vessel shall have landed in the course of said 
 preceding season a quantity of fish not less than twelve quintals for every 
 ton of her admeasurement ; the said quantity of fish to be ascertained when 
 dried and cured fit for exportation, and according to the weight thereof as 
 the same shall weigh at the time of delivery when actually sold, which 
 account of the weight, with the original adjustment and settlement of the 
 fare or fares among the owners and fishermen, together with a written ac- 
 count of the length, breadth, and depth of said boat or vessel, and the time 
 she has actually been employed in the fishery in the preceding season 
 shall in all cases be produced and sworn or affirmed to before the said col- 
 lector of the district, in order to entitle the owner, his agent, or lawful 
 representative to receive the allowances aforesaid. And if at any time 
 within one year after payment of such allowance it shall appear that any 
 fraud or deceit has been practised in obtaining the same, the boat or vessel 
 upon which such allowance shall have been paid, if found within the 
 district aforesaid, shall be forfeited, otherwise the owner or owners having 
 practised such fraud or deceit shall forfeit and pay one hundred dollars 
 to be sued for, recovered, and distributed in the same manner as forfeitures 
 and penalties are to be sued for, recovered, and distributed for any breach 
 of the act, intituled " An act to regulate the collection of duties on imports 
 and tonnase."
 
 580 APPENDIX. 
 
 Sec. 7. And he it further enacted, That the owner or owners of every 
 fishing vessel of twenty tons and upwards, his or their agent or lawful 
 representative, shall previous to receiving the allowance made by this act, 
 produce to the collector who is authorized to pay the same the original 
 agreement or agreements which may have been made with the fishermen 
 employed on board such vessel, as is hereinbefore required, and also a 
 certificate, to be by him or them subscribed, therein mentioning the par- 
 ticular days on which such vessel sailed and returned on the several voy- 
 ages or fares she may have made in the preceding fishing season, to the 
 truth of which he or they shall swear or affirm before the collector afore- 
 said. 
 
 Sec. 8. And he it farther enacted, That no ship or vessel of twenty tons 
 or upward-, employed as aforesaid, shall be entitled to the allowance 
 granted by this act, unless the skipper or master thereof shall, before he 
 proceeds on any fishing voyage, make an agreement in writing or in print 
 with every fisherman employed therein, according to the provisions of 
 the act intituled " An act for the government of persons in certain fish- 
 eries." 
 
 Sec. 9. And he it further enacted, That any person who shall make any 
 false declaration in any oath or affirmation required by this act, being duly 
 convicted thereof in any court of the United States having jurisdiction of 
 such offence, shall be deemed guilty of wilful and corrupt perjury, and shall 
 be punished accordingly. 
 
 Sec. 10. And he it further enacted, That this act shall continue in force 
 until the termination of the war in which the United States are now 
 engaged with the United Kingdom of Great Britian and Ireland, and the 
 dependencies thereof, and for one year thereafter and no longer. 
 
 ACT OF 1816, CHAPTER U (3 U. S. Stats, at Large, 254). 
 
 An Act to continue in force " An Act entitled An Act, laying a Duty on imported Salt, (/rant- 
 ing a Boiuity on Pickled Fish exported, and Allowances to certain Vessels employed in the 
 Fisheries." 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 ■States of America in Congress assembled. That the act, entitled "An act 
 laying a duty on imported salt, granting a bounty on pickled fish exported, 
 and allowances to certain vessels employed in the fisheries," passed on the 
 twenty-ninth day of July, in the year one thousand eight hundred and thir- 
 teen, shall be, and the same is hereby continued in force, anything in the 
 said act to the contrary thereof in any wise notwithstanding.
 
 APPENDIX. 581 
 
 ACT OF 1817, CHAPTER 31 (3 U. S. Stats, at Large, 351). 
 An Act concer-ning the Navigation of the United States. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That after the thir- 
 tieth day of September next, no goods, wares, or merchandise shall be 
 imported into the United States from any foreign port or place, except in 
 vessels of the United States, or in such foreign vessels as truly and Avholly 
 belong to the citizens or subjects of that country, of which the goods are 
 the growth, production, or manufacture ; or from which such goods, wares, 
 or merchandise can only be, or most usually are, first shipped for trans- 
 portation : Provided nevertheless, That this regulation shall not extend 
 to the vessels of any foreign nation which has not adopted, and which shall 
 not adopt, a similar regulation. 
 
 Sec. 2. And be it further enacted. That all goods, wares, or merchandise 
 imported into the United States contrary to the true intent and meaning 
 of this act, and the ship or vessel wherein the same shall be imported, 
 together with her cargo, tackle, apparel, and furniture, shall be forfeited to 
 the United States ; and such goods, wares, or merchandise, ship, or vessel, 
 and cargo, shall be liable to be seized, prosecuted, and condemned, in like 
 manner, and under the same regulations, restrictions, and provisions, as 
 have been heretofore established for the recovery, collection, distribution, 
 and remission of forfeitures to the United States by the several revenue 
 laws. 
 
 Sec. 3. And be it further enacted, That after the thirtieth day of Sep- 
 tember next, the bounties and allowances now granted by law to the 
 owners of boats or vessels engaged in the fisheries shall be paid only on 
 boats or vessels, the oflBcers and at least three fourths of the crews of 
 which shall be proved to the satisfaction of the collector of the district 
 where such boat or vessel shall belong to be citizens of the United States, 
 or persons not the subjects of any foreign prince or 'State. 
 
 Sec. 4. And be it further enacted. That no goods, wares, or merchandise 
 shall be imported, under penalty of forfeiture thereof, from one port of the 
 United States to another port of the United States, in a vessel belonging 
 wholly or in part to a subject of any foreign power ; but this clause shall 
 not be construed to prohibit the sailing of any foreign vessel from one to 
 another port of the United States, provided no goods, wares, or merchan- 
 dise, other than those imported in such vessel from some foreign port, and 
 which shall not have been unladen, shall be carried from one port or place 
 to another in the United States. 
 
 Sec. 5. And be it further enacted, That after the thirtieth day of Sep-
 
 582 APPENDIX. 
 
 tember next, there sliall be paid a duty of fifty cents per ton upon every 
 ship or vessel of the United States which shall be entered in a district in 
 one State from a district in another State, except it be an adjoining State 
 on the sea-coast, or on a navigable river or lake, and except also it be a 
 coasting vessel going from Long Island, in the State of New York, to the 
 State of Rhode Island, or from the State of Rhode Island to the said Long 
 Island, having on board goods, wares, and merchandise, taken in one State, 
 to be delivered in another State : Provided, That it shall not be paid on 
 any ship or vessel having a license to trade between the different districts 
 of the United States, or to carry on the bank or whale fisheries, more than 
 once a year : And provided cdso, That if the owner of any such vessel, or 
 his agent, shall prove, to the satisfaction of the collector, that three, fourths 
 at least of the crew thereof are American citizens, or persons not the sub- 
 jects of any foreign prince or State, the duty to be paid in such case shall 
 be only at the rate of six cents per ton ; but nothing in this section shall 
 be construed to repeal or effect any exemption from tonnage duty given by 
 the eighth section of the act, entitled " An act to provide for the establish- 
 ment of certain districts, and therein to amend an act, entitled An act to 
 regulate the collection of duties on imports and tonnage, and for other 
 purposes." 
 
 Sec. 6. And be it further enacted, That after the thirtieth day of Sep- 
 tember next, there shall be paid upon every ship or vessel of the United 
 States, which shall be entered in the United States, from any foreign port 
 or place, unless the officers, and at least two thirds of the crew thereof, 
 shall be proved citizens of the United States, or persons not the subjects of 
 any foreign prince or State, to the satisfaction of the collector, fifty cents 
 per ton : And provided also. That this section shall not extend to ships or 
 vessels of the United States which are now on foreign voyages, or which 
 may depart from the United States prior to the first day of May next, 
 until after their return to some port of the United States. 
 
 Sec. 7. And be it further enacted. That the several bounties and remis- 
 sions, or abatements of duty, allowed by this act, in the case of vessels 
 having a certain proportion of seamen who are American citizens, or per- 
 sons not the subjects of any foreign power, shall be allowed only in the 
 case of vessels having such proportion of American seamen during their 
 whole voyage, unless in case of sickness, death, or desertion, or where 
 the whole or part of the crew shall have been taken prisoners in the 
 voyage.
 
 APPENDIX. 583 
 
 ACT OF 1817, CHAPTER 40 (3 U. S. Stats, at Large, 362). 
 
 An Act authorizing the Deposit of the Papers of foreign Vessels, with the Consul of their 
 
 respective Nations. 
 
 Section 1. Be it enacted ly the Senate and House of Representatives of the 
 United States of America, in Congress assembled, That the register, or other 
 document in lieu thereof, together with the clearance and other papers, 
 granted by the officers of the customs to any foreign ship or vessel, at her 
 departure from the port or place from which she may have arrived, shall, 
 previous to entry in any port of the United States, be produced to the col- 
 lector with whom such entry is to be made. And it shall be the duty of 
 the master or commander, within forty-eight hours after such entry, to 
 deposit the said papers with the consul or vice-consul of the nation to 
 which the vessel belongs, and to deliver to the collector the certificate of 
 such consul or vice-consul that the said papers have been so deposited ; 
 and any master, or commander, as aforesaid, who shall fail to comply with 
 this regulation, shall, upon conviction thereof in any court of competent 
 jurisdiction, be fined in a sum not less than five hundred dollars, nor 
 exceeding two thousand dollars : Provided, That this act shall not extend 
 to the vessels of foreign nations in whose ports American consuls are not 
 permitted to have the custody and possession of the register and other 
 papers of vessels entering the ports of such nation, according to the pro- 
 visions of the second section of the act supplementary to the act " con- 
 cerning consuls and vice-consuls, and for the further protection of Ameri- 
 can seamen," passed the twenty-eighth of February, one thousand eight 
 hundred and three. 
 
 Sec. 2. And he it further enacted, That it shall not be lawful for any 
 foreign consul to deliver to the master or commander of any foreign vessel 
 the register and other papers deposited with him pursuant to the provisions 
 of this act, until such master or commander shall produce to him a clear- 
 ance in due form from the collector of the port where such vessel has been 
 entered ; and any consul offending against the provisions of this act shall, 
 upon conviction thereof before the Supreme Court of the United States, be 
 fined at the discretion of the court in a sum not less than five hundred 
 dollars, nor exceeding five thousand dollars. 
 
 ACT OF 1819, CHAPTER 48 (3 U. S. Stats, at Large, 492). 
 
 An Act supplementary to the Acts concerninc/ the Coasting Trade.^ 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That for the more 
 
 1 See Act of 1820, c. 122 • Act of 1822, c. 56 ; Act of 1823, c. 22.
 
 584 APPENDIX. 
 
 convenient regulation of the coasting trade, the sea-coast and navigable 
 rivers of the United States be, and hereby are, divided into two great dis- 
 tricts ; the first, to include all the districts on the sea-coast and navigable 
 rivers, between the eastern limits of the United States and the southern 
 limits of Georgia, and the second, to include all the districts on the sea- 
 coast and navigable rivers, between the river Perdido and the western 
 limits of the United States. 
 
 Sec. 2. And be it further enacted, That every ship or vessel, of the bur- 
 den of twenty tons or upwards, licensed to trade between the different dis- 
 tricts of the United States, shall be, and is hereby authorized to carry on 
 such trade between the districts included within the aforesaid great districts 
 respectively, and between a State in one, and an adjoining State in another, 
 great district, in manner, and subject only to the regulations that are, now 
 by law required to be observed by such ships or vessels, in trading from 
 one district to another in the same State, or from a district in one State to 
 a district in the next adjoining State, anything in any law to the contrary, 
 notwithstanding. 
 
 Sec. 3. And be it further enacted, That every ship or vessel, of the bur- 
 den of twenty tons or upwards, licensed to trade as aforesaid, shall be, and 
 is hereby, required, in trading from one to another great district, other than 
 between a State in one, and an adjoining State in another, great district, to 
 conform to and observe the regulations, that, at the time of passing this 
 act, are required to be observed by such vessels in trading from a district 
 in one State to a district in any other than an adjoining State. 
 
 Sec. 4. And be it further enacted. That the trade between the districts not 
 included in either of the two gi*eat districts aforesaid shall continue to 
 be carried on in the manner, and subject to the regulations, already pro- 
 vided for this purpose. 
 
 Sec. 5. And be it further enacted, That this act shall commence and be 
 in force, from and after the thirtieth day of June next after the passing 
 thereof 
 
 ACT OF 1819, CHAPTER 77 (3 U. S. Stats, at Large, 510). 
 An Act to protect the Commerce of the United States, and punish the Crime of Piracy. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the President of 
 the United States be, and hereby is, authorized and requested to employ 
 so many of the public armed vessels as, in his judgment, the service may 
 require, with suitable instructions to the commanders thereof, in protecting 
 the merchant vessels of the United States and their crews from piratical 
 aggressions and depredations.
 
 APPENDIX. 585 
 
 Sec. 2. And be it further enacted, That the President of the United 
 States be, and hereby is, authorized to instruct the commanders of the 
 public armed vessels of the United States to subdue, seize, take, and send 
 into any port of the United States, any armed vessel or boat, or any vessel 
 or boat, the crew whereof shall be armed, and which shall have attempted 
 or committed any piratical aggression, search, restraint, depredation, or 
 seizure, upon any vessel of the United States, or of the citizens thereof, or 
 upon any other vessel ; and also to retake any vessel of the United States, 
 or its citizens, which may have been unlawfully captured upon the high 
 seas. 
 
 Sec. 3. And be it further enacted, That the commander and crew of any 
 merchant vessel of the United States, owned wholly, or in part, by a citizen 
 thereof, may oppose and defend against any aggression, search, restraint, 
 depredation, or seizure, which shall be attempted upon such vessel, or upon 
 any other vessel owned as aforesaid by the commander or crew of any 
 armed vessel whatsoever, not being a public armed vessel of some nation 
 in amity with the United States ; and may subdue and capture the same ; 
 and may also retake any vessel, owned as aforesaid, which may have been 
 captured by the commander or crew of any such armed vessel, and send 
 the same into any port of the United States. 
 
 Sec. 4. A7id be it further enacted, That whenever any vessel or boat, 
 from which any piratical aggression, search, restraint, depredation, or 
 seizure shall have been first attempted or made, shall be captured and 
 brought into any port of the United States, the same shall and may 
 be adjudged and condemned to their use, and that of the captors, after due 
 process and trial, in any court having admiralty jurisdiction, and which 
 shall be holden for the district into which such captured vessel shall be 
 brought ; and the same court shall thereupon order a sale and distribution 
 thereof accordingly, and at their discretion. 
 
 Sec. 5. And be it further enacted, That if any person or persons what- 
 soever, shall, on the high seas, commit the crime of piracy, as defined by 
 the law of nations, and such offender or offenders, shall afterwards be 
 brought into or found in the United States, every such offender or offenders 
 shall, upon conviction thereof, before the circuit court of the United States 
 for the district into which he or they may be brought, or in which he or 
 they shall be found, be punished with death. 
 
 Sec. 6. And be it further enacted, That this act shall be in force until 
 the end of the next session of Congress.
 
 586 APPENDIX. 
 
 ACT OF 1819, CHAPTER 89 (3 U. S. Stats, at Large, 520). 
 
 An Act in addition to, and alteration of an Act, entitled " An Act laying a Duty on imported 
 Salt, granting a Bounty on Pickled Fish exported, and Allowances to certain Vessels employed 
 in the Fisheries." 
 
 Section 1. J3e it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That from and after 
 the passing of this act, there shall be paid, on the last day of December, 
 annually, to the owner of every fishing boat or vessel, or his agent, by the 
 collector of the district where such boat or vessel may belong, that shall be 
 qualified, agreeably to law, for carrying on the bank and other cod fisher- 
 ies, and that shall actually have been employed therein, at sea, for the 
 term of four months at least, of the fishing season next preceding, which 
 season is accounted to be from the last day of February to the last day of 
 November in every year, for each and every ton of such boats or vessels, 
 burden according to her admeasurement as licensed or enrolled, if of more 
 than five tons, and not exceeding thirty tons, three dollars and fifty cents ; 
 if above thirty tons, four dollars ; and if above thirty tons, and having had 
 a crew of not less than ten persons, and having been actually employed in 
 the cod fishery, at sea, for the term of three and one half months, at the 
 least, but less than four months, of the season aforesaid, three dollars and 
 fifty cents : Provided, That the allowance aforesaid, on any one vessel, for 
 one season, shall not exceed three hundred and sixty dollars. 
 
 Sec. 2. And be it further enacted, That such parts of the fifth and sixth 
 sections of the act hereby amended as are contrary to the provisions of 
 this act be, and the same are hereby, repealed. 
 
 ACT OF 1820, CHAPTER 113 (3 U. S. Stats, at Large, 600). 
 
 An Act to continue in force " An Act to protect the Commerce of the United States, and punish 
 the Crime of Piracy," and also to make further Provisions for p>unishing the Crime of 
 Piracy. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the first, second, third, 
 and fourth sections of an act, entitled " An act to protect the commerce of the 
 United States and punish the crime of piracy," passed on the third day of 
 March, one thousand eight hundred and nineteen, be, and the same are 
 hereby, continued in force, from the passing of this act for the term of two 
 years, and from thence to the end of the next session of Congress, and no 
 longer. 
 
 Sec. 2. And be it further enacted, That the fifth section of the said act
 
 APPENDIX. 587 
 
 be, and the same is hereby, continued in force, as to all crimes made 
 punishable by the same, and heretofore committed, in all respects as fully 
 as if the duration of the said section had been without limitation. 
 
 Sec. 3. A7id be it further enacted, That, if any person shall, upon the 
 high seas, or in any open roadstead, or in any haven, basin, or bay, or in 
 any river where the sea ebbs and flows, commit the crime of robbery, in or 
 upon any ship or vessel, or upon any of the ship's company of any ship or 
 vessel, or the lading thereof, such person shall be adjudged to be a pirate : 
 and, being thereof convicted before the circuit court of the United States 
 for the district into which he shall be brought, or in which he shall be 
 found, shall suffer death. And if any person engaged in any piratical 
 cruise or enterprise, or, being of the crew or ship's company of any piratical 
 ship or vessel, shall land from such ship or vessel, and, on shore, shall commit 
 robbery, such person shall be adjudged a pirate : and on conviction thereof 
 before the circuit court of the United States for the district into which he 
 shall be brought, or in which he shall be found, shall suffer death : Pro- 
 vided, That nothing iu this section contained shall be construed to deprive 
 any particular State of its jurisdiction over such offences, when committed 
 within the body of a county, or authorize the courts of the United States 
 to try any such offenders, after conviction or acquittance, for the same 
 offence, in a state court. 
 
 Sec. 4. And be it further enacted. That if any citizen of the United 
 States, being of the crew or ship's company of any foreign ship or vessel 
 engaged in the slave-trade, or any person whatever, being of the crew or 
 ship's company of any ship or vessel, owned in the whole or part, or 
 navigated for, or in behalf of, any citizen or citizens of the United States, 
 shall land, from any such ship or vessel, and, on any foreign shore, seize 
 any negro or mulatto, not held to service or labor by the laws of either 
 of the States or territories of the United States, with intent to make such 
 negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall 
 receive, such negro or mulatto on board any such ship or vessel, with 
 intent as aforesaid, such citizen or person shall be adjudged a pirate ; and, 
 on conviction thereof before the circuit court of the United States for the 
 district wherein he may be brought or found, shall suffer death. 
 
 Sec. 5. And be it further enacted, That if any citizen of the United 
 States, being of the crew or ship's company of any foreign ship or vessel 
 engaged in the slave-trade, or any person whatever, being of the crew or 
 ship's company of any ship or vessel, owned wholly or in part, or navigated 
 for, or in behalf of, any citizen or citizens of the United States, shall 
 forcibly confine or detain, or aid and abet in forcibly confining or detaining, 
 on board such ship or vessel, any negro or mulatto not held to service by 
 the laws of either of the States or territories of the United States, with
 
 688 APPENDIX. 
 
 intent to make such negro or mulatto a slave, or shall, on board any such 
 ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto not 
 held to service as aforesaid, or shall, on the high seas, or anywhere on 
 tide water, transfer or deliver over, to any other ship or vessel, any negro 
 or mulatto, not held to service as aforesaid, with intent to make such 
 negro or mulatto a slave, or shall land, or deliver on shore, from on board 
 any such ship or vessel, any such negro or mulatto, with intent to make 
 sale of, or having previously sold, such negro or mulatto, as a slave, 
 such citizen or person shall be adjudged a pirate; and, on conviction 
 thereof before the circuit court of the United States for the district wherein 
 he shall be brought or found, shall suffer death. 
 
 ACT OF 1821, CHAPTER 14 (3 U. S. Stats, at Large, 616). 
 
 An Act further to regulate the entry of Merchandise imported into the United States from any 
 
 adjacent Territory. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That it shall be the duty of 
 the master of any vessel, except registered vessels, and of every person having 
 charge of any boat, canoe, or raft, and of the conductor or driver of any 
 carriage or sleigh, and of every other person, coming from any foreign 
 territory adjacent to the United States, into the United States, with mer- 
 chandise subject to duty, to deliver, immediately on his or her arrival 
 within the United States, a manifest of the cargo or loading of such vessel, 
 boat, canoe, raft, carriage, or sleigh, or of the merchandise so brought from 
 such foreign territory, at the office of any collector or deputy collector 
 which shall be nearest to the boundary line, or nearest to the road or 
 waters by which such merchandise is brought ; and every such manifest 
 shall be verified by the oath of such person delivering the same ; which 
 oath shall be taken before such collector or deputy collector ; and such oath 
 shall state that such manifest contains a full, just, and true account, of the 
 kinds, quantities, and values, of all the merchandise, so brought from such 
 foreign territory ; and if the master, or other person having charge of such 
 vessel, boat, canoe, or raft, or the conductor or driver of such carriage or 
 sleigh, or other pei'son, bringing merchandise as aforesaid, shall neglect or 
 refuse to deliver the manifest herein required, or pass by, or avoid, such 
 oflSce, the merchandise subject to duty, and so imported, shall be forfeited 
 to the United States,' together with the vessel, boat, canoe, or raft, the 
 tackle, apparel, and furniture of the same, or the carriage or sleigh, and 
 harness and cattle, drawing the same, or the horses with their saddles and
 
 APPENDIX. 589 
 
 bridles, as the case may be ; and such master, conductor, or other importer 
 shall be subject to pay a penalty of four hundred dollars. 
 
 Sec. 2. And be it further enacted, That any deputy collector stationed in 
 any district of the customs contiguous to a foreign territory, to whom 
 a manifest of merchandise, subject to duty, shall be delivered as aforesaid, 
 is hereby authorized to require of the importer of such merchandise the 
 payment of the duties thereon, or good and ample security, either by bond, 
 with one or more sufficient sureties, for the payment thereof, or by the de- 
 posit of a portion of such merchandise, equal, at least, to double the amount 
 of the duties on the whole importation; which bond shall be cancelled, or 
 the merchandise, so deposited, shall be delivered to the owner, on the pro- 
 ducing to the deputy collector a certificate, of the collector of the district, 
 that the duties have been duly paid. 
 
 Sec. 3. Ajid be it further [^enacted,'] That all penalties and forfeitures 
 incurred by force of this act shall be sued for, recovered, distributed, and 
 accounted for in the manner prescribed by the act, entitled, " An act to 
 regulate the collection of duties on imports and tonnage," passed on the 
 second day of JNIai-ch, one thousand seven hundi-ed and ninety-nine, and 
 may be mitigated or remitted in the manner prescribed by the act, entitled 
 " An act to provide for the mitigating or remitting the forfeitures penalties, 
 and disabilities, accruing in certain cases therein mentioned," passed on the 
 third day of March, one thousand seven hundred and ninety-seven. 
 
 ACT OF 1823, CHAPTER 7 (3 U. S. Stats, at Large, 721). 
 
 An Act in addition to " An Act to continue in force 'An Act to protect the Commerce of the 
 United States, and punish the Crime of Piracy,' and, also, to make further Provision for 
 punishing the Crime of Piracy." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America, in Congress assembled. That the first, second, third, and 
 fourth sections of an act, entitled " An act to protect the commerce of the 
 United States, and punish the crime of piracy," passed on the third day of 
 March, in the year of our Lord one thousand eight hundred and nineteen, 
 be, and the same are hereby, continued in force, in all respects, as fully as 
 if the said sections had been enacted without limitation, in the said act, or 
 in the act to which this is an addition, and which was passed on the 
 fifteenth day of May, in the year of our Lord one thousand eight huudi-ed 
 and twenty.
 
 590 APPENDIX. 
 
 ACT or 1823, CHAPTER 58 (3 U. S. Stats, at Large, 781). 
 
 An Act to amend an Act, entitled "And \_An^ Act further to regulate the entry of Merchandise 
 imported into the United States from any adjacent Territory." 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America, in Congress assembled, That from and after 
 the passage of this act, every master or other person having charge of a 
 vessel, boat, canoe, or raft, or the conductor or driver of any carriage, or 
 sleigh, or other person bringing merchandise, from any foreign territory adja- 
 cent to the United States, who shall neglect or refuse to deliver a manifest, as 
 is required in and by the act, entitled " An act further to regulate the entry 
 of merchandise imported into the United States from any adjacent terri- 
 tory," passed the second day of March, one thousand eight hundred and 
 twenty-one, shall be subject to pay, instead of the penalty of four hundred 
 dollars imposed by the first section of said act, four times the value of the 
 merchandise so imported. 
 
 Sec. 2. And be it further enacted, That if any person or persons shall 
 receive, conceal, or buy, any goods, wares, or merchandise, knowing them 
 to have been illegally imported into the United States, and liable to 
 seizure by virtue of any act in relation to the revenue, such person or per- 
 sons shall, on conviction thereof, forfeit and pay a sum double the amount 
 or value of the goods, wares, or merchandise, so received, concealed, or 
 purchased. 
 
 Sec. 3. And be it further enacted, That if any person shall forcibly 
 resist, prevent, or impede, any officer of the customs or their deputies, 
 or any other person assisting them in the execution of their duty, such per- 
 son, so offending, shall, for every such offence, be fined a sum not exceed- 
 ing four hundred dollars. 
 
 Sec. 4. And be it further enacted. That the provisions of the forty-sixth 
 section of the act, entitled " An act to regulate the collection of duties on 
 imports and tonnage," passed the second day of March, Anno Domini one 
 thousand seven hundred and ninety-nine, be, and they are hereby, extended 
 to the case of goods, wares, merchandise, imported into the United States 
 from an adjacent tei-ritory. 
 
 Sec. 5. And be it further enacted, That all penalties and forfeitures, 
 incurred by force of this act, shall be sued for, recovered, distributed, and 
 accounted for, in the manner prescribed by an act, entitled " An act to 
 retrulate the collection of duties on imports and tonnage," passed on the 
 second day of March, Anno Domini one thousand seven hundred and 
 ninety-nine.
 
 APPENDIX. 591 
 
 ACT OF 1825, CHAPTEE 65 (4 U. S. Stats, at Large, 115). 
 
 An Act more effectually for the Punishment of certain Crimes against the United States, and 
 
 for other Purposes. 
 
 Section 4. And be it further enacted, That if any person or persons, 
 upon the high seas, or in any arm of the sea, or in any river, haven, creek, 
 basin, or bay, within the admiralty and maritime jurisdiction of the United 
 States, and out of the jurisdiction of any particular State, shall commit the 
 crime of wilful murder, or rape, or shall, wilfully and maliciously, strike, 
 stab, wound, poison, or shoot at, any other person, of which striking, stab- 
 bing, wounding, poisoning, or shooting such person shall afterwards die, 
 upon land, within or without the United States, every person so offending, 
 his or her counsellors, aiders, or abettors, shall be deemed guilty of felony, 
 and shall, upon conviction thereof, suffer death. 
 
 Sec. 5. And be it further enacted, That if any offence shall be committed 
 on board of any ship or vessel, belonging to any citizen or citizens of the 
 United States, while lying in a port or place within the jurisdiction of any 
 foreign State or sovereign, by any person belonging to the company of said 
 ship, or any passenger, or any other person belonging to the company of 
 said ship, on any other passenger, the same offence shall be cognizable and 
 punishable by the proper circuit court of the United States, in the same 
 way and manner, and under the same circumstances, as if said offence had 
 been committed on board of such ship or vessel on the high seas, and 
 without the jurisdiction of such foreign sovereign or State : Provided, 
 always, That if such offender shall be tried for such offence, and acquitted 
 or convicted thereof, in any competent court of such foreign State or sover- 
 eign, he shall not be subject to another trial in any court of the United 
 States. 
 
 Sec. 6. And be it further enacted. That, if any person or persons, upon 
 the high seas, or in any arm of the sea, or in any river, haven, creek, basin, 
 or bay, within the admiralty and maritime jurisdiction of the United States, 
 and out of the jurisdiction of any particular State, shall, by surprise or by 
 open force or violence, maliciously attack, or set upon, any ship or vessel 
 belonging in whole or part, to the United States, or to any citizen or citi- 
 zens thereof, or to any other person whatsover, with an intent unlawfully 
 to plunder the same ship or vessel, or to despoil any owner or owners 
 thereof, of any moneys, goods, or merchandise, laden on board thereof, 
 every person so offending, his or her counsellors, aiders, or abettors, shall 
 be deemed guilty of felony ; and shall, on conviction thereof, be punished 
 by fine, not exceeding five thousand dollars, and by imprisonment and
 
 592 APPENDIX. 
 
 confinement to hard labor, not exceeding ten years, according to the aggra- 
 vation of the offence. 
 
 Sec. 7. And be it further enacted, That, if any person 6r persons, upon 
 the high seas, or in any other of the places aforesaid, with intent to kill, 
 rob, steal, commit a rape, or to do or perpetrate any other felony, shall 
 break or enter any ship or vessel, boat or raft ; or if any person or persons 
 shall, wilfully and maliciously, cut, spoil, or destroy, any cordage, cable, 
 buoys, buoy-rope, headfast, or other fast, fixed to any anchor or moorings, 
 belonging to any ship, vessel, boat, or raft ; every person, so offending, his 
 or her counsellors, aiders, and abettors, shall be deemed guilty of felony, 
 and shall, on conviction thereof, be punished by fine, not exceeding one 
 thousand dollars, and by imprisonment and confinement to hard labor, not 
 exceeding five years, according to the aggravation of the offence. 
 
 Sec. 8. And be it further enacted, That, if any person or persons, upon 
 the high seas, or in any of the places aforesaid, shall buy, receive, or con- 
 ceal, or aid in concealing any money, goods, bank-notes, or other effects or 
 things which may be the subject of larceny, which have been feloniously 
 taken or stolen, from any other person, knowing the same to have been 
 taken or stolen, every person, so offending, shall be deemed guilty of a 
 misdemeanor, and may be prosecuted therefor, although the principal 
 offender chargeable, or charged with the larceny, shall not have been 
 prosecuted or convicted thereof; and shall on conviction thereof, be pun- 
 ished by fine, not exceeding one thousand dollars, and imprisonment and 
 confinement to hard labor, not exceeding three years, according to the 
 aggravation of the offence. 
 
 Sec. 9. And be it further enacted, That, if any person or persons shall 
 plunder, steal, or destroy, any money, goods, merchandise, or other effects, 
 from or belonging to any ship or vessel, or boat or raft, which shall be in 
 distress, or which shall be wrecked, lost, stranded, or cast away, upon the 
 sea, or upon any reef, shoal, bank, or rocks, of the sea, or in any other 
 place within the admiralty and maritime jurisdiction of the United States, 
 or if any person or persons shall wilfully obstruct the escape of any person 
 endeavoring to save his or her life from such ship, or vessel, boat, or raft, or the 
 wreck thereof, or, if any person or persons shall hold out or show any false 
 light, or lights, or extinguish any true light, with intention to bring any 
 ship or vessel, boat or I'aft, being or sailing upon the sea, into danger, or 
 distress, or shipwreck ; every person, so offending, his or her counsellors, 
 aiders, and abettors, shall be deemed guilty of felony, and shall, on convic- 
 tion thereof, be punished by fine, not exceeding five thousand dollars, and 
 imprisonment and confinement to hard labor, not exceeding ten years, 
 according to the aggravation of the offence. 
 
 Sec. 10. And be it further enacted, That, if any master or commander
 
 APPENDIX. 593 
 
 of any sliip or vessel, belonging, in whole, or in part, to any citizen or citi- 
 zens of" the United States, shall, during his being abroad, maliciously, and 
 without justifiable cause, force any officer, or mariner of such ship or vessel, 
 on shore, or leave him behind, in any foreign port or place, or refuse to bring 
 home again, all such of the officers and mariners of such ship or vessel, 
 whom he carried out with him, as are in a condition to return, and willing 
 to return, when he shall be ready to proceed in his homeward voyage, 
 every master or commander, so offending, shall, on conviction thereof, be 
 punished by fine, not exceeding five hundred dollars, or by imprisonment, 
 not exceeding six months, according to the aggravation of the offence. 
 
 Sec. 11. And be it further etiacted, That, if any person or persons shall, 
 wilfully and maliciously, set on fire, or burn, or otherwise destroy or cause 
 to be set on fire, or burnt, or otherwise destroyed, or aid, procure, abet, or 
 assist in setting on fire, or burning, or otherwise destroying, any ship or 
 vessel of war of the United States, afloat on the high seas, or in any arm 
 of the sea, or in any river, haven, creek, basin, or bay within the admi- 
 ralty jurisdiction of the United States, and out of the jurisdiction of any 
 particular State, every person so offending shall be deemed guilty of felony, 
 and shall, on conviction thereof, suffer death : Provided, That nothing 
 herein contained shall be construed to take away or impair the right of 
 any court martial to punish any offence, which, by the law of the United 
 States, may be punishable by such court. 
 
 Sec. 22. And be it further enacted, That, if any person or persons, upon 
 the high seas, or in any arm of the sea, or in any river, haven, creek, basin, 
 or bay, within the admiralty jurisdiction of the United States, and out of 
 the jurisdiction of any particular State, on board any vessel belonging in 
 whole or in part to the United States, or any citizen or citizens thereof, 
 shall, with a dangerous weapon, or with intent to kill, rob, steal, or to com- 
 mit a mayhem, or rape, or to perpetrate any other felony, commit an 
 assault on another, such person shall, on conviction thereof, be punished by 
 fine, not exceeding three thousand dollars, and by imprisonment and con- 
 finement to hard labor, not exceeding three years, according to the aggrava- 
 tion of the offence. 
 
 Sec. 23. And be it further enacted, That, if any person or persons shall, 
 on the high seas, or within the United States, wilfully and corruptly con- 
 spire, combine, and confederate, with any other person or persons, such 
 other person or persons being either within or without the United States, 
 to cast away, burn, or otherwise destroy, any ship or vessel, or to procure 
 the same to be done, with intent to injure any person, or body politic, that 
 hath underwritten, or shall thereafterwards underwrite, any policy of in- 
 surance thereon, or on goods on board thereof, or with intent to injure any 
 person, or body politic, that hath lent or advanced, or thereafter shall lend 
 
 VOL. II. 38
 
 694 APPENDIX. 
 
 or advance, any money on such vessel, on bottomry or respondentia, or 
 shall, within the United States, build or fit out, or aid in building or fitting 
 out, any ship or vessel, with intent that the same shall be cast away, burnt, 
 or destroyed, for the purpose or with the design aforesaid, every person, so 
 offending, shall, on conviction thereof, be deemed guilty of felony, and shall 
 be punished by fine, not exceeding ten thousand dollars, and by imprison- 
 ment, and confinement to hard labor, not exceeding ten years. 
 
 ACT OF 1825, CHAPTER 99 (4 U. S. Stats, at Large, 129). 
 
 An Act to authorize the Register or Enrolment and License to be issued in the Name of the Presi- 
 dent or Secretary of any i7icorporated Company owning a Steamboat or Vessel.^ 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That enrolments 
 and licenses for steamboats or vessels, owned by any incorporated com- 
 pany, may be issued in the name of the president or secretary of such 
 company ; and that such enrolments and licenses shall not be vacated or 
 affected by a sale of any share or shares of any stockholder, or stock- 
 holders, in such company. 
 
 Sec. 2. And he it further enacted, That registers for steamboats or ves- 
 sels, owned by any incorporated company, may be issued in the name of 
 the president or secretary of such company ; and that such register shall 
 not be vacated or affected by a sale of any share or shares of any stock- 
 holder or stockholders in such company. 
 
 Sec. 3. And be it further enacted, That, upon the death, removal, or 
 resignation of the president or secretary of any incorporated company, 
 owning any steamboat or vessel, a new register, or enrolment and license, 
 as the case may be, shall be taken out for such steamboat or vessel. 
 
 Sec. 4. And be it further enacted, That, previously to granting a regis- 
 ter, or enrolment and license, for any steamboat or vessel, owned by any 
 company, the president or secretary of such company shall swear, or 
 affirm, as to the ownership of such steamboat or vessel, by such company, 
 without designating the names of the persons composing such company ; 
 which oath, or affirmation, shall be deemed sufficient, without requiring the 
 oath or affirmation of any other person interested or concerned in such 
 steamboat or vessel. 
 
 Sec. 5. And be it further enacted, That, before granting a register for 
 any steamboat or vessel, so owned by any incorporated company, the pres- 
 ident or secretary thereof shall swear, or affirm, that, to the best of his 
 
 * See Act of 1831, c 115.
 
 APPENDIX. 595 
 
 knowledge and belief, no part of such steamboat or vessel has been, or is 
 then, owned by any foreigner or foreigners.^ 
 
 ACT OF 1825, CHAPTER 107 (4 U. S. Stats, at Large, 132). 
 An Act concerning Wrecks on the Coast of Florida. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America, in Congress assembled, That, if any ship or vessel 
 shall, after the passing of this act, be engaged or employed in carrying or 
 transporting any property whatsoever, taken from any wreck, from the sea, 
 or from any of the keys or shoals within the jurisdiction of the United 
 States, on the coast of Florida, to any foreign port or place, every such 
 ship or vessel, so engaged and employed, together with her tackle, apparel, 
 and furniture, shall be wholly forfeited, and may be seized and condemned 
 in any court of the United States, or territories thereof, having competent 
 jurisdiction. 
 
 Sec. 2. And he it further enacted, That all property, of every descrip- 
 tion whatsoever, which shall be taken from any wreck from the sea, or 
 from any of the keys and shoals, within the jurisdiction of the United 
 States, on the coast of Florida, shall be brought to some port of entry 
 within the jurisdiction aforesaid. 
 
 Sec. 3. And be it further enacted, That all and every forfeiture, or 
 forfeitures, which shall be incurred by virtue of the provisions of this act, 
 shall accrue one moiety to the informer, or informers, and the other to the 
 United States, and may be mitigated, or remitted, in manner prescribed by 
 the act, entitled " An act to provide for mitigating or remitting the forfeit- 
 ures, penalties, and disabilities accruing in certain cases therein men- 
 tioned," passed the third day of March, one thousand seven hundred and 
 ninety-seven, and made perpetual by an act passed eleventh February, one 
 thousand eight hundred. 
 
 ACT OF 1828, CHAPTER 119 (4 U. S. Stats, at Large, .312). 
 
 An Act to authorize the licensing of Vessels to he employed in the Mackerel Fisliery. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of Amer-ica in Congress assembled, That, from and after the passage 
 of this act, it shall be the duty of the collector of the district to which any 
 vessel may belong, on an application for that purpose by the master or 
 
 ' Section 5 is repealed by Act of 1858, c. 145.
 
 696 APPENDIX. 
 
 owner thereof, to issue a license for carrying on the mackerel fishery, to 
 such vessel, in the form prescribed by the act, entitled " An Act for enroll- 
 ing and licensing ships or vessels to be employed in the coasting trade and 
 fisheries, and for regulating the same," passed the eighteenth day of Feb- 
 ruary, one thousand seven hundred and ninety-three : Provided, That all 
 the provisions of said act, respecting the licensing of ships or vessels for 
 the coasting trade and fisheries, shall be deemed and taken to be appli- 
 cable to licenses and to vessels licensed for carrying on the mackerel 
 fishery. 
 
 ACT OF 1829, CHAPTER 41 (4 U. S. Stats, at Large, 359). 
 
 An Act to provide for the Apprehension and Delivery of Deserters from certain foreign Vessels 
 in the Ports of the United States. ^ 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That on application of a consul 
 or vice-consul of any foreign government, having a treaty with the United 
 States, stipulating for the restoration of seamen deserting, made in writing, 
 stating that the person therein named has deserted from a vessel of any 
 such government while in any port of the United States, and on proof by 
 the exhibition of the register of the vessel, ship's roll, or other oificial 
 document, that the person named belonged, at the time of desertion, to the 
 crew of said vessel, it shall be the duty of any court, judge, justice, or 
 other magistrate, having competent power, to issue wan-ants to cause the 
 said person to be arrested for examination ; and if, on examination, the 
 facts stated are found to be true, the person arrested, not being a citizen of 
 the United States, shall be delivered up to the said consul or vice-consul, to 
 be sent back to the dominions of any such government, or, on the request, 
 and at the expense, of the said consul or vice-consul, shall be detained 
 until the consul or vice-consul finds an opportunity to send him back to the 
 dominions of any such government : Provided nevertheless, That no person 
 shall be detained more than two months after his arrest ; but at the end of 
 that time shall be set at liberty, and shall not be again molested for the 
 same cause : And provided further, That if any such deserter shall be 
 found to have committed any ciime or offence, his surrender may be de- 
 layed until the tribunal before which the case shall be depending, or may 
 be cognizable, shall have pronounced its sentence, and such sentence shall 
 have been carried into effect. 
 
 1 See Act of 1855, c. 123.
 
 APPENDIX. 597 
 
 ACT OF 1830, CHAPTER 14 (4 U. S. Stats, at Large, 372). 
 
 An Act to authorize Surveyors, under the Direction of the Secretary of the Treasui-y, to enroll 
 and license Ships or Vessels to be employed in the Coasting Trade and Fisheries. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That, after the pas- 
 sage of this act, the secretary of the treasury be, and he is hereby, invested 
 with powers to authorize the surveyor of any port of delivery, under such 
 regulations as he shall deem necessary, to enroll and license ships or ves- 
 sels to be employed in the coasting trade and fisheries, in like manner as 
 collectors of ports of entry are now authorized to do, under existing laws. 
 
 Sec. 2. And be it further enacted, T\\ni any surveyor who shall perform 
 the duties directed to be performed by the first section of this act shall be 
 entitled to receive the same commissions and fees as are now allowed by 
 law to collectors for performing the same duties, and no more. 
 
 ACT OF 1831, CHAPTER 20 (4 U. S. Stats, at Large, 441). 
 An Act to repeal the Charges imposed on Passports and Clearances. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That, so much of the act of the 
 first of June, one thousand seven hundred and ninety-six, entitled " An act 
 providing passports for the ships and vessels of the United States," as im- 
 poses a charge of ten dollars for passports, and of four dollars for a clear- 
 ance, to any ship or vessel bound on a voyage to any foreign country, be, 
 and the same is hereby, repealed, to take effect from and after the thirty- 
 first day of March of the present year. 
 
 ACT OF 1831, CHAPTER 98 (4 U. S. Stats, at Large, 487). 
 
 An Act to regulate the Foreign and Coasting Trade on the Northern, Northeastern, and 
 Northwestern Frontiers of the United States, and for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That, from and after 
 the first day of April next, no custom-house fees shall be levied or collected 
 on any raft, flat,boat, or vessel of the United States, entering otherwise 
 than by sea at any port of the United States on the rivers and lakes on our 
 northern, northeastern, and northwestern frontiers. 
 
 Sec. 2. And be it further enacted. That, from and after the first day of 
 April next, the same and no higher tonnage duties and custom-house
 
 598 APPENDIX. 
 
 charges of any kind shall be levied and collected on any British colonial 
 raft, flat, boat, or vessel, entering otherwise than by sea at any port of the 
 United States on the rivers and lakes on our northern, northeastern, and 
 northwestern frontiers, than may be levied and collected on any raft, flat, 
 boat, or vessel, entering otherwise than by sea at any of the ports of the 
 British possessions on our northern, northeastern, and northwestern 
 frontiers ; and that, from and after the first day of April next, no higher 
 discriminating duty shall be levied or collected on merchandise imported 
 into the United States in the ports aforesaid, and otherwise than by sea, 
 than may be levied and collected on merchandise when imported in 
 like manner otherwise than by sea, into the British possessions on our 
 northern, northeastern, and northwestern frontiers from the United 
 States. 
 
 Sec. 3. And be it further enacted, That, from and after the passage of 
 this act, any boat, sloop, or other vessel of the United States, navigating 
 the vpaters on our northern, northeastern, and northwestern frontiers, 
 otherwise than by sea, shall be enrolled and licensed in such form as may 
 be prescribed by the secretary of the treasury ; which enrolment and 
 license shall authorize any such boat, sloop, or other vessel to be era- 
 ployed either in the coasting or foreign trade ; and no certificate of regis- 
 try shall be required for vessels so employed on said frontiers : Provided, 
 That such boat, sloop, or vessel shall be in every other respect liable to 
 the rules, regulations, and penalties now in force, relating to registered 
 vessels on our northern, northeastern, and northwestern frontiers. 
 
 Sec. 4. And be it further enacted, That in lieu of the fees, emoluments, 
 salary, and commissions now allowed by law to any collector or surveyor 
 of any district on our northern, northeastern, and northwestern lakes 
 and rivers, each collector or surveyor, as aforesaid, shall receive, annually, 
 in full compensation for these services, an amount equal to the entire com- 
 pensation received by such officer during the past year. 
 
 ACT OF 1831, CHAPTER 115 (4 U. S. Stats, at Large, 492). 
 An Act concerning Vessels employed in the Whale Fishery. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That all the provisions of the 
 act, entitled " An act to authorize the register or enrolment, and license, 
 to be issued in the name of the president or secretary of any incorporated 
 company owning a steamboat or vessel," passed the third day of March, 
 one thousand eight hundred and twenty-five, shall extend and be applica- 
 ble to every ship or vessel owned by any incorporated company, and em-
 
 APPENDIX. 699 
 
 ployed wholly in the whale fishery, so long as such ship or vessel shall be 
 wholly employed in the whale fishery. 
 
 ACT OF 1835, CHAPTER 40 (4 U. S. Stats, at Large, 775). 
 
 An Act in Amendment of the Acts for the Punishment of Offences against the United States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States -of Ameiica in Congress assembled, That if any one or 
 more of the crew of any American ship or vessel on the high seas, or on 
 any other waters within the admiralty and maritime jurisdiction of the 
 United States, shall unlawfully, wilfully, and with force, or by fraud, 
 threats, or other intimidations, usurp the command of such ship or vessel 
 from the master or other lawful commanding officer thereof, or deprive 
 him of his authority and command on board thereof, or resist or prevent 
 him in the free and lawful exercise thereof, or transfer such authority and 
 command to any other person not lawfully entitled thereto, every such 
 person so offending, his aiders or abettors, shall be deemed guilty of a 
 revolt or mutiny and felony ; and shall, on conviction thereof, be punished 
 by fine not exceeding two thousand dollars, and by imprisonment and 
 confinement to hard labor not exceeding ten years, according to the nature 
 and aggravation of the offence. And the offence of making a revolt in a 
 ship, which now is, under and in virtue of the eighth section of the act of 
 Congress, passed the thirtieth day of April, in the year of our Lord one 
 thousand seven hundred and ninety, punishable as a capital offence, shall, 
 from and after the passage of the present act, be no longer punishable as a 
 capital offence, but shall be punished in the manner prescribed in the present 
 act, and not otherwise. 
 
 Sec. 2. And be it further enacted. That if any one or more of the crew 
 of any American ship or vessel on the high seas, or any other waters, 
 within the admiralty and maritime jurisdiction of the United Slates, shall 
 endeavor to make a revolt or mutiny on board such ship or vessel, or shall 
 combine, conspire,, or confederate with any other person or persons on 
 board to make such revolt or mutiny, or shall solicit, incite, or stir up any 
 other or others of the crew to disobey or resist the lawful orders of the 
 master, or other officer of such ship or vessel, or to refuse or neglect their 
 proper duty on board thereof, or to betray their proper trust therein, 
 or shall assemble with others in a tumultuous and mutinous manner, or 
 make a riot on board thereof, or shall unlawfully confine the master, or 
 other commanding officer thereof, every such person so offending shall, on 
 conviction thereof, be punished by fine, not exceeding one thousand dol- 
 lars, or by imprisonment not exceeding five years, or by both, according 
 to the nature and aggravation of the offence.
 
 600 APPENDIX. 
 
 Sec. 3. And he it further enacted. That if any master or other officer, of 
 any American ship or vessel on the high seas, or on any other waters within 
 the admiralty and maritime jurisdiction of the United States, shall from mal- 
 ice, hatred, or revenge, and witliout justifiable cause, beat, wound, or imprison 
 any one or more of the crew of such ship or vessel, or withhold from them 
 suitable food and nourishment, or inflict upon them any cruel and unusual 
 punishment, every such person so offending shall, on conviction thereof, be 
 punished by fine, not exceeding one thousand dollars, or by imprisonment 
 not exceeding five years, or by both, according to the nature and aggrava- 
 tion of the offence. 
 
 Sec. 4. A7id be it further enacted, That whenever any person indicted 
 for any offence against the United States, whether capital or otherwise, 
 shall upon his arraignment stand mute, or will not plead or answer thereto, 
 it shall be the duty of the court to enter the plea of not guilty on his be- 
 half, in the same manner as if he had pleaded not guilty thereto. And 
 when the party shall plead not guilty, or such plea shall be entered as 
 aforesaid, the cause shall be deemed at issue, and shall, without further 
 form or ceremony, be tried by a jury. And in all trials in capital cases, 
 if the party indicted shall peremptorily challenge above the number of 
 jurors allowed by law, such excess of challenges shall be disallowed by 
 the court, and the cause shall proceed for trial in the same manner as if 
 the same [said] challenges had not been made. 
 
 Sec. 5. And he it further enacted, That whenever any person shall be 
 convicted of any offence against the United States which is punishable by 
 fine and imprisonment, or by either, it shall be lawful for the court by 
 which the sentence is passed to order the sentence to be executed in any 
 house of correction, or house of reformation for juvenile delinquents, 
 within the State or district w^here such court is holden, the use of which 
 shall be allowed and authorized by the legislature of the State for such 
 purpose. And the expenses attendant upon the execution of such sen- 
 tence shall be paid by the United States. 
 
 ACT OF 1836, CHAPTER 55 (5 U. S. Stats, at Large, 16). 
 
 An Act in addition to the Act of the twenty-fourth of May, one thousand eight hundred and 
 twenty-eight, entitled " An Act to authorize the licensing of Vessels to be employed in the 
 Macktrel Fishery." ^ 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That vessels duly licensed 
 under the provisions of " An act to authorize the licensing of vessels to be 
 
 1 See Act of 1866, cli. 298, § 4.
 
 APPENDIX. 601 
 
 emploj-^ed in the mackerel fishery," passed May twenty-fourth, one thou- 
 sand eight hundred and twenty-eight shall not be deemed or taken to be 
 liable to the forfeitures imposed by the fifth and thirty-second sections of 
 the act of Congress, approved the eighteenth day of February, one thou- 
 sand seven hundred and ninety-three, entitled " An act for enrolling and 
 licensing ships or vessels to be employed in the coasting trade and fisheries, 
 and for regulating the same," in consequence of any such vessel, whilst 
 licensed as aforesaid, having been engaged in catching cod, or fish of any 
 other description whatever : Provided, however, That this act shall not be 
 deemed or considered as authorizing or entitling the owner or owners 
 of any vessel licensed for the mackerel fishery, to receive the bounty al- 
 lowed by law to vessels employed in the cod fishery. 
 
 ACT OF 1837, CHAPTER 21 (5 U. S. Stats, at Large, 153). 
 
 An Act to provide for the Enlistment of Boys for the Naval Service, and to extend the Term 
 of the Enlistment of Seamen. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That it shall be law- 
 ful to enlist boj's for the navy, with the consent of their parents or guardi- 
 ans, not being under thirteen, nor over eighteen years of age, to serve until 
 they shall arrive at the age of twenty-one years ; and it shall be lawful to 
 enlist other persons for the navy, to serve for a period not exceeding five 
 years, unless sooner discharged by direction of the President of the 
 United States ; and so much of an act entitled " An act to amend the act 
 entitled ' An act to amend the act authorizing the employment of an ad- 
 ditional naval force,' " approved fifteenth May, one thousand eight hundred 
 and twenty, as is inconsistent witli the provisions of this act, shall be, and 
 is hereby, repealed. 
 
 Sec. 2. And be it further enacted, That when the time of service of any 
 person enlisted for the navy shall expire, while he is on board any of the 
 public vessels of the United States, employed on foreign service, it shall 
 be the duty of the commanding officer of the fleet, squadron, or vessel, in 
 which such person may be, to send him to the United States in some public 
 or other vessel, unless his detention shall be essential to the public in- 
 terests, in which case the said officer may detain him until the vessel in 
 which he shall be serving shall return to the United States ; and it shall 
 be the duty of said officer, immediately to make report to the navy depart- 
 ment, of such detention and the causes thereof. 
 
 Sec. 3. And he it further enacted. That such persons as may be detained 
 after the expiration of their enlistment, under the next preceding section
 
 602 APPENDIX. 
 
 of this act, shall be subject, in all respects, to the laws and regulations for 
 the government of the navy, until their return to the United States ; and 
 all such persons as shall be so detained, and all such as shall voluntarily 
 re-enlist to serve until the return of the vessel in which they shall be 
 serving, and their regular discharge therefrom in the United States, shall, 
 vi'hile so detained and while so serving under their re-enlistment, x-eceive 
 an addition of one fourth to their former pay. 
 
 ACT OF 1837, CHAPTEE 22 (5 U. S. Stats, at Large, 153). ' 
 
 An Act concerning Pilots. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That it shall and may be lawful 
 for the master or commander of any vessel -coming into or going out of any 
 port situate upon waters, which are the boundary between two States, to 
 employ any pilot duly licensed or authorized by the laws of either of the 
 States bounded on the said waters, to pilot said vessel to or from said port, 
 any law, usage, or custom, to the contrary notwithstanding. 
 
 ACT OF 1837, CHAPTER 1 (5 U. S. Stats, at Large, 208). 
 
 An Act to authorize the President of the United States to cause the Public Vessels to cruise upon 
 the Coast in the Winter Season and to relieve Distressed Navigators. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the President of the 
 United States be, and hereby is, authorized to cause any suitable number 
 of public vessels, adapted to the purpose, to cruise upon the coast, in the 
 severe portion of the season, when the public service will allow of it, and 
 to afford such aid to distressed navigators as their circumstances and neces- 
 sities may require ; and such public vessels shall go to sea prepared fully to 
 render such assistance. 
 
 ACT OF 1838, CHAPTER 191 (.5 U. S. Stats, at Large, 304). 
 
 An Act to provide for the better Security of the Lives of Passengers on board of Vessels 
 propelled in whole or in part by Steam. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled. That it shall be the 
 duty of all owners of steamboats, or vessels propelled in whole or in part 
 by steam, on or before the first day of October, one thousand eight hun- 
 dred and thirty-eight to make a new enrolment of the same, under the
 
 APPENDIX. 603 
 
 existing laws of the United States, and take out from the collector or sur- 
 veyor of the port, as the case may be, where such vessel is enrolled, a new 
 license, under such conditions as are now imposed by law, and as shall be 
 imposed by this act. 
 
 Sec. 2. And be it further enacted, That it shall not be lawful for the 
 owner, master, or captain of any steamboat or vessel propelled in whole 
 or in part by steam, to transport any goods, wares, and merchandise, or 
 passengers, in or upon the bays, lakes, rivers, or other navigable waters 
 of the United States, from and after the said first day of October, one 
 thousand eight hundred and thirty-eight ; without having first obtained, 
 from the proper officer, a license under the existing laws, and without 
 having complied with the conditions imposed by this act ; and for each 
 and every violation of this section, the owner or owners of said vessel 
 shall forfeit and pay to the United States the sum of five hundred dollars, 
 one half for the use of the informer ; and for which sum or sums the 
 steamboat or vessel so engaged shall be liable, and may be seized and 
 proceeded against summarily, by way of libel, in any district court of the 
 United States having jurisdiction of the offence. 
 
 Sec. 3. A7id be it further enacted, That it shall be the duty of the 
 district judge of the United States, within whose district any ports of 
 entry or delivery may be, on the navigable waters, bays, lakes, and rivers 
 of the United States, upon the application of the master or owner of any 
 steamboat or vessel propelled in whole or in part by steam, to appoint,. 
 from time to time, one or more persons skilled and competent to make 
 inspections of such boats and vessels, and of the boilers and machinery 
 employed in the same, who shall not be interested in the manufacture of 
 steam engines, steamboat boilers, or other machinery belonging to steam 
 vessels, whose duty it shall be to make such inspection when called upon 
 for that purpose, and to give to the owner or master of such boat or ves- 
 sel duplicate certificates of such inspection ; such persons, before entering 
 upon the duties enjoined by this act, shall make and subscribe an oath or 
 affirmation before said district judge, or other officer duly authorized to 
 administer oaths, well, faithfully, and impartially to execute and perform 
 the services herein required of them. 
 
 Sec. 4. And be it further enacted. That the person or persons who 
 shall be called upon to inspect the hull of any steamboat or vessel, under 
 the provisions of this act, shall, after a thorough examination of the same, 
 give to the owner or master, as the case may be, a certificate, in which 
 shall be stated the age of the said boat or vessel, when and where origi- 
 nally built, and the length of time the same has been running. And he or 
 they shall also state whether, in his or their opinion, the said boat or vessel 
 is sound, and in all respects seaworthy, and fit to be used for the trans-
 
 604 APPENDIX. 
 
 portation of freight or passengers ; for which service, so performed upon 
 each and every boat or vessel, the inspectors shall each be paid and allowed 
 by said master or owner applying for such inspection the sum of five 
 dollars. 
 
 Sec. 5. And be it further eiiacted, That the person or persons who shall 
 be called upon to inspect the boilers and machinery of any steamboat or 
 vessel, under the provisions of this act, shall, after a thorough examination 
 of the same, make a certificate, in which he or they shall state his or their 
 opinion whether said boilers are sound and fit for use, together with the 
 age of said boilers ; and duplicates thereof shall be delivered to the owner 
 or master of such vessel, one of which it shall be the duty of the said 
 master and owner to deliver to the collector or surveyor of the port when- 
 ever he shall apply for a license, or for a renewal of a license ; the other 
 he shall cause to be posted up. and kept in some conspicuous part of said 
 boat, for the information of the public ; and for each and every inspection 
 so made, each of the said inspectors shall be paid by the said master or 
 owner applying the sum of five dollars. 
 
 Sec. 6. And he it further enacted, That it shall be the duty of the 
 owners and mastei's of steamboats to cause the inspection provided under 
 the fourth section of this act to be made at least once in every twelve 
 months, and the examination required by the fifth section, at least once 
 in every six months, and deliver to the collector or surveyor of the port 
 where his boat or vessel has been enrolled or licensed the certificate of 
 such inspection ; and, on a failure thereof, he or they shall forfeit the 
 license granted to such boat or vessel, and be subject to the same penalty 
 as though he had run said boat or vessel without having obtained such 
 license, to be recovered in like manner. And it shall be the duty of the 
 owners and masters of the steamboats licensed in pursuance of the pro- 
 visions of this act to employ on board of their respective boats a com- 
 petent number of experienced and skilful engineers, and, in case of neg- 
 lect to do so, the said owners and masters shall be held responsible for all 
 damages to the property of any passenger on board of any boat, occa- 
 sioned by an explosion of the boiler or any derangement of the engine or 
 machinery of any boat. 
 
 Sec. 7. And be it further enacted, That whenever the master of any 
 boat or vessel, or the person or persons charged Avith navigating said boat 
 or vessel, which is propelled in whole or in part by steam, shall stop the 
 motion or headway of said boat or vessel, or when said boat or vessel shall 
 be stopped for the purpose of discharging or taking in cargo, fuel, or pas- 
 sengers, he or they shall open the safety-valve, so as to keep the steam 
 down in said boiler as near as practicable to what it is when the said boat 
 or vessel is under headway, under the penalty of two hundred dollars for 
 each and every offence.
 
 APPENDIX. 605 
 
 Sec. 8. Aiid he it further enacted, Tliat it shall be the duty of the owner 
 and master of every steam vessel engaged in the transportation of freight or 
 passengers, at sea or on the lakes, Champlain, Ontario, Erie, Huron, 
 Superior, and Michigan, the tonnage of which vessel shall not exceed two 
 hundred tons, to provide and to carry with the said boat or vessel, upon 
 each and every voyage, two long-boats or yawls, each of which shall be 
 competent to carry at least twenty persons ; and where the tonnage of said 
 vessel shall exceed two hundred tons, it shall be the duty of the owner 
 and master to provide and carry, as aforesaid, not less than three long- 
 boats or yawls, of the same or larger dimensions ; and for every failure in 
 these particulars, the said master and owner shall forfeit and pay three 
 hundred dollars. 
 
 Sec. 9. And be it further enacted, That it shall be the duty of the master 
 and owner of every steam vessel employed on either of the lakes mentioned 
 in the last section, or on the sea, to provide, as a part of the necessary 
 furniture, a suction hose and fire-engine and hose suitable to be worked 
 on said boat in case of fire, and carry the same upon each and every 
 voyage, in good order ; and that iron rods or chains shall be employed and 
 used in the navigating of all steamboats, instead of wheel or tiller ropes ; 
 and for a failure to do which, they, and each of them, shall forfeit and pay 
 the sum of three hundred dollars. 
 
 Sec. 10. And he it further enacted, That it shall be the duty of the 
 master and owner of every steamboat, running between sunset and sun- 
 rise, to carry one or more signal lights, that may be seen by other boats 
 navigating the same waters, under the penalty of two hundred dollars. 
 
 Sec. 11. And be it further enacted, That the penalties imposed by this 
 act may be sued for and recovered in the name of the United States, in the 
 district or circuit court of such district or circuit where the ofi'ence shall 
 have been committed, or forfeiture incurred, or in which the owner or 
 master of said vessel may reside, one half to the use of the informer, and 
 the other to the use of the United States ; or the said penalty may be pros- 
 ecuted for by indictment in either of the said courts. 
 
 Sec. 12. And be it further enacted, That every captain, engineer, pilot, 
 or other person employed on board of any steamboat or vessel propelled in 
 whole or in part by steam, by whose misconduct, negligence, or inattention 
 to his or their respective duties, the life or lives of any person or persons 
 on board said vessel may be destroyed, shall be deemed guilty of man- 
 slaughter, and, upon conviction thereof before any circuit court in the 
 United States, shall be sentenced to confinement at hard labor for a period 
 not more than ten years. 
 
 Sec. 13. And he it further enacted, That in all suits and actions against 
 proprietors of steamboats for injuries arising to person or property from
 
 606 APPENDIX. 
 
 the bursting of the boiler of any steamboat, or the collapse of a flue, or 
 other injurious escape of steam the fact of such bursting, collapse, or in- 
 jurious escape of steam shall be taken as full prima facie evidence, suffi- 
 cient to charge the defendant, or those in his employment, with negligence, 
 until he shall show that no negligence has been committed by him or those 
 in his employnient 
 
 ACT'OF 1840, CHAPTER 6 (5 U. S. Stats, at Large, 370). 
 
 An Act tv cancel the Bonds given to secure Duties upon Vessels and their Cargoes, employed in 
 the Whale Fishery, and. to make Registers, lawful Papers for such Vessels. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That all vessels 
 which have cleared, or hereafter may clear, with registers for the purpose 
 of engaging in the whale fishery, shall be deemed to have lawful and suffi- 
 cient papers for such voyages, securing the privileges and rights of regis- 
 tered vessels, and the privileges and exemptions of vessels enrolled and 
 licensed for the fisheries ; and all vessels which have been enrolled and 
 licensed for like voyages shall have the same privileges and measure of 
 protection as if they had sailed with registers if such voyages are com- 
 pleted or until they are completed. 
 
 Sec. 2. And be it further enacted. That all the provisions of the first 
 section of the act, entitled " An act supplementary to the act concerning 
 consuls and vice-consuls, and for the further protection of American sea- 
 men," passed on the twenty-eighth day of February, Anno Domini 
 eighteen hundred and three, shall hereafter apply and be in full force as to 
 vessels engaged in the whale fishery in the same manner and to the same 
 extent as the same is now in force and applies to vessels bound on a 
 foreign voyage. 
 
 Sec. 3. And be it further enacted, That all forfeitures, fees, duties, and 
 charges of every description required of the crews of such vessels, or 
 assessed upon the vessels or cargoes, being the produce of such fishery, 
 because of a supposed insufficiency of a register to exempt them from such 
 claims, are hereby remitted ; and all bonds given for such cause are hereby 
 cancelled, and the secretary of the treasury is hereby required to refund 
 all such moneys as have been, or which may be, paid into the treasury, to 
 the rightful claimants, out of the revenues in his hands.
 
 APPENDIX. 607 
 
 ACT OF 1840, CHAPTER 48 (5 U. S. Stats, at Large, 394). 
 
 An Act in addition to the several Acts regulating the Shipment and Discharge of Seamen, 
 and the Duties of Consuls. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, As follows : 
 
 First. The duplicate list of the crew of any vessel bound on a foreign 
 voyage, made out pursuant to the act of Februaiy twenty-eighth, eighteen 
 hundred and three, shall be a fair copy in one uniform handwriting, with- 
 out erasure or interlineation. 
 
 Second. It shall be the duty of the owners of every such vessel to ob- 
 tain from the collector of the customs of the district from which the clear- 
 ance is made, a true and certified copy of the shipping articles, containing 
 the names of the crew, which shall be written in a uniform hand, without 
 erasures or interlineations. 
 
 Third. These documents which shall be deemed to contain all the con- 
 ditions of contract with the crew as to their service, pay, voyage, and all 
 other things, shall be produced by the master, and laid before any consul, 
 or other commercial agent of the United States, whenever he may deem 
 their contents necessary to enable him to discharge the duties imposed 
 upon him by law toward any mariner applying to him for his aid or 
 assistance. 
 
 Fourth. All interlineations, erasures, or writing in a hand different from 
 that in which such duplicates were originally made, shall be deemed fraud- 
 ulent alterations, working no change in such papers, unless satisfactorily 
 explained in a manner consistent with innocent purposes and the provisions 
 of law which guard the rights of mariners. 
 
 Fifth. Any consul of the United States, and in case there is none resi- 
 dent at a foreign port, or he is unable to discharge his duties, then any 
 commercial agent of the United States authorized to perform such duties, 
 may, upon the application of both the master and any mariner of the ves- 
 sel under his command, discharge such mariner, if he thinks it expedient, 
 without requiring the payment of three months' wages, under the provisions 
 of the act of the twenty-eighth of February, eighteen hundi-ed and three, 
 or any other sum of money.^ 
 
 Sixth. Any consul, or other commercial agent, may also, on such joint 
 application, discharge any mariner on such terms as will, in his judgment, 
 save the United States from the liability to support such mariner, if the 
 master gives his voluntary assent to such terms, and conforms thereto.^ 
 
 Seventh. When a mariner is so discharged, the officer discliarging him 
 
 * The paragraphs 5, 6, and 7 are repealed by Act 1856, c. 127, § 33.
 
 608 APPENDIX. 
 
 shall make an oflBclal entry thereof upon the list of the crew and the ship- 
 ping articles. ^ 
 
 Eighth. Whenever any master shall ship a mariner in a foreign port, he 
 shall forthwith take the list of his crew and the duplicate of the shipping 
 articles to the consul, or person who discharges the duties of the office at 
 tRat port, who shall make the proper entries thereon, setting forth the con- 
 tract, and describing the person of the mariner ; and thereupon the bond 
 originally given for the return of the men shall embrace each person so 
 shipped. 
 
 Ninth. When any mariner shall complain that the voyage is continued 
 contrary to his agreement, or that he has fulfilled his contract, the consul, 
 or other commercial agent performing like duties, may examine into the 
 same by an inspection of the articles of agreement ; and if on the face of 
 them he finds the complaint to be well founded, he shall discharge the 
 mariner, if he desires it, and require of the master an advance, beyond the 
 lawful claims of such mariner, of three months' wages, as provided in the 
 act of February twenty-eighth, eighteen hundred and three ; and in case 
 the lawful claims of such mariner are not paid upon his discharge, the 
 arrears shall from that time *bear an interest of twenty per centum : 
 Provided, however, If the consul or other commercial agent shall be satis- 
 fied the contract has expired, or the voyage been protracted by circum- 
 stances beyond the control of the master, and without any design on his 
 part to violate the articles of shipment, then he may, if he deems it just, 
 discharge the mariner without exacting the three months' additional pay. 
 
 Tenth. All shipments of seamen, made contrary to the provisions of this 
 and other acts of Congress, shall be void ; and any seaman so shipped may 
 leave the service at any time, and demand the highest rate of wages paid 
 to any seaman shipped for the voyage, or tlie sum agreed to be given him 
 at his shipment. 
 
 Eleventh. It shall be the duty of consuls and commercial agents to re- 
 claim deserters and di^countenanee insubordination by every means within 
 their power ; and where the local authorities can be usefully employed for 
 that purpose, to lend their aid and use their exertions to that end in the 
 most effectual manner. 
 
 Twelfth. If the first officer, or any officer, and a majority of the crew 
 of any vessel shall make complaint in writing that she is in an unsuitable 
 condition to go to sea, because she is leaky, or insufficiently supplied with 
 sails, rigging, anchors, or any other equipment, or that the crew is insuffi- 
 cient to man her, or that her provisions, stores, and supplies are not, or 
 have not been, during the voyage sufficient and wholesome, thereupon, in 
 any of these or like cases, the consul or commercial agent who may dis- 
 
 ^ The paragraphs 5, 6, and 7 are repealed by Act of 1856, c. 127, § 33.
 
 APPENDIX. 609 
 
 charge any duties of a consul shall appoint two disinterested, competent 
 practical men, acquainted with maritime affairs, to examine into the causes 
 of complaint, who shall in their report state what defects and deficiencies, 
 if any, they find to be well founded, as well as what, in their judgment, 
 ought to be done to put the vessel in order for the continuance of her 
 voyage. ^ 
 
 Thirteenth. The inspectors so appointed shall have full power to ex- 
 amine the vessel and whatever is aboard of her, so far as is pertinent to 
 their inquiry, and also to hear and receive any other proofs which the ends 
 of justice may require, and if, upon a view of the whole proceedings, the 
 consul, or other commercial agent shall be satisfied therewith, he may 
 approve the whole or any part of the report, and shall certify such ap- 
 proval, and if he dissents, shall also certify his reasons for so dissenting. 
 
 Fourteenth. The inspectors in their report shall also state whether, in 
 their opinion, the vessel was sent to sea unsuitably provided in any impor- 
 tant or essential particular, by neglect or design, or through mistake or 
 accident, and in case it was by neglect or design, and the consul or other 
 commercial agent approves of such finding, he shall discharge such of the 
 crew as require it, each of whom shall be entitled to three months' pay in 
 addition to his wages to the time of discharge ; but, if in the opinion of 
 the inspectors the defects or deficiencies found to exist have been the result 
 of mistake or accident, and could not, in the exercise of ordinary care, 
 have been known and provided against before the sailing of the vessel, 
 and the master shall, in a reasonable time, remove or remedy the causes of 
 complaint, then the crew shall remain and discharge their duty ; otherwise 
 they shall, upon their request, be discharged, and receive each one month's 
 wages in addition to the pay up to the time of discharge. 
 
 Fifteenth. The master shall pay all such reasonable charges in the 
 premises as shall be officially certified to him under the hand of the con- 
 sul or other commercial agent, but in case the inspectors report that the 
 complaint is without any good and sufficient cause, the master may retain 
 from the wages of the complainants, in proportion to the pay of each, the 
 amount of such charges, with such reasonable damages for detention on 
 that account as the consul or other commercial agent directing the inquiry 
 may officially certify. 
 
 Sixteenth. The crew of any vessel shall have the fullest liberty to lay 
 their complaints before the consul or commercial agent in any foreign port, 
 and shall in no respect be restrained or hindered therein by the master or 
 any officer, unless some sufficient and valid objection exist against their 
 landing ; in which case, if any mariner desire to see the consul or com- 
 
 1 See act of 1850, c. 27, § 6. ' 
 TOL. II. 39
 
 610 APPENDIX. 
 
 mercial agent, it shall be the duty of the master to acquaint him with it 
 forthwitli ; stating the reason why the naariner is not permitted to land, 
 and that he is desired to come on board ; whereupon it shall be the duty 
 of such consul or commercial agent to repair on board and inquire into the 
 causes of the complaint, and to proceed thereon as this act directs. 
 
 Seventeenth. In all cases where deserters are apprehended, the consul 
 or commercial agent shall inquire into the facts ; and, if satisfied that the 
 desertion was caused by unusual or cruel treatment, the mariner shall be 
 discharged, and receive, in addition to his wages to the time of the dis- 
 charge, three months' pay ; and the officer discharging him shall enter 
 upon the crew-list and shipping articles the cause of discharge, and the 
 particulars in which the cruelty or unusual treatment consisted, and sub- 
 scribe his name thereto officially. 
 
 Eighteenth. If any consul or commercial agent shall neglect or omit to 
 perform, seasonably, the duties hereby imposed upon him, or shall be 
 guilty of any malversation or abuse of power, he shall be liable to any 
 injured person for all damage occasioned thereby ; and for all malversation 
 and corrupt conduct in office, he shall be liable to indictment, and, on con- 
 viction by any court of competent jurisdiction, shall be fined not less than 
 one nor more than ten thousand dollars, and be imprisoned not less than 
 one nor more than five years. 
 
 Nineteenth. If any master of a vessel shall proceed on a foreign voyage 
 without the documents herein required, or refuse to produce them when 
 required, or to perform the duties imposed by this act, or shall violate the 
 provisions thereof, he shall be liable to each and every individual injured 
 thereby, in damages, and shall, in addition thereto, be liable to pay a fine 
 of one hundred dollars for each and every offence, to be recovered by any 
 person suing therefor in any court of the United States in the district 
 where such delinquent may reside or be found. 
 
 Twentieth. It shall be the duty of the boarding officer to report all vio- 
 lations of this act to the collector of the port where any vessel may arrive, 
 and the collector shall report the same to the secretary of the treasury and 
 to the attorney of the United States in his district. 
 
 Twenty-first. This act shall be in force from and after the first day of 
 October next ; and shall not apply to vessels which shall have sailed from 
 ports of the United States before that time.
 
 APPENDIX. 611 
 
 ACT OF 1842, CHAPTER 188 (5 U. S. Stats, at Large, 516). 
 
 An Act further supplementary to an Act, entitled " An Act to establish the Judicial Courts 
 of the United States," passed the twenty fourth of September, seventeen hundred and eighty- 
 nine. 
 
 Section 1. £e it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the commis- 
 sioners who now are, or hereafter may be, appointed by the circuit courts 
 of the United States to take acknowledgments of bail and affidavits, and 
 also to take depositions of witnesses in civil causes, shall and may exercise 
 all the powers that any justice of the peace, or other magistrate, of any of 
 the United States may now exercise in respect to oflfenders for any crime 
 or offence against the United States, by arresting, imprisoning, or bailing 
 the same, under and by virtue of the thirty-third section of the act of the 
 twenty-fourth of September, Anno Domini seventeen hundred and eighty- 
 nine, entitled " An act to establish the judicial courts of the United States ; " 
 and who shall and may exercise all the powers that any judge or justice of 
 the peace may exercise under and in virtue of the sixth section of the act 
 passed the twentieth of July, Anno Domini seventeen hundred and ninety, 
 entitled " An act for the government and regulation of seamen in the 
 merchant service." 
 
 Sec. 2. And he it further enacted, That in all hearings before any justice 
 or judge of the United States, or any commissioner appointed as aforesaid, 
 under and in virtue of the said thirty-third section of the act entitled " An 
 act to establish the judicial courts of the United States," it shall be lawful 
 for such justice, judge, or commissioner, where the crime or offence is 
 charged to have been committed on the high seas or elsewhere within the 
 admiralty and maritime jurisdiction of the United States, in his discretion 
 to require a recognizance of any witness produced in behalf of the accused, 
 with such surety or sureties as he may judge necessary, as well as in behalf 
 of the United States, for their appearing and giving testimony, at the trial 
 of the cause, whose testimony, in his opinion, is important for the purposes 
 of justice at the trial of the cause, and is in danger of being otherwise lost ; 
 and such witnesses shall be entitled to receive from the United States the 
 usual compensation allowed to Government witnesses for their detention 
 and attendance, if they shall appear and be ready to give testimony at the 
 trial. 
 
 Sec. 3. And be it farther enacted, That the district courts of the United 
 States shall have concurrent jurisdiction with the circuit courts of all 
 crimes and offences against the United States, the punishment of which is 
 not capital. And in such of the districts where the business of the court
 
 612 APPENDIX. 
 
 may require it to be done for the purposes of justice, and to prevent undue 
 expenses and delays in the trial of criminal causes, the said district courts 
 shall hold monthly adjournments of the regular terms thereof for the trial 
 and hearing of such causes. 
 
 Sec. 4. And be it further enacted, That, in lieu of the punishment now 
 prescribed by the sixteenth section of the act of Congress, entitled, " An 
 act for the punishment of certain crimes against the United States," passed 
 on the thirtieth day of April, Anno Domini one thousand seven hundred 
 and ninety, for the offences in the said section mentioned, the punishment 
 of the offender, upon conviction thereof, shall be by fine not exceeding one 
 thousand dollars, or by imprisonment not exceeding one year, or by both, 
 according to the nature and aggravation of the offence. 
 
 Sec. 5. And he it further enacted, That the district courts as courts of 
 admiralty, and the circuit courts as courts of equity, shall be deemed always 
 open for the purpose of filing libels, bills, petitions, ansvpers, pleas, and 
 other pleadings, for issuing and returning mesne and final process and com- 
 missions, and for making and directing all interlocutory motions, orders, 
 rules, and other proceedings whatever, preparatory to the hearing of all 
 causes pending therein upon their merits. And it shall be competent for 
 any judge of the court, upon reasonable notice to the parties, in the clerk's 
 office or at chambers, and in vacation as well as in term, to make and 
 direct, and award all such process, commissions and interlocutory orders, 
 rules, and other proceedings, Avhenever the same are not grautable of course 
 according to the rules and practice of the court. 
 
 Sec. 6. And be it further enacted. That the Supreme Court shall have 
 full power and authority, from time to time, to prescribe, and regulate, and 
 alter the forms of writs and other process to be used and issued in the dis- 
 trict and circuit courts of the United States, and the forms and modes of 
 framing and filing libels, bills, answers, and other proceedings and pleadings, 
 in suits at common law or in admiralty and in equity pending in the said 
 courts, and also the forms and modes of taking and obtaining evidence, 
 and of obtaining discovery, and generally the forms and modes of proceed- 
 ing to obtain relief, and the forms and modes of drawing up, entering, and 
 enrolling decrees, and the forms and modes of proceeding before trustees 
 appointed by the court, and generally to regulate the whole practice of the 
 said courts, so as to prevent delays, and to promote brevity and succinct- 
 ness in all pleadings and proceedings therein, and to abolish all unneces- 
 sary costs and expenses in any suit therein. 
 
 Sec. 7. And be it further enacted, That, for the purpose of further dim- 
 inishing the costs and expenses in suits and proceedings in the said courts, 
 the Supreme Court shall have full power and authority, from time to time, 
 to make and prescribe regulations to the said district and circuit courts, as
 
 APPENDIX. 613 
 
 to the taxation and payment of costs in all suits and proceedings therein ; 
 and to make and prescribe a table of the various items of costs which 
 shall be taxable and allowed in all suits, to the parties, their attorneys, 
 solicitors, and proctors, to the clerk of the court, to the marshal of the dis- 
 trict, and his deputies, and other officers serving process, to witnesses, and 
 to all other persons whose services are usually taxable in bills of costs. 
 And the items so stated in the said table, and none others, shall be taxable 
 or allowed in bills of costs ; and they shall be fixed as low as they reason- 
 ably can be, with a due regard to the nature of the duties and services 
 which shall be performed by the various officers and persons aforesaid, and 
 shall in no case exceed the costs and expenses now authorized, where the 
 same are provided for by existing laws. 
 
 Sec. 8. And be it further enacted, That on all judgments in civil cases, 
 hereafter recovered in the circuit or district courts of the United States, 
 interest shall be allowed, and may be levied by the marshal, under process 
 of execution issued thereon, in all cases where, by the law of the State in 
 which such circuit or district court shall be held, interest may be levied 
 under process of execution on judgments recovered in the courts of such. 
 State, to be calculated from the date of the judgment, and at such rate per 
 annum, as is allowed by law, on judgments recovered in the courts of such 
 State. 
 
 ACT OF 1843, CHAPTER 49 (5 U. S. Stats, at Large, 602). 
 
 An Act amendatory of" An Act for the Relief of sick and disabled Seamen." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the provision and penalties 
 of the act of the sixteenth of July, one thousand seven hundred and 
 ninety-eight, entitled " An act for the relief of sick and disabled seamen," 
 be, and the same hereby are, extended to the masters, owners, and seamen 
 of registered vessels employed in carrying on the coasting trade ; and the 
 secretary of the treasury is authorized and directed to issue such instruc- 
 tions to the collectors of the various ports as shall secure the collection of 
 hospital money from said seamen, masters, and ownei's. 
 
 ACT OF 1843, CHAPTER 94 (5 U. S. Stats, at Large, 626). 
 
 An Act to modify the Act entitled "An Act to provide for the better security of the Lives of 
 Passengers on board of Vessels propelled in whole or in part by Steam, approved July 
 seventh, eighteen hundred and thiiiy-eight." 
 
 Section 1. -Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That every boat or
 
 614 APPENDIX. 
 
 vessel which existing laws require to be registered, and which is propelled 
 in whole or in part by steam, shall be provided with such additional appa- 
 ratus, or means as, in the opinion of the inspector of steamboats, shall be 
 requisite to steer the boat or vessel, to be located in such part of the boat 
 or vessel as the inspector may deem best to enable the officers and crew to 
 steer and control the boat or vessel, in case the pilot or man at the wheel is 
 driven from the same by fire ; and no boat or vessel, exclusively propelled 
 by steam, shall be registered, after the passage of this act, unless the owner, 
 master, or other proper person, shall file with the collector, or other proper 
 officer, the certificate of the inspector, stating that suitable means have 
 been provided to steer the boat or vessel, in case the pilot or man at the 
 wheel is driven therefrom by fire. 
 
 Sec. 2. And be it further enacted. That it shall be lawful in all vessels 
 or boats propelled in whole or in part by steam, and which shall be pro- 
 vided with additional apparatus or means to steer the same, as required by 
 the first section of this act, to use wheel or tiller ropes, composed of hemp 
 or other good and sufficient material around the barrel or axle of the wheel, 
 and to a distance not exceeding twenty-two feet therefrom, and also in con- 
 necting the tiller or rudder yoke with iron rods or chains used for working 
 the rudder : Provided, That no more rope for this purpose shall be used 
 than is sufficient to extend from the connecting points of the tiller or rudder 
 yoke placed in any working position beyond the nearest blocks or rollers, 
 and give sufficient play to work the ropes on such blocks or rollers : And 
 provided, further, That there shall be chains extending the whole distance 
 of the ropes, so connected with the tiller or" rudder yoke, and attached or 
 fastened to the tiller or rudder yoke, and the iron chains or rods extending 
 towards the wheel, in such manner as will take immediate eflfect, and work 
 the rudder in case the ropes are burnt or otherwise rendered useless. 
 
 Sec. 3. And be it further enacted, That the master and ownei*, and all 
 all others interested in vessels navigating Lakes Champlain, Ontario, Erie, 
 Huron, Superior, and Michigan, or any of them, and which are propelled 
 by sails and Ericcson's propeller, and used exclusively in carrying freight, 
 shall from and after the passage of this act, be exempt from liability or fine 
 for failing to provide, as a part of the necessary furniture of such vessel, a 
 suction hose and fire engine and hose suitable to be worked on such vessel 
 in case of fire, or more than one long boat or yawl. 
 
 Sec. 4. And be it further enacted. That it shall be lawful for the court 
 before which any suit, information, or indictment is or shall be pending for 
 the violation, before the passage of this act, of so much of the ninth section 
 of the act aforesaid as requires " that iron rods or chains shall be em- 
 ployed and used in the navigation of all steamboats, instead of wheel and 
 tiller ropes," to order such suit, information, or indictment to be discon-
 
 APPENDIX. 615 
 
 tinued, on such terms as to costs as the court shall judge to be just and 
 reasonable : Provided, That the defendant or defendants in such prosecu- 
 tion shall cause it to appear, by affidavit or otherwise, to the satisfaction of 
 the court, that he or they had failed to use iron rods or chains in the navi- 
 gation of his or their boat or boats, from a well-grounded apprehension 
 that such rods or chains could not be employed for the purpose aforesaid 
 with safety. 
 
 Sec. 5. And he it further enacted, That in execution of the authority 
 vested in him by the second section of the joint resolution " authorizing 
 experiments to be made for the purpose of testing Samuel Colt's sub- 
 marine battery and for other purposes," approved August thirty-first, one 
 thousand eight hundred and forty-two, the secretary of the navy shall 
 appoint a board of examiners, consisting of three persons, of thorough 
 knowledge as to the structure and use of the steam-engine, whose duty it 
 shall be to make experimental trials of such inventions and plans designed 
 to prevent the explosion of steam boilers and collapsing of flues as they 
 may deem worthy of examination, and report the result of their experi- 
 ments, with an expression of their opinion as to the relative merits and 
 efficacy of such inventions and plans, which report the secretary shall 
 cause to be laid before Congress, at its next session. It shall also be the 
 duty of said examiners to examine and report the relative strength of 
 copper and iron boilers of equal thickness, and what amount of steam to 
 the square inch each, when sound, is capable of working with safety ; and 
 whether hydrostatic pressure, or what other plan is best for testing the 
 strength of boilers under the inspection laws ; and what limitations as to 
 the force or pressure of steam to the square inch, in proportion to the 
 ascertained capacity of a boiler to resist, it would be proper to establish by 
 law for the more certain prevention of explosions. 
 
 Sec. 6. And be it further enacted, That so much of the act aforesaid as 
 is inconsistent with the provisions of this act shaU be, and the same is 
 hereby, repealed. 
 
 ACT OF 1845, CHAPTER. 17 (5 U. S. Stats, at Large, 725). 
 
 An Act to amend the Act entitled "An Act to provide for the Enlistment of Boys for the Naval 
 Service, and to extend the Term of Enlistment of Seamen." 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled. That, from and after 
 the passage of this act, the provisions of the second and third sections of 
 the act entitled, " An act to provide for the enlistment of boys for the 
 naval service, and to extend the term of the enlistment of seamen," ap- 
 proved March second, one thousand eight hundred and thirty-seven, which
 
 616 APPENDIX. 
 
 authorize and provide for the detention of any person enlisted for the navy 
 after the expiration of the enlistment, until the return of such person to 
 the United States, shall be understood and construed to authorize and pro- 
 vide for the detention of such person until the arrival of the vessel in 
 which he shall be so detained at a port of the United States, and until he shall 
 have received his regular discharge by order of the secretary of the navy : 
 Provided, That such detention shall not exceed the term of thirty days from 
 the time of the arrival of the said vessel in a port of the United States. 
 
 Sec. 2. And be it further enacted, That the commanding officer of any 
 vessel, squadron, or fleet of the navy of the United States, when upon the 
 high seas, or in any foreign port where there is no resident consul of the 
 United States, shall be and is hereby authorized and empowered to exercise 
 all the powers of a consul in relation to mariners of the United States. 
 
 ACT OF 1845, CHAPTER 20 (5 U. S. Stats, at Large, 726). 
 
 An Act extending the Jurisdiction of the District Courts to certain Cases, upon the Lakes 
 and Navigable Waters connecting the same. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled. That the disti'ict 
 courts of the United States shall have, possess, and exercise the same 
 jurisdiction in matters of contract and tort, arising in, upon, or concerning 
 steamboats and other vessels of twenty tons burden and upwards, enrolled 
 and licensed for the coasting trade, and at the time employed in business 
 of commerce and navigation between ports and places in different States 
 and Territories upon the lakes and navigable waters connecting said lakes, 
 as is now possessed and exercised by the said courts in cases of the like 
 steamboats and other vessels employed in navigation and commerce upon 
 the high seas, or tide waters, within the admiralty and maritime jurisdic- 
 tion of the United States ; and in all suits brought in such courts in all 
 such matters of contract or tort, the remedies, and the forms of process, 
 and the modes of proceeding, shall be the same as are or may be used by 
 such courts in cases of admiralty and maritime jurisdiction ; and the 
 maritime law of the United States, so far as the same is or may be 
 applicable thereto, shall constitute the rule of decision in such suits, in 
 the same manner, and to the same extent, and with the same equities, as 
 it now does in cases of admii-alty and maritime jurisdiction ; saving, how- 
 ever, to the parties the right of trial by jury of all facts put in issue in 
 such suits, where either party shall require it; and saving also to the 
 parties the right of a concurrent remedy at the common law, where it is 
 competent to give it, and any concurrent remedy which may be given by
 
 APPENDIX. 617 
 
 the State laws, where such steamer or other vessel is employed in such 
 business of commerce and navigation. 
 
 ACT OF 1846, CHAPTER 60 (9 U. S. Stats, at Large, 38). 
 An Act to exempt Canal Boats from the Payment of Fees and Hospital Money. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the owner or owners, 
 master or captain, or other persons employed in navigating canal boats with- 
 out masts or steam-power, now by law required to be registered, licensed, or 
 enrolled and licensed, shall not be required to pay any marine hospital tax 
 or money ; nor shall the persons employed to navigate such boats receive 
 any benefit or advantage from the marine hospital fund ; nor shall such 
 owner or owners, master or captain, or other persons, be required to pay 
 fees, or make any compensation for such register, license, or enrolment 
 and license, nor shall any such boat be subject to be libelled in any of the 
 United States courts for the wages of any person or persons who may be 
 employed on board thereof, or in navigating the same. 
 
 Sec. 2. And be it further enacted, That all acts, and parts of acts, repug- 
 nant to the provisions of this act, be, and the same ai'e hereby, repealed. 
 
 ACT OF 1846, CHAPTER 98 (9 U. S. Stats, at Large, 72). 
 
 An Act to regulate the Proceedings in the Circuit and District Courts of the United States, 
 
 and for other Purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the Circuit 
 Court of the United States for the Southern District of New York shall 
 hereafter be held on the third Monday in October, instead of the last 
 Monday in November ; and that all writs, pleas, suits, recognizances, 
 indictments, and all other proceedings, civil and criminal, shall be return- 
 able to and have day in court, and shall be heard, tried, and proceeded 
 with, by the said court, in the same manner as might and ought to have 
 been done, if the court had been held at the time heretofore directed by 
 law ; and it is further provided, that the term of the Circuit Court ap- 
 pointed by law to be held on the last Monday in July, in each year, in said 
 district, shall not hereafter be holden. 
 
 Sec. 2. And be it further enacted. That whenever the district attorney 
 shall deem it necessary, it shall be lawful for any Circuit Court, in session, 
 by order entered on its minutes, to remit to the next term or session of 
 the District Court of the same district any indictment pending in the said
 
 618 APPENDIX, 
 
 Circuit Court, when the offence or offences therein charged may be cog- 
 nizable by the said District Court ; and in lilie manner it shall be lawful 
 for any District Court to remit to the next term or session of the Cii'cuit 
 Court of the same district any indictment pending in the said District 
 Court ; and such remission shall carry with it all recognizances, processes, 
 and proceedings pending in the case in the court from which the remission 
 is made ; and the court to which such remission is made shall, after the 
 order of remission is filed therein, act and proceed in the case as if the 
 indictment, and all other proceedings in the same, had been originated in 
 said court. 
 
 Sec. 3. And he it further enacted, That it shall be lawful for the grand 
 juries impanelled and sworn in any Distinct Court to take cognizance of 
 all crimes and offences within the jurisdiction of the said Cii'cuit and 
 District Courts, and every indictment for a capital offence, presented to the 
 District Court, shall, by order entered on the minutes of the court, be 
 remitted to the next term and session of the Circuit Court, together with 
 all recognizances taken therein ; and on filing such order and indictment 
 with the clerk of said Circuit Court, that court shall thereafter proceed 
 thereupon, the same as if the indictment had been originally found and 
 presented in said court ; and the said District Court may, moreover, in 
 like manner, remit to the Circuit Court any indictment pending in said 
 District Court, when, in the opinion of the court, difficult and important 
 questions of law are involved in the case ; and the proceedings thereupon 
 shall thereafter be the same in the Circuit Court as if such indictment had 
 been originally found and presented therein. That no grand jury shall 
 hereafter be summoned to attend any Circuit or District Court of the 
 United States, unless the judge of such District Court, or one of the 
 judges of such Circuit Court, shall, in his own discretion, or upon a notifi- 
 cation by the district attorney that such jury will be needed, order a venire 
 to be issued therefor : Provided, That nothing herein shall prevent either 
 of said courts in term fi'om directing a grand jury to be summoned and im- 
 panelled, whenever, in its judgment, it may be proper to do so, and at 
 such time as it may direct : And provided further, That nothing herein 
 shall operate to extend beyond what the law now permits the impiuson- 
 ment before indictment found of an individual accused of a crime or 
 offence, or the time during which an individual thus accused may be held 
 under recognizance before indictment found. 
 
 Sec. 4. And he it further enacted, That any party charged with a crim- 
 inal offence, and admitted to bail, may, in vacation, be arrested by his bail, 
 and delivered to the marshal or his deputy, before any judge or other 
 officer having power to commit for such offence ; and at the request of 
 such bail, the judge or other officer shall recommit the party so arrested
 
 APPENDIX. 619 
 
 to the custody of the marshal, and indorse on the recognizance, or cer- 
 tified copy thereof, the discharge and exoneratur of such hail ; and the 
 party so committed shall therefrom be held in custody until discharged by 
 due course of law. 
 
 Sec. 5. A^id he it further enacted, That if any captain, or other oflBcer 
 or mariner, of a ship or vessel on the high seas, or any other waters within 
 the admiralty and maritime jurisdiction of the United States, shall pirati- 
 cally or feloniously run away with such ship or vessel, or any goods or 
 merchandise on board such ship or vessel to the value of fifty dollars, or 
 yield up such ship or vessel voluntarily to any pirate, every such person 
 so offending shall be deemed guilty of felony, and, on conviction thereof, 
 shall be punished by fine not exceeding ten thousand dollars, or by im- 
 prisonment not exceeding ten years, or both, according to the nature and 
 aggravation of the offence. 
 
 Sec. 6. And he it further enacted, That upon the necessary proof being 
 made to any judge of the United States, or other magistrate having author- 
 ity to commit on criminal charges against the laws of the United States, 
 that a person previously admitted to bail on any such criminal charge is 
 about to abscond, and that his bail is insufficient, it shall and may be law- 
 ful for any such judge or magistrate to require such person to give better 
 security, or, for default thereof, to cause him to be committed to prison ; 
 and, to that end, an order for his arrest may be indorsed on the former 
 commitment, or a new warrant therefor may be issued by such judge or 
 magistrate, setting forth the cause thereof. 
 
 Sec. 7. And he it further enacted, That, on the application of any attor- 
 ney of the United States for any district, and upon satisfactory proof of 
 the materiality of the testimony of any person who shall be a competent 
 witness, and whose testimony shall, in the opinion of any judge of the 
 United States, be necessary upon the trial of a,ny criminal cause or pro- 
 ceeding in which the United States shall be a party or interested, any such 
 judge may compel such person, so required or deemed by him necessary 
 as a witness, to give recognizance, with or without sureties in his discre- 
 tion, to appear on the trial of said cause or proceeding and give his testi- 
 mony therein ; and, for that purpose, the said judge may issue a warrant ' 
 against such person, under his hand, with or without seal, directed to the 
 marshal or other officer authorized to execute criminal or civil process in 
 behalf of the United States, to arrest such person and carry him before 
 such judge. And in case the person so arrested shall neglect or refuse to 
 give said recognizance in the manner required by said judge, the said 
 judge may issue a warrant of commitment against such person, which 
 shall be delivered to said officer, whose duty it shall be to convey such 
 person to the prison mentioned in said mittimus. And the said person
 
 620 APPENDIX. 
 
 shall remain in confinement until he shall be removed to the court for the 
 purpose of giving his testimony, or until he shall have given the recogni- 
 zance required by said judge. 
 
 Sec. 8. And be it further enacted, That so much of the act entitled " An 
 Act to increase and regulate the Terms of the Circuit and District Courts 
 for the Northern District of New York," passed July seventh, eighteen 
 hundred and thirty-eight, as requires all issues of fact in the said Circuit 
 Court in which the cause of action shall have arisen west of the line in 
 the said act for that purpose designated to be tried at -the term of said 
 Circuit Court to be held at Canandaigua, and all issues of fact in the said 
 court which shall have arisen east of the said line to be tried at Albany, 
 be, and the same is hereby, repealed. And that, in addition to the courts 
 now provided by law to be held in the Northern District of New York, a 
 stated session of the Circuit Court of the United States for said Northern 
 District shall be held annnally at the City Hall, in the city of Albany, on 
 the third Tuesday of May. 
 
 Sec. 9. Aiid he it further enacted, That no process issued or proceedings 
 pending in either of the said courts shall be avoided or impaired by the 
 change hereby made in the time and place of holding such court ; but all 
 process, bail bonds, and recognizances, returnable at either of the times 
 and places hereby altered, shall be deemed and held to be returnable at 
 the time and place herein designated in lieu thereof, in the same manner 
 as if the same had in terms been made so returnable, and shall have full 
 effect accordingly. And all continuances may be made to conform to the 
 provisions of this act. 
 
 Sec. 10. And he it further enacted. That hereafter a term of the Dis- 
 trict Court for the Northern District of New York shall be held in the 
 village of Auburn, on the third Tuesday in August in each year. And it 
 is further provided, That the Term of the District Court now required by 
 law to be held at the city of Buffalo, on the second Tuesday of October in 
 each year, shall hereafter be held on the second Tuesday of November in 
 each year. 
 
 Sec. 11. And be it further enacted, That, whenever any indictment shall 
 be pending in any court of the United States, and any defendant thereto 
 shall make an affidavit setting forth that there are witnesses whose evi- 
 dence is material to his defence, and that he cannot safely go to trial with- 
 out them, what he expects to prove by each of them, that they are within 
 the district in which the court is held, or within one hundred miles of the 
 place of trial, and that he is not possessed of sufficient means, and is 
 actually unable to pay the fees of such witnesses, the court in term, or 
 any judge thereof in vacation, may, if it appear proper to do so, order that 
 such witnesses be subpa3naed, if found within the limits aforesaid ; and in
 
 APPENDIX. 621 
 
 such case, the costs incurred by such process, and the fees of such wit- 
 nesses shall be paid in the same manner that similar costs and fees are 
 paid in case of witnesses subpoenaed in behalf of the United States. 
 
 Sec. 12. Ajid be it further enacted, That all acts and parts of acts in- 
 consistent with the provisions of this act shall be, and the same are hereby, 
 repealed : Provided, nevertheless, That they shall be and remain in full 
 force for the punishment of any crime or offence committed before the 
 passing of this act. 
 
 ACT OF 1847, CHAPTER 51 ( 9 U. S. Stats, at Large, 175). 
 
 An Act to provide for the Punishment of Piracy in certain Cases. 
 
 Beit enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That any subject or citizen of 
 any foreign State, who shall be found and taken on the sea, making war 
 upon the United States, or cruising against the vessels and property thereof, 
 or of the citizens of the same, contrary to the provisions of any treaty ex- 
 isting between the United States and the State of which such person is a 
 citizen or subject, when by such treaty such acts of such persons are 
 declared to be piracy, may be arraigned, tried, convicted, and punished 
 before any circuit court of the United States for the district into which 
 such person may be brought, or shall be found, in the same manner as 
 other persons charged with piracy may be arraigned, tried, convicted, and 
 punished in said courts. 
 
 ACT OF 1847, CHAPTER 55 (9 U. S. Stats, at Large, 181). 
 
 An Act for the Reduction of the Costs and Expenses of Proceedings in Admiralty against 
 
 Ships and Vessels. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That in any case brought in the 
 courts of the United States, exercising jurisdiction in admiralty, where a 
 warrant of arrest, or other process in rem, shall be issued, it shall be the 
 duty of the marshal to stay the execution of such process, or to discharge 
 the property arrested if the same has been levied, on receiving from the 
 claimant of the same a bond or stipulation in double the amount claimed 
 by the libellant, with sufficient surety, to be approved by the judge of the 
 said court, or, in his absence, by the collector of the port, conditioned to 
 abide and answer the decree of the court in such cause ; and such bond or 
 stipulation shall be returned to the said court, and judgment on the same, 
 both against the principal and sureties, may be recovered at the time of
 
 622 ' APPENDIX. 
 
 rendering the decree in the original cause : Provided, That the entire costs 
 in any such case, in which the amount recovered by the libellant shall not 
 exceed one hundred dollars, shall not be more than fifty per cent of the 
 amount recovered in the same, which costs shall be applied, first, to the 
 payment of the usual fees for witnesses, and the commissioner, where a 
 commissioner shall act on the case, and the residue to be divided, pro rata, 
 between the clerk and marshal, under the direction of the judge of the 
 court where the cause may be tried : Provided, further, That no attorney's 
 or proctor's fees shall be allowed or paid out of the said costs. 
 
 ACT OF 1848, CHAPTER 48 (9 U. S. Stats, at Large, 232). 
 
 An Act extending Privileges to American Vessels engaged in a certain mentioned Trade, and 
 
 for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That it shall hereafter 
 be lawful for any steamship or other vessel, on being duly registered in 
 pursuance of the laws of the United States, to engage in trade between 
 one port in the United States and one or more ports within the same, with 
 the privilege of touching at one or more foreign ports during the voyage, 
 and land and take in thereat merchandise, passengers, and their baggage, 
 and letters^ and mails : Provided, That all such vessels shall be furnished 
 by the collectors of the ports at which they shall take in their cargoes in 
 the United States, with certified manifests, setting forth the particulars of 
 the cargoes, the marks, number of packages, by whom shipped, to whom 
 consigned, at what port to be delivered ; designating such goods as are 
 entitled to drawback, or to the privilege of being placed in warehouse ; 
 and the masters of all such vessels shall, on their arrival at any port of 
 the United States from any foreign port at which such vessel may have 
 touched, as herein provided, conform to the laws providing for the delivery 
 of manifests, of cargo, and passengers taken on board at such foreign port, 
 and all other laws regulating the report and entry of vessels from foreign 
 ports, and be subject to all the penalties therein prescribed. 
 
 Sec. 2. And be it further enacted, That all vessels, and their cargoes, 
 engaged in the trade referred to in this act shall become subject to the 
 provisions of existing collection and revenue laws on arrival in any poi't in 
 the United States : Provided, That any foreign goods, wares, or merchan- 
 dise, taken in at one port of the United States, to be conveyed in said ves- 
 sels to any other port within the same, either under the provisions of the 
 warehousing act of sixth August, eighteen hundred and forty-six, or under 
 the laws regulating the transportation coastwise of goods entitled to draw-
 
 APPENDIX. 623 
 
 back, as well as any goods, wares, or merchandise not entitled to drawback, 
 but on which the import duties chargeable by law shall have been duly 
 paid, shall not become subject to any import duty by reason of the vessel 
 in which they may arrive having touched at a foreign port during the 
 voyage, in pursuance of the privilege given in this act. 
 
 ACT OF 1848, CHAPTER 141 (9 U. S. Stats, at Large, 274). 
 An Act to authorize the Secretary of the Treasury to license Yachts, and for other Purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the secretary of 
 the treasury is hereby authorized to cause yachts used and employed exclu- 
 sively as pleasure vessels, and designed as models of naval architecture, 
 and now entitled, to be enrolled as American vessels, to be licensed on 
 terms which will authorize them to proceed from port to port of the United 
 States without entering or clearing at the custom-house- Such license 
 shall be in such form as the secretary of the treasury may prescribe : Pro- 
 vided, Such vessels so enrolled and licensed shall not be allowed to traua- 
 |)ort merchandise or carry passengers for pay : And provided further, That 
 the owner of any such vessel, before taking out such license, shall give a 
 bond in such form and for such amount as the secretary of the treasury shall 
 prescribe, conditional that the said vessel shall not engage in any unlawful 
 trade, nor in any way violate the revenue laws of the United States, and 
 shall comply with the laws in all other I'espects. 
 
 Sec. 2. And he it further enacted, That all such vessels shall, in all re- 
 spects, except as above, be subject to the laws of the United States, and 
 shall be liable to seizure and forfeiture for any violation of the provisions 
 of this act. 
 
 Sec. 3. And he it further enacted, That all such licensed yachts shall use 
 a signal of the form, size, and colors prescribed by the secretary of the 
 navy, and the owners thereof shall at all times permit the naval architects 
 in the employ of the United States to examine and copy the models of said 
 yachts. 
 
 ACT OF 1849, CHAPTER 105 (9 U. S. Stats, at Large, 382). 
 
 Regulations to be observed by Vessels, Steamboats, ^-c. navigating the Northern or North- 
 western Lakes. 
 
 Section 5. And be it further enacted, That vessels, steamboats, and pro- 
 pellers, navigating the northern and western lakes, shall, from and after the 
 thirtieth day of April next, comply with the following regulations, for the 
 security of life and property, to wit : during the night, vessels on the star-
 
 624 APPENDIX. 
 
 board tack shall show a red light, vessels on the larboard tack a green 
 light, and vessels going off large, or before the wind, or at anchor, a white 
 light ; steamboats and propellers shall carry on the stem, or as far forward 
 as possible, a triangular light, at an angle of about sixty degrees with the 
 horizon, and on the starboard side a light shaded green, and on the lar- 
 board side red ; said lights shall be furnished with reflectors, «fec. complete, 
 and of a size to insure a good and sufficient light ; and if loss or damage 
 shall occur, the owner or owners of the vessel, steamboat, or propeller, neg- 
 lecting to comply with these regulations, shall be liable to the injured 
 party for all loss or damage resulting from such neglect ; and the owner 
 or owners of any vessel failing to comply with said regulations shall for- 
 feit a penalty of one hundred dollars, which may be recovered in an action 
 of debt, to be brought by the district attorney of the United States, in the 
 name of the United States, in any court of competent jurisdiction. ^ 
 
 ACT OE 1850, CHAPTER 27 (9 U. S. Stats, at Large, 440). 
 An Act to provide for recording the Conveyances of Vessels, and for other Purposes.^ 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of Amei-ica in Congress assembled, That no bill of sale, 
 mortgage, hypothecation, or conveyance of any vessel, or part of any ves- 
 sel, of the United States, shall be valid against any person other than the 
 grantor or mortgagor, his heirs and devisees, and persons having actual 
 notice thereof ; unless such bill of sale, mortgage, hypothecation, or convey- 
 ance be recorded in the office of the collector of the customs where such 
 vessel is registered or enrolled : Provided, That the lien by bottomry on 
 any vessel created during her voyage, by a loan of money or materials, 
 necessary to repair or enable such vessel to prosecute a voyage, shall not 
 lose its priority, or be in any way affected by the provisions of this act. 
 
 Sec. 2. And be it further enacted, That the collectors of the customs shall 
 record all such bills of sale, mortgages, hypothecations, or conveyances, and, 
 also, all certificates for discharging and cancelling any such conveyances 
 in a book or books to be kept for that purpose, in the order of their re- 
 ception ; noting in said book or books, and also on the bill of sale, mortgage, 
 hypothecation, or conveyance, the time when the same was received, and 
 shall certify on the bill of sale, mortgage, hypothecation, or conveyance, or 
 certificate of discharge or cancellation, the number of the book and page 
 where recorded ; and shall receive, for so recording such instrument of con- 
 veyance, or certificate of discharge, fifty cents. 
 
 Sec. 3. And be it further enacted, That the collectors of the customs shall 
 
 1 See Act of 1864, c. 69. ' See Act of 1866, c. 8.
 
 APPENDIX. 625 
 
 keep an index of such records, inserting alplmbetically the names of the ven- 
 dor or mortgagor, and of the vendee or mortgagee, and shall permit said in- 
 dex and books of records to be inspected during office hours, under such 
 reasonable regulations as they may establish, and shall, when required, fur- 
 nish to any person a certificate, setting forth the names of the owners of any 
 vessel registered or enrolled, the parts or proportions owned by each (if in- 
 serted in the register or enrolment), and also the material facts of any exist- 
 ing bill of sale, mortgage, hypothecation, or other incumbrance upon such 
 vessel, recorded since the issuing of the last register or enrolment ; viz. the 
 date, amount of such incumbrance, and from and to whom or in whose favor 
 made ; the collector shall receive for each such certificate one dollar. 
 
 Sec. 4. A7id be it further enacted, That the collectors of the customs shall 
 furnish certified copies of such records on the receipt of fifty cents for each 
 bill of sale, mortgage, or other conveyance. 
 
 Sec. 5. And be it further enacted, That the owner, or agent of the owner 
 of any vessel of the United States, applying to a collector of the customs for 
 a register or enrolment of a vessel, shall, in addition to the oath now pre- 
 scribed by law, set forth, in the oath of ownership, the part or proportion 
 of such vessel belonging to each owner, and the same shall be inserted in 
 the register or enrolment ; and that all bills of sale of vessels registered or 
 enrolled shall set forth the part of the vessel owned by each person selling, 
 and the part conveyed to each person purchasing. 
 
 Sec. 6. And be it further enacted. That the twelfth clause or section of the 
 act entitled " An act in addition to the several acts regulating the shipment 
 and discharge of seamen, and the duties of consuls," approved July twen- 
 tieth, eighteen hundred and forty, be so amended, as that all complaints in 
 writing to the consuls or commercial agents as therein provided, that a vessel 
 is unseaworthy, shall be signed by the first, or the second and third officers, 
 and a majority of the crew, before the consul or commercial agent shall be 
 authorized to notice such complaint, or proceed to appoint inspectors as therein 
 provided. 
 
 Sec. 7. And be it further enacted, That any person, not being an owner, 
 who shall, on the high seas, wilfully, with intent to burn or destroy, set fire 
 to any ship or other vessel, or otherwise attempt the destruction of such ship 
 or other vessel, being the property of any citizen or citizens of the United 
 States, or procure the same to be done, with the intent aforesaid, and being 
 thereof lawfully convicted, shall suffer imprisonment to hard labor, for a term 
 not exceeding ten years, nor less than three years, according to the aggra- 
 vation of the offence. 
 
 Sec. 8. And be it further enacted. That this act shall be in force from and 
 after the first day of October next ensuing. 
 
 VOL. II. 40
 
 626 APPENDIX. 
 
 ACT OF 1850, CHAPTER 80 (9 U. S. Stats, at Large, 514). 
 
 An Act making Appropriations fur the Naval Service for the Year ending the thirtieth of June, 
 one thousand eight hundred and fifty-one, and abolishing Flogging in the Navy and on hoard 
 Vessels of Commerce. 
 
 For transportation of the United States mail between New York and 
 Liverpool, between New York and New Orleans, Havana and Chagres, and 
 between Panama and some points in the Territory of Oregon, eight hundred 
 and seventy-four thousand six hundred dollars : Provided, That no payment 
 shall be made for said services, except in proportion to the mail service 
 heretofore performed, or that may be hereafter performed ; and that the 
 secretary of the navy is hereby directed to make payment in said proportion 
 only : Provided, That flogging in the navy, and on board vessels of com- 
 merce, be, and the same is hereby, abolished from and after the passage of 
 this act. 
 
 ACT OF 1851, CHAPTER 43 (9 U. S. Stats, at Large, 635). 
 An Actio limit the Liability of Ship-Owners, and for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, 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 or merchandise whatsoever, which shall 
 be shipped, taken in, or put on board any such ship or vessel, by reason 
 or by means of any fire happening to or on board the said ship or vessel, 
 unless such fire is caused by the design or neglect of such owner or 
 owners: Provided, That nothing in this act contained shall prevent the 
 parties from making such contract as they please, extending or limiting 
 the liability of ship-owners. 
 
 Sec. 2. And be it further enacted, That if any shipper or shippers of 
 platina, gold, gold dust, silver, bullion, or other precious metals, coins, 
 jewelry, bills of any bank or public body, diamonds or other precious 
 stones, shall lade the same on board of any ship or vessel, withoul, at the 
 time of such lading, giving to the master, agent, owner, or owners of the 
 ship or vessel receiving the same, a note in writing of the true character 
 and value thereof, and have the same entered on the bill of lading there- 
 for, the master and owner or owners of the said vessel shall not be liable, 
 as carriers thereof, in any form or manner. Nor shall any such master 
 or owners be liable for any such valuable goods beyond the value and ac- 
 cording to the character thereof so notified and entered. 
 
 Sec. 3. And be it further enacted, That the liability of the owner or
 
 APPENDIX. 627 
 
 owners of any ship or vessel, for any embezzlement, loss, or destruction, 
 by the master, otlicers, mariners, jaassengers, or any other person or per- 
 sons, of any property, goods, or merchandise, shipped or put on board of 
 such ship or vessel, or for any loss, damage, or injury by collision, or for 
 any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or 
 incurred, without the privity or knowledge of such owner or owners, shall 
 in no case exceed the amount or value of the interest of such owner 
 or owners respectively, in such ship or vessel, and her freight then pend- 
 ing. 
 
 Sec. 4. And be it further enacted, That if any such embezzlement, loss, 
 or destruction, shall be suffered by several freighters or owners of goods, 
 wares, or merchandise, or any property whatever, on the same voyage, 
 and the whole value of the ship or vessel, and her freight for the voyage, 
 shall not be sufficient to make compensation to each of them, they shall 
 receive compensation from the owner or owners of the ship or vessel, in 
 proportion to their respective losses ; and for that purpose the said 
 freighters and owners of the property, and the owner or owners of the 
 ship or vessel, or any of them, may take the appropriate proceedings in 
 any court, for the purpose of apportioning the sura for which the owner 
 or owners of the ship or vessel may be liable amongst the parties entitled 
 thereto. And it shall be deemed a sufficient compliance with the require- 
 ments of this act, on the part of such owner or owners, if he or they 
 shall transfer his or their interest in such vessel and freight, for the bene- 
 fit of such claimants, to a trustee, to be appointed by any court of com- 
 petent jurisdiction, to act as such trustee for the jjerson or persons 
 w^ho may prove to be legally entitled thereto, from and after which 
 transfer, all claims and proceedings against the owner or owners shall 
 cease. 
 
 Sec. 5. A7id be it further enacted, That the charterer or charterers 
 of any ship or vessel, in case he or they shall man, victual, and navigate 
 such vessel at his or their own expense, or by his or their own procure- 
 ment, shall be deemed the owner or owners of such Aessel within the 
 meaning of this act ; and such ship or vessel, when so chartered, shall 
 be liable in the same manner as if navigated by the owner or owners 
 thereof. 
 
 Sec. 6. And be it further enacted, That nothing in the preceding sec- 
 tions shall be construed to take away or effect the remedy to which any 
 party may be entitled, against the master, officers, or mariners, for or on 
 account of any embezzlement, injury, loss, or destruction of goods, wares, 
 merchandise, or other property, put on board any ship or vessel, or on ac- 
 count of any negligence, fraud, or other malversation of such master, offi- 
 cers, or mariners, respectively, nor shall anything herein contained lessen
 
 628 APPENDIX. 
 
 or take away any responsibility to which any master or mariner of any 
 ship or vessel may now by law be liable, notwithstanding such master or 
 mariner may be an owner or part owner of the ship or vessel. 
 
 Sec. 7. And be it further enacted, That any person or persons shipping 
 oil of vitriol, unslacked lime, inflammable matches, or gunpowder, in a ship 
 or vessel taking cargo for divers persons on freight, without delivering, at 
 the time of shipment, a note in writing, expressing the nature and char- 
 acter of such merchandise, to the master, mate, officer, or person in 
 charge of the lading of the ship or vessel, shall forfeit to the United 
 States one thousand dollars. 
 
 This act shall not apply to the owner or owners of any canal boat, 
 barge, or lighter, or to any vessel of any description whatsoever, used in 
 rivers or inland navigation. 
 
 ACT OF 1852, CHAPTER 106 (10 U. S. Stats, at Large, 61). 
 
 An Act to amend an Act entitled ^'An Act to provide for the better Security of the Lives of 
 Passengers on board of Vessels jiropelled in whole or in part by Steam," and for other 
 Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That no license, regis- 
 ter, or enrolment, under the provisions of this or the act to which this is 
 an amendment, shall be granted, or other papers issued by any collector, 
 to any vessel propelled in whole or in part by steam, and carrying passen- 
 gers, until he shall have satisfactory evidence that all the provisions of this 
 act have been fully complied with ; and if any such vessel shall be navi- 
 gated, with passengers on board, without complying with the terms of this 
 act, the owners thereof and the vessel itself shall be subject to the penalties 
 contained in the second section of the act to which this is an amendment. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of the 
 inspectors of the hulls of steamers, and the inspectors of boilers and engines, 
 appointed under the provisions of this act, to examine and see that suitable 
 and safe provisions are made throughout such vessel to guard against loss 
 or danger from fire ; and no license or other papers, on any application, 
 shall be granted, if the provisions of this act for preventing fires are not 
 complied with, or if any combustible material liable to take fire from 
 heated iron, or any other heat generated on board of such vessels in and 
 about the boilers, pipes, or machinery, shall be placed at less than eighteen 
 inches distant from such heated metal or other substance likely to cause 
 iirnition, unless a column of air or water intervenes between such heated 
 surface and any wood or other combustible material so exposed, sufficient 
 at all times, and under all circumstances, to prevent ignition ; and further,
 
 APPENDIX. 629 
 
 when wood is so exposed to ignition, as an additional preventive, it shall 
 be shielded by some incombustible material in such manner as to leave the 
 air to circulate freely between such material and the wood : Provided, 
 however, That when the structure of such steamers is such, or the arranTe- 
 ment of the boilers or machinery is such that the requirements aforesaid 
 cannot, without serious inconvenience or sacrifice, be complied with, 
 inspectors may vary therefrom, if in their judgment it can be done with 
 safety. 
 
 Sec. 3. And he it further enacted, That every vessel so propelled by 
 steam, and carrying passengers, shall have not less than three double-act- 
 ing forcing pumps, with chamber at least four inches in diameter, two to be 
 worked by hand and one by steam, if steam can be employed, otherwise by 
 hand ; one whereof shall be placed near the stern, one near the stem, and one 
 amidship ; each having a suitable, well-fitted hose, of at least two thirds the 
 length of the vessel, kept at all times in perfect order and ready for 
 immediate use ; each of which pumps shall also be supplied with water by 
 a pipe connected therewith, and passing through the side of the vessel, so 
 low as to be at all times in the water when she is afloat : Provided, That, 
 in steamers not exceeding two hundred tons measurement, two of said 
 pumps may be dispensed with ; and in steamers of over two hundred tons, 
 and not exceeding five hundred tons measurement, one of said pumps may 
 be dispensed with. 
 
 Sec. 4. And he it further enacted. That every such vessel, carrying 
 passengers, shall have at least two good and suitable boats, supplied with 
 oars, in good condition at all times for service, one of which boats shall be 
 a life-boat made of metal, fire-proof, and in all respects a good, substantial, 
 safe sea boat, capable of sustaining, inside and outside, fifty persons, with 
 life-lines attached to the gunwale, at suitable distances. And every such 
 vessel of more than five hundred tons, and not exceeding eight hundred 
 tons measurement, shall have three life-boats ; and every such vessel of 
 more than eight hundred tons, and not exceeding fifteen hundred tons 
 measurement, shall have four life-boats; and every such vessel of more 
 than fifteen hundred tons measurement shall have six life-boats, — all of 
 which boats shall be well furnished with oars and other necessary ap- 
 paratus : Provided, however, The inspectors are hereby authorized to 
 exehipt steamers navigating rivers only from the obligation to carry, of the 
 life-boats herein provided for, more than one, the same being of suitable 
 dimensions, made of metal and furnished with all necessary apparatus for 
 use and safety, — such steamers having other suitable provisions for the 
 preservation of life in case of fire or other disaster. 
 
 Sec. 5. And be it farther enacted. That every such vessel, carrying 
 passengers, shall also be provided with a good life-preserver, made of suitable
 
 630 APPENDIX. 
 
 material, or float well adapted to the purpose, for each and every passen- 
 ger, which life-preservers and floats shall always be kept in convenient 
 and accessible places in such vessel, and in readiness for the use of the 
 passengers ; and every such vessel shall also keep twenty fire buckets and 
 five axes ; and there shall be kept on board every such vessel exceeding 
 five hundred tons measurement, buckets and axes after the rate of their 
 tonnage, as follows : on every vessel of six hundred tons measurement, 
 five buckets and one axe for each one hundred tons measurement, decreas- 
 ing this proportion as the tonnage of the vessel increases, so that any such 
 vessel of thirty-five hundred tons, and all such vessels exceeding the same, 
 shall not be required to keep but three buckets for each one hundred tons 
 of measurement, and but one axe for every five buckets. 
 
 Sec. 6. And he it further enacted, That every such vessel carrying pas- 
 sengers on the main or lower deck shall be provided with sufficient means 
 convenient to such passengers for their escape to the upper deck in case of 
 fire or other accident endangering life. 
 
 Sec. 7. And he it further enacted. That no loose hemp shall be carried 
 on board any such vessel ; nor shall baled hemp be carried on the deck or 
 guards thereof, unless the bales are compactly pressed and well covered 
 with bagging, or a similar fabric ; nor shall gunpowder, oil of turpentine, 
 oil of vitriol, camphene, or other explosive burning fluids, or materials 
 which ignite by friction, be carried on board any such vessel, as freight, ex- 
 cept in cases of special license for that purpose, as hereinafter provided ; 
 and all such articles kept on board as stores, shall be secured in metallic 
 vessels ; and every person who shall knowingly violate any of the provis- 
 ions of this section, shall pay a penalty of one hundred dollars for each 
 offence, to be recovered by action of debt in any court of competent juris- 
 diction. 
 
 Sec. 8. And he it further enacted, That hereafter all gunpowder, oil of 
 turpentine, oil of vitriol, camphene, or other explosive burning fluids, and 
 materials which ignite by friction, when packed or put up for shipment 
 on board of any such vessel, shall be securely packed or put up separately 
 from each other and from all other articles, and the package, box, cask, or 
 vessel containing the same, shall be distinctly marked on the outside with 
 the name or description of the articles contained therein ; and every per- 
 son who shall pack or put up, or cause to be packed or put up for shipment 
 on board of any such vessel, any gunpowder, oil of turpentine, oil of vitriol, 
 camphene, or other explosive burning fluids, or materials which ignite by 
 friction, otherwise than as aforesaid, or shall ship the same, unless packed 
 and marked as aforesaid, on board of any steam-vessel carrying passengers, 
 shall be deemed guilty of a misdemeanor, and punished by a fine not ex- 
 ceeding one thousand dollars, or impi-isonment not. exceeding eighteen 
 months, or both.
 
 APPENDIX. 631 
 
 Sec. 9. And he it further enacted, That instead of the existing pro- 
 visions of law for the inspection of steamers and their equipment, and 
 instead of the present system of pilotage of such vessels, and the present 
 mode of employing engineers on board the same, the following regulations 
 shall be observed, to wit : The collector or other chief officer of the cus- 
 toms, together with the supervising inspector for the district, and the judge 
 of the district court of the United States for the district in each of the fol- 
 lowing collection districts, namely, New Orleans and St. Louis, on the Mis- 
 sissippi River ; Louisville, Cincinnati, Wheeling, ^ and Pittsburg, on the 
 Ohio River ; Buffalo and Cleveland, on Lake Erie ; Detroit, upon De- 
 troit River; Nashville, upon the Cumberland River; Chicago, on Lake 
 Michigan ; Oswego, on Lake Ontario ; Burlington, in Vermont ; Galveston, 
 in Texas ; Mobile, in Alabama ; Savannah, in Georgia ; Charleston, in 
 South Carolina ; Norfolk, in Virginia ; Baltimore, in Maryland ; Phila- 
 delphia, in Pennsylvania ; New York, in New York ; New London, in 
 Connecticut ; Boston, in Massachusetts ; Portland, in Maine ; and San 
 Francisco, in California, shall designate two inspectors, of good charac- 
 ter and suitable qualifications to perform the services required of them by 
 this act within the respective districts for which they shall be appointed, 
 one of whom, from his practical knowledge of ship-building, and the uses 
 of steam in navigation, shall be fully competent to make a reliable esti- 
 mate of the strength, seaworthiness, and other qualities of the hulls of steam- 
 ers and their equipment, deemed essential to safety of life, when such ves- 
 sels are employed in the carriage of passengers, to be called the Inspector 
 of Hulls ; the other of whom, from his knowledge and experience of the 
 duties of an engineer employed in navigating vessels by steam, and also in 
 the construction and use of boilers, and the machinery and appurtenances 
 therewith connected, shall be able to form a reliable opinion of the quality 
 of the material, the strength, form, workmanship, and suitableness of such 
 boilers and machinery to be employed in the carriage of passengers, 
 without hazard to life, fi-om imperfections in the material, workmanship, or 
 arrangement of any part of such apparatus for steaming, to be called the 
 Inspector of Boilers; and these two persons thus designated, if approved 
 by the secretary of the treasury, shall be, from the time of such designa- 
 tion, inspectors, empowered and required to perform the duties herein 
 specified, to wit : — 
 
 First, Upon application in writing by the master or owner, they shall, 
 once in every year at least, carefully inspect the hull of each steamer be- 
 longing to their respective districts and employed in the carriage of pas- 
 sengers, and shall satisfy themselves that every such vessel so submitted to 
 their inspection is of a structure suitable for the service in which she is to 
 ' See Act of 1864, c. 113.
 
 632 APPENDIX. 
 
 be employed, has suitable accommodations for her crew and passengers, 
 and is in a condition to warrant the belief that she may be used in naviga- 
 tion as a steamer, with safety to life, and that all the requirements of law 
 in regard to fires, boats, pumps, hose, life-preservers, floats, and other 
 things, are faithfully complied with ; and if they deem it expedient, they 
 may direct the vessel to be put in motion, and may adopt any other suitable 
 means to test her sufficiency and that of her equipment. 
 
 Second, They shall also inspect the boilers of such steamers before the 
 same shall be used, and once in every year thereafter, subjecting them to a 
 hydrostatic pressure, the limit to which, not exceeding one hundred and 
 sixty-five pounds to the square inch for high-pressure boilers, may be pre- 
 scribed by the owner or the master, and shall satisfy themselves by exam- 
 ination and experimental trials, that the boilers are well made of good and 
 suitable material ; that the openings for the passage of water and steam 
 respectively, and all pipes and tubes exposed to heat, are of proper dimen- 
 sions, and free from obstruction ; that the spaces between the flues are suf- 
 ficient, and that the fire line of the furnace is below the prescribed water- 
 line of the boilers ; and that such boilers and the machinery and the ap- 
 purtenances may be safely employed in the service proposed in the written 
 application, without peril to life ; and shall also satisfy themselves that the 
 safety-valves are of suitable dimensions, sufficient in number, well ar- 
 ranged, and in good working order (one of which may, if necessary in the 
 opinion of the inspectors, to secure safety, be taken wholly from the con- 
 trol of all persons engaged in navigating such vessel) ; that there is a suit- 
 able number of gauge-cocks properly inserted, and a suitable water-gauge 
 and steam-gauge indicating the height of the water and the pressure of the 
 steam ; that in or upon the outside flue of each outside high-pressure 
 boiler, there is placed in a suitable manner alloyed metals, fusible by the 
 heat of the boiler when raised to the highest working pressure allowed, 
 and that in or upon the top of the flues of all other high-pressure boilers 
 in the steamer, such alloyed metals are placed, as aforesaid, fusing at ten 
 pounds greater pressure than said metals on the outside boilers, thereby, in 
 each case, letting steam escape ; and that adequate and certain provision is 
 made for an ample supply of water to feed the boilers at all times, whether 
 such vessel is in motion or not ; so that, in high-pressure boilers, the water 
 shall not be less than four inches above the flue : Provided, however, in 
 steamers hereafter supplied witli new high-pressure boilers, if the alloy 
 fuses on the outer boilers at a pressure of ten pounds exceeding the woi'k- 
 ing pressure allowed, and at twenty pounds above said pressure on the inner 
 boilers, it shall be a sufficient compliance with this act. 
 
 Third. That in subjecting to the hydrostatic test aforesaid, boilers called 
 and usually known under the designation of high-pressure boilers, the in-
 
 APPENDIX. 633 
 
 spectors shall assume one hundred and ten pounds to the square inch as 
 the maximum pressure allowable as a working power for a new boiler 
 forty-two inches in diameter, made of inspected iron plates at least one 
 fourth of an inch thick, in the best manner, and of the quality herein re- 
 quired, and shall rate the working power of all high-pressure boilers, 
 whether of greater or less diametei', old or new, according to their strength 
 compared with this standard ; and in all cases the test applied shall exceed 
 the working power allowed, in the ratio of one hundred and sixty-five to 
 one hundred and ten, and no high-pressure boilers hereafter made shall be 
 rated above this standard ; and in subjecting to the test aforesaid that 
 class of boilers usually designated and known as low-pressure boilers, the 
 said inspectors shall allow as a working power of each new boiler a pres- 
 sure of only three fourths the number of pounds to the square inch to which 
 it shall have been subjected by the hydrostatic test and found to be suf- 
 ficient therefor, using the water in such tests at a temperature not exceeding 
 sixty degrees Fahrenheit ; but should such inspectors be of the opinion that 
 said boiler, by reason of its construction or material, will not safely allow 
 so high a working pressure, they may, for reasons to be stated specifically 
 in their certificate, fix the working pressure of said boiler at less than three 
 fourths of said test pressure, and no low-pressure boiler hereafter made 
 shall be rated in its working pressure above the aforesaid standard : and 
 provided that the same rules shall be observed in regard to boilers hereto- 
 fore made, unless the proportion between such boilers and the cylinders, or 
 some other cause, rendei's it manifest that its application would be unjust, 
 in which cases the inspectors may depart from these rules, if it can be done 
 with safety ; but in no case shall the working pressure allowed exceed the 
 hydrostatic test, and no valve under any circumstances shall be loaded or 
 so managed in any way as to subject a boiler to a greater pressure 
 than the amount allowed by the inspectors, nor shall any boiler or pipe be 
 approved which is made in whole or in part of bad material, or is unsafe 
 in its form, or dangerous from defective workmanship, age, use, or any 
 other cause. 
 
 Fourth. That when the inspection in detail is completed, and the inspec- 
 tors approve of the vessel and her equipment throughout, they shall make 
 and subscribe a certificate to the collector of the district, substantially as 
 follows : — 
 
 State of District of Application having been made in 
 
 writing by to the subscribers, inspectors for said district, to ex- 
 
 amine the steamer of whereof are owners, and 
 
 is master, we, having performed that service, now, on this 
 day of A. D. do certify, that she was built in the year 
 
 , is in all respects stanch, seaworthy, and in good condition for
 
 634 APPENDIX. 
 
 navigation, having suitable means of escape in ease of accident from the 
 main to the upper deck, that she is provided with (here insert the number 
 of state-rooms, the number of berths therein, the number of other permanent 
 berths for cabin passengers, the number of berths for deck or other classes 
 of passengers, the number of passengers of each class for whom she has 
 suitable accommodations, and in case of steamers sailing to or from any 
 European port, or to or from any port on the Atlantic or the Pacific, a 
 distance of one thousand miles or upwards, the number of each she is per- 
 mitted to carry, — and in case of a steamer sailing to any other port, a 
 distance of five hundred miles or upwards, the number of deck passengers 
 she is permitted to carry, also the number of boilers, and the form, dimen- 
 sions, and material of which each boiler is made, the thickness of the 
 metal, and when made — if made after this act takes effect, and of iron, 
 whether they are such in all respects as the act requires, whether each 
 boiler has been tried by hydrostatic test, the amount of pressure to the 
 square inch in pounds applied to it, whether the amount allowed as the 
 maximum working power was determined by the rule prescribed by this 
 act, if not, the reason for a departure from it ; also the number of safety- 
 valves required, their capacity, the load prescribed for each valve, how 
 many are left to the control of the persons navigating the vessel, whether 
 one is withdrawn, and the manner of securing it against interference, also 
 the number and dimensions of supply pipes, and whether they and the 
 other means provided are sufficient at all times and under all circum- 
 stances, when in good order, to keep the water up four inches at least above 
 the top of the flue ; also the number and dimensions of the steam-pipes, 
 the number and kind of engines, the dimensions of their cylinders, the 
 number and capacity of the forcing-pumps, and how worked, the number 
 and kind of gauge-cocks, water and steam gauges, where situate, and how 
 secured ; also the manner of using alloyed metals, and the pressui'e at 
 which they are known by the inspectors to fuse ; the equipments for the 
 extinguishment of fires, including hose, fire-buckets, and axes ; the provis- 
 ions for saving life in case of accident, including boats, life-preservers, and 
 substitutes therefore, where kept, and all other provisions made on board 
 for the security of the lives of passengers). And we further certify that 
 the equipment of the vessel throughout, including pipes, pumps, and other 
 means to keep the water up to the point aforesaid, hose, boats, life-preservers, 
 and other things, is in conformity with the provisions of law ; and that we 
 declare it to be our deliberate conviction, founded upon the inspection 
 which we have made, that the vessel may be employed as a steamer upon 
 the waters named in the application, without peril to life, from any imper- 
 fection of form, materials, workmanship, or arrangement of the several 
 parts, or from age or use. And we further certify that said vessel is to
 
 APPENDIX. 635 
 
 run within the following limits, to wit : from to and back, 
 
 touching at intermediate places. 
 
 And which certificate shall be verified by the oaths of the inspectors 
 signing it, before a person competent by law to administer oaths. And in 
 case the said inspectors do not grant a certificate of approval, they shall 
 state, in writing, and sign the same, their reasons for their disapproval. 
 
 Fifth. Upon the application of the master or owner of any steamer 
 employed in the carriage of passengers, for a license to carry gunpowder, 
 oil of turpentine, oil of vitriol, caraphene, or other explosive burning fluids, 
 and materials which ignite by friction, or either of them, the inspectors 
 shall examine such vessel, and if they find that she is provided with chests 
 or safes composed of metal, or entirely lined therewith, or one or more 
 apartments thoroughly lined with metal at a secure distance from any fire, 
 they may grant a certificate to that effect, authorizing such vessel to carry 
 as freight any of the articles aforesaid, those of each description to be 
 secured in such chest, safe, or apartment, containing no other article, and 
 carried at a distance from any fire to be specified in the certificate : Pro- 
 vided, That any such certificate may be revoked or annulled at any time 
 by the inspectors, upon proof that either of the said articles have been car- 
 ried on board said vessel, at a place or in a manner not authorized by such 
 certificate, or that any of the provisions of this act in relation thereto have 
 been violated. 
 
 Sixth. The said inspectors shall keep a regular record of certificates of 
 inspections of vessels, their boilers, engines, and machinery, whether of 
 approval or disapproval, and when recorded, the original shall be delivered 
 to the collector of the district ; they shall keep a like record of certificates, 
 authorizing gunpowder, oil of turpentine, oil of vitriol, camphene, or other 
 explosive burning fluids and materials which ignite by fi'iction, or either of 
 them, to be carried as freight, by any such vessel ; and when recorded, de- 
 liver the originals to said collector ; they shall keep a like record of all 
 licenses to pilots and engineers, and all revocations thereof, and shall from 
 time to time report to the supervising inspector of their respective districts, 
 in writing, their decisions on all applications for such licenses, or proceed- 
 ings for the revocation thereof, and all testimony received by them in such 
 proceedings. 
 
 Seventh. The inspectors shall license and classify all engineers and pilots 
 of steamers carrying passengers. 
 
 Eighth. Whenever any person claiming to be qualified to perform the 
 duty of engineer upon steamers carrying passengers shall apply for a cer- 
 tificate, the board of inspectors shall examine the applicant, and the proofs 
 Avhich he produces in support of his claim ; and if, upon full consideration, 
 they are satisfied that his character, habits of life, knowledge, and experi-
 
 636 APPENDIX. 
 
 ence in the duties of an engineer, are all such as to authorize the belief 
 that the applicant is a suitable and safe person to be intrusted with the 
 powers and duties of such a station, they shall give him a certificate to that 
 effect, for one year, signed by them, in which certificate they shall state the 
 time of the examination, and shall assign the appointee to the appropriate 
 class of engineers. 
 
 Ninth. Whenever any person claiming to be a skilful pilot for any such 
 vessel shall offer himself for a license, the said board shall make diligent in- 
 quiry as to his character and merits ; and if satisfied that he possesses the 
 requisite skill, and is trustworthy and faithful, they shall give him a certifi- 
 cate to that effect, licensing him for one year to be a pilot of any such ves- 
 sel within the limit prescribed in the certificate ; but the license of any 
 such engineer or pilot may be revoked upon proof of negligence, unskilful- 
 ness, or inattention to the duties of the station : Provided, however, If in 
 cases of refusal to license engineers or pilots, and in cases of the revoca- 
 tion of any license by the local board of inspectors, any engineer or pilot 
 deeming himself wronged by such refusal or revocation, may, within thirty 
 days after notice thereof, on application to a supervising inspector, have 
 his case examined anew by such supervising inspector, upon producing a 
 certified copy of the reasons assigned by the local board for their doings in 
 the premises ; and such supervising inspector may revoke the decision of 
 such local board of inspectors, and license such pilot or engineer ; and like 
 proceedings, upon the same conditions, may be had by the master or owner 
 of any such vessel, or of any steamboat-boiler, for which the said local 
 board shall have refused, upon inspection, to give a certificate of approval, 
 or shall have notified such master or owner of any repairs necessary after 
 such certificate has been granted. 
 
 Tenth. It shall be unlawful for any person to employ, or any person to 
 serve as engineer or pilot, on any such vessel, who is not licensed by the 
 inspectors ; and any one so offending shall forfeit one hundred dollars for 
 each offence : Provided, however, That if a vessel leaves her port with a 
 complement of engineers and pilots, and on her voyage is deprived of their 
 services, or the services of any of them, without the consent, fault, or col- 
 lusion of the master, owner, or any one interested in the vessel, the 
 deficiency may be temporarily supplied, until othei's, licensed, can be 
 obtained. 
 
 Eleventh. In addition to the annual inspection, it shall be the duty of 
 said board to examine, seasonably, steamers arriving and departing, so 
 often as to enable them to detect any neglect to comply with the require- 
 ments of law, and also any defects or imperfections becoming apparent 
 after the inspection aforesaid, and tending to render the navigation of the 
 vessel unsafe, which service may be performed by one of the board ; and
 
 APPENDIX. 637 
 
 if he shall discover an omission to comply with the law or that repairs have 
 become necessary to make the vessel safe, he shall at once notify the 
 master, stating in the notice what is requii'ed ; and if the master deems the 
 requirements unreasonable or unnecessary, he may take the opinion of the 
 board thereon, and if dissatis6ed with the decision of such board, may apply 
 for a re-examination of the case to the supervising inspector as is herein- 
 before provided ; and if he shall refuse or neglect to comply with the 
 requirements of the local board, and shall, contrary thereto, and while the 
 same remains unreversed by the supervising inspector, employ the vessel 
 by navigating her, the master and owner shall be liable for any damage to 
 the passengers and their baggage which shall occur from any defects so as 
 aforesaid stated in said notice, which shall be in writing, and all inspections 
 and orders shall be promptly made by the inspectors ; and where it can be 
 safely done in their judgment, they shall permit repairs to be made where 
 those interested can most conveniently do them ; and no inspectors of one 
 district shall modify or annul the doings of the inspectors of another 
 district, in regard to repairs, unless there is a change in the state of things 
 demanding more repairs than were thought necessary when the order was 
 made ; nor shall the inspectors of one district appoint a person coming 
 from another, if such person had been rejected for unfitness or want of 
 qualifications. 
 
 TivcJfth. The said board, when thereto requested, shall inspect steam- 
 ers belonging to districts where no such board is established ; and if a 
 certificate of approval is not granted, no other inspection shall be made by 
 the same or any other board, until the objections made by the inspectors 
 are removed ; and if any vessel shall be navigated after a board of inspec- 
 tors have refused to make the collector a certificate of approval, she shall 
 be liable to the same penalties as if she had been run without a license : 
 Provided, however, That nothing herein contained shall impair the right 
 of the inspectors to permit such vessel to go to another port for repairs, if, 
 in their opinion, it is safe so to do. 
 
 Thirteenth. The said board of inspectors shall have power to sum- 
 mon before them witnesses, and to compel their attendance by the same 
 process as in courts of law ; and after reasonable time given to the alleged 
 delinquent, at the time and place of investigation, to examine said wit- 
 nesses under oath, touching the performance of their duties by engineers 
 and pilots of any such vessel ; and if it shall appear satisfactorily that any 
 such engineer or pilot is incompetent, or that life has been placed in peril 
 by reason of such incompetency, or by negligence or misconduct on the 
 part of any such person, the board shall immediately suspend or revoke 
 his license, and report their doings to the chief officer of the customs ; 
 and the said chief officer of the customs shall pay out of the revenues
 
 638 APPENDIX. 
 
 herein provided such sums to any witness so summoned under the pro- 
 visions of this act, for his actual travel and attendance, as shall be officially 
 certified, by an inspector hearing the case, upon the back of the summons, 
 not exceeding the rates allowed to a witness for travel and attendance in 
 the circuit and district courts of the United States. 
 
 Fourteenth. That the said board shall report promptly all their doings 
 to the chief officer of the customs, as well as all omissions or refusals to 
 comply with the provisions of law on the part of any owner or master 
 of any such vessel, propelled in whole or in part by steam, carrying pas- 
 sengers. 
 
 Fifteenth. That it shall at all times be the duty of all engineers and pilots 
 licensed under this act, and all mates, to assist the inspectors in the examina- 
 tion of any such vessels to which any such engineer, mate, or pilot belongs, 
 and to point out all defects and imperfections in the hull or apparatus for 
 steaming, and also to make known to them at the earliest opportunity, all 
 accidents occasioning serious injury to the vessel or her equipment, whereby 
 life may be in danger, and in default thereof the license of any such engineer 
 or pilot shall be revoked. 
 
 Sec. 10. And he it further enacted, That in those cases where the number 
 of passengers is limited by the inspector's certificate, it shall not be lawful to 
 take on board of any steamer a greater number of passengers than is certified 
 by the inspectors in the certificate ; and the master and owners, or either of 
 them, shall be liable, to any person suing for the same, to forfeit the amount 
 of passage money and ten dollars for each passenger beyond the number 
 allowed. And moreover, in all cases of an express or implied undertaking 
 to transport passengers, or to supply them with food and lodging, from place 
 to place, and suitable provision is not made of a full and adequate supply of 
 good and wholesome food and water, and of suitable lodging for all such 
 passengers, or where barges, or other craft, impeding the progress, are taken 
 in tow, for a distance exceeding five hundred miles, without previous and 
 seasonable notice to such passengers, in all such cases the owners and the 
 vessel shall be liable to refund all the money paid for the passage, and to 
 pay also the damage sustained by such default or delay : Provided, however, 
 That if in any such case a satisfactory bond is given to the marshal for the 
 benefit of the plaintiflf, to secure the satisfaction of such judgment as he may 
 recover, the vessel shall be released. 
 
 Sec. 11. And be it further enacted, That if the master of a steamer, or any 
 other person, whether acting under orders or not, shall intentionally load or 
 obstruct, or cause to be loaded or obstructed, in any way or manner, the safety 
 valve or valves of a boiler, or shall employ any other means or device whereby 
 the boiler shall be subjected to a greater pressure than the amount allowed 
 by the certificate of the inspectors, or shall be exposed to a greater pressure,
 
 APPENDIX. 639 
 
 or shall intentionally derange or hinder the operation of any machinery or 
 device employed to denote the state of the water or steam in any boiler, or 
 to give vs^arning of approaching danger, it shall, in any such case, be a mis- 
 demeanor, and any and every person concerned therein, directly or indirectly, 
 shall forfeit two hundred dollars, and may, at the discretion of the court, be 
 in addition thereto imprisoned not exceeding eighteen months. 
 
 Sec. 12. And be it furiker enacted, Thatifatany time there be a deficiency 
 of water in a boiler, by suffering it to fall below three inches above the flue, 
 as prescribed in this act, unless the same happens through inevitable accident, 
 the master, if it be by his order, assent, or connivance, and also the engineer, 
 or other person, whose duty it is to keep up the supply, shall be guilty of an 
 offence for which they shall severally be fined one hundred dollars each ; and 
 if an explosion or collapse happens in consequence of such deficiency, they, 
 or any of them, may be further punished by imprisonment, for a period of 
 not less than six nor more than eighteen months. 
 
 Sec. 13. And be it further enacted, That hereafter all boilers of steam- 
 boats made of iron shall be constructed of plates which have been stamped 
 according to the provisions of this act. 
 
 Sec. 14. And be it further enacted, That it shall be the duty of such inspec- 
 tors to ascertain the quality of the material of which the boiler-plates of any 
 such boiler so submitted to their inspection are made ; and to satisfy them- 
 selves by any suitable means, whether the mode of manufacturing has been 
 such as to produce iron equal to good iron made with charcoal, such as in 
 their judgment may be used for generating steam-power without hazard to 
 life ; and no such boiler shall be approved which is made of unsuitable ma- 
 terial, or of which the manufacture is imperfect, or is not, in their opinion, of 
 suitable strength, or whose plates are less than one fourth of an inch in thick- 
 ness, for a high-pressure boiler of forty-two inches in diameter, and in that 
 proportion of strength according to the maximum of working pressure allowed 
 for high-pressure boilers of greater or less diameter, or which is made of any 
 but wrought iron of a quality equal to good iron made with charcoal. 
 
 Sec. 15. Aiid be it further enacted. That all plates of boiler iron shall be 
 distinctly and permanently stamped in such manner as tlie secretary of the 
 treasury shall prescribe, and if practicable, in such place or places that the 
 mark shall be left visible after the plates are worked into boilers ; with 
 the name of the manufacturer, the quality of the iron, and whether or not 
 hammered, and the place where the same is manufactured. 
 
 Sec. 16. And be it further enacted. That it shall be unlawful to use in such 
 vessels for generating steam for power a boiler, or steam-pipe connecting the 
 boilers, made after the passage of this act, of any iron unless it has been stamped 
 by the manufacturer, as herein provided ; and if any person shall make for 
 use in any such vessel a boiler of iron not so stamped, intended to generate
 
 640 APPENDIX. 
 
 steam for power, he shall, for any such offence, forfeit five hundred dollars, 
 to be recovered in an action of debt by any person suing for the same ; and 
 any person using or causing to be used in any such vessel such a boiler to 
 generate steam for power shall forfeit a like sum for each offence. 
 
 Sec. 17. And be it further enacted, That if any person shall counterfeit 
 the marks and stamps required by this act, or shall falsely stamp any boiler 
 iron, and be convicted thereof, he shall be fined not exceeding five hundred 
 dollars and imprisoned not exceeding two years. And if any person or per- 
 sons shall stamp or mark plates with the name or marks of another with 
 intent to mislead, deceive, or defraud, such person or persons shall be liable 
 to any one injured thereby for all damage occasioned by such fraud or de- 
 ception. 
 
 Sec. 18. And be it further enacted, That in order to carry this act fully 
 into execution, the President of the United States shall, with the advice 
 of the Senate, appoint nine supervising inspectors, who shall be selected 
 for their knowledge, skill, and experience in the uses of steam for naviga- 
 tion, and who are competent judges, not only of the character of vessels, 
 but of all parts of the machinery employed in steaming, who shall assemble 
 together at such places as they may agree upon once in each year at least, 
 for joint consultation and the establishment of rules and regulations for 
 their own conduct and that of the several boards of inspectors within the 
 districts, and also to assign to each of the said nine insi)ectors the limits of 
 territory within which he shall perform his duties. And the said super- 
 vising inspectors shall each be paid for his services after the rate of fifteen 
 hundred dollars a year, and in addition thereto, his actual reasonable trav- 
 elling expenses, incurred in the necessary performance of his duty when 
 away from the principal port in his district, and certified and sworn to by 
 him under such instructions as shall be given by the secretary of the treas- 
 ury, who is hereby authorized to pay such salaries, and also such travelling 
 expenses, and the actual reasonable expenses (both to them and other in- 
 spectors) of transporting from place to place the instruments used in inspec- 
 tions, which expenses shall be proved to his satisfaction. 
 
 Sec. 19. And be it further enacted. That the supervising inspectors shall 
 watch over all parts of the territory assigned them, shall visit, confer with, 
 and examine into the doings of the several boards of inspectors, and shall, 
 whenever they think it expedient, visit such vessels, licensed, and examine 
 into their condition, for the purpose of ascertaining whether the provisions 
 of this act have been observed and complied with, both by the board of 
 inspectors and the master and owners ; and it shall be the duty of all mas- 
 ters, engineers, and pilots of such vessels to answer all reasonable inquiries, 
 and to give all the information in their power, in regard to any such vessel 
 so visited, and her machinery for steaming, and the manner of managing 
 both.
 
 APPENDIX. 641 
 
 Sec. 20. A7id be it further enacted. That whenever a supervising in- 
 spector ascertains to his satisfaction that the master, engineer, pilot, or 
 owner of any such vessel fail to perform their duties according to the pro- 
 visions of this act, he shall report the facts in writing to the board in the 
 district Avhere the vessel belongs, and, if need be, cause the negligent or 
 offending parties to be prosecuted ; and if he has good reason to believe 
 there has been, through negligence, or from any other cause, a failure of 
 the board who inspected the vessel to do its duty, he shall report the facts 
 in writing to the secretary of the treasury, who shall cause immediate in- 
 vestigation into the truth of tlie complaint, and if he deems the cause suf- 
 ficient, shall remove the delinquent. 
 
 Sec. 21. And be it further enacted, That it shall be the duty of such super- 
 vising inspectors to see that the said several boards within their respective 
 collection districts execute their duties faithfully, promptly, and, as far as 
 possible, uniformly, in all places, by following out the provisions of this act, 
 according to the true intent and meaning thereof; and they shall, as far as 
 practicable by their established rules, harmonize differences of opinion 
 when they exist in different boards. 
 
 Sec. 22. And be it further enacted, That the said supervising inspectors 
 shall also visit collection districts in which there are no boards of inspec- 
 tors, if there be any where steamers are owned or employed, and each 
 one shall have full power to inspect any such steamer or boilers of eacli 
 steamer in any such district, or in any other district where, from distance 
 or other cause, it is inconvenient to resort to the local board, and to grant 
 certificates of approval according to the provisions of this act, and to do 
 and perform in such districts all the duties imposed upon boards in the dis- 
 tricts where they exist : Provided, That no supervising or other inspector 
 shall be deemed competent to inspect in any case where he is directly or 
 indirectly personally interested, or is associated in business with any 
 person who is so interested, but in all such cases the duty shall be per- 
 formed by disinterested inspectors ; and inspection made in violation of this 
 rule shall be void and of no effect. 
 
 Sec. 23. And be it further enacted, That it shall be the duty of each of the 
 collectors or other chief officer of the customs for the districts aforesaid, ex- 
 cept San Francisco, to make known without delay, to the collectors of all 
 the said districts, except San Francisco, the names of all persons licensed 
 as engineers or pilots for such vessels, and the names of all persons from 
 whom upon application, licenses have been withheld, and the names of all 
 whose licenses have been revoked or suspended, and also the names of all 
 such vessels which neglect or refuse to make such repairs as may be or- 
 dered under the provisions of this act, and the names of all for which license 
 has been, on application, refused. 
 
 VOL. II. 41
 
 642 APPENDIX. 
 
 Sec. 24. A)id be it further enacted, That it shall be the duty of the col- 
 lectors or other chief officers of the customs and of the inspectors aforesaid, 
 within the said several districts, to enforce the provisions of law against all 
 such steamers arriving and departing ; and upon proof that any collector or 
 other chief officer of the customs, or inspector, has negligently or inten- 
 tionally omitted his duty in this particular, such delinquent shall be removed 
 from office, and shall also be subject to a penalty of one hundred dollars 
 for each offence, to be sued for in an action of debt before any court of com- 
 petent jurisdiction. 
 
 Sec. 25. And be it further enacted, That the collector, or other chief officer 
 of the customs, shall retain on file all original certificates of the inspectors 
 required by this act to be delivered to him, and shall give to the master or 
 owner of the vessel therein named, two certified copies thereof, one of which 
 shall be placed by such master or owner in some conspicuous place in the 
 vessel, where it will be most likely to be observed by passengers and others, 
 and there kept at all times ; the other shall be retained by such master or 
 owner as evidence of the authority thereby conferred ; and if any person 
 shall receive or carry any passenger on board any such steamer not having 
 a certified copy of the certificate of approval as required by this act, placed 
 and kept as aforesaid ; or who shall receive or carry any gunpowder, oil of 
 turpentine, oil of vitriol, camphene, or other explosive burning fluids, or 
 materials which ignite by fz'iction, as freight, on board any steamer carrying 
 passengei-s, not having a certificate authorizing the same, and a certified copy 
 thereof placed and kept as aforesaid ; or who shall stow or carry any of said 
 articles, at a place or in a manner not authorized by such certificate, shall 
 forfeit and pay for each offence one hundred dollars, to be recovered by ac- 
 tion of debt in any court of competent jurisdiction. 
 
 Sec. 26. And be it further enacted, That every inspector who shall wil- 
 fully certify falsely touching any such vessel propelled in whole or in part 
 by steam, and carrying passengers, her hull, accommodations, boilers, en- 
 gines, machinery, or their appurtenances, or any of her equipments, or any 
 matter or thing contained in any certificate signed and sworn to by him, shall, 
 on conviction thereof, be punished by fine not exceeding five hundred dollars, 
 or imprisonment not exceeding six months, or both. 
 
 Sec. 27. And be it further enacted, That if any such vessel carrying pas- 
 sengers, having a license and certificate, as required by this act, shall be 
 navigated without having her hull, accommodations, boilers, engines, machin- 
 ery, and their appurtenances, and all equipments, in all things conformable 
 to such certificate, the master or commander by whom she shall be so navi- 
 gated, having knowledge of such defect, shall be punished by fine not exceed- 
 ing one hundred dollars, or imprisonment not exceeding two months, or both : 
 Provided, That such master or commander shall not be liable for loss or de-
 
 APPENDIX. 643 
 
 ficiency occasioned by the dangers of navigation, if such loss or deficiency 
 shall be supplied as soon as practicable. 
 
 Sec. 28. A)id be it further enacted, That on any such steamers navigating 
 rivers only, when from darkness, fog, or other cause, the pilot on watch shall 
 be of opinion that the navigation is unsafe, or, from accident to, or derange- 
 ment of, the machinery of the boat, the engineer on watch shall be of opinion 
 that the further navigation of the vessel is unsafe, the vessel shall be brought 
 to anchor, or moored, as soon as it prudently can be done : Provided, That 
 if the person in command shall, after being so admonished by either of such 
 officers, elect to pursue such voyage, he may do the same ; but in such case 
 both he and the owners of such steamer shall be answerable for all damages 
 which shall arise to the person of any passenger and his baggage from said 
 causes in so pursuing the voyage, and no degree of care or diligence shall in 
 such case be held to justify or excuse the person in command, or said owners. 
 
 Sec. 29. And he it further enacted. That it shall be the duty of the super- 
 vising inspectors to establish such rules and regulations to be observed by all 
 such vessels in passing each other, as they shall from time to time deem neces- 
 sary for safety ; two printed copies of which rules and regulations, signed by 
 said inspectors, shall be furnished to each of such vessels, and shall at all 
 times be kept up in conspicuous places on such vessels, which rules shall be 
 observed both night and day. Should any pilot, engineer, or master of any 
 such vessel neglect or wilfully refuse to observe the foregoing regulations, 
 any delinquent so neglecting or refusing shall be liable to a penalty of thirty 
 dollars, and to all damage done to any passenger, in his person or baggage, 
 by such neglect or refusal ; and no such vessel shall be justified in coming 
 into collision with another, if it can be avoided. 
 
 Sec. 30. And be it further enacted, That whenever damage is sustained 
 by any passenger or his baggage, from explosion, fire, collision, or other cause, 
 the master and the owner of such vessel, or either of thom, and the vessel, 
 shall be liable to each and every person so injured, to the full amount of 
 damage, if it happens through any neglect to comply with the provisions of 
 law herein prescribed, or through known defects or imperfections of the steam- 
 ing apparatus, or of the hull ; and any person sustaining loss or injury through 
 the carelessness, negligence, or wilful misconduct of an engineer or pilot, or 
 their neglect or refusal to obey the provisions of law herein prescribed as to 
 navigating such steamers,may sue such engineer or pilot, and recover damages 
 for any such injury caused as aforesaid by any such engineer or pilot. 
 
 Sec. 31. And be it further enacted. That before issuing the annual license 
 to any such steamer, the collector or other chief ofiicer of the customs for the 
 port or district shall demand and receive from the owner or owners of the 
 steamer, as a compensation for the inspections and examinations made for 
 the year, the following sums, in addition to the fees for issuing enrolments
 
 644 APPENDIX. 
 
 and licenses, now allowed by law, according to the tonnage of the vessel, to 
 wit : for each vessel of a thousand tons and over, thirty-five dollars ; for each 
 of five hundred tons and over, but less than one thousand tons, thirty dollars ; 
 and for each under five hundred tons and over one hundred and twenty-five 
 tons, twenty-five dollars ; and for each under one hundred and twenty-five 
 tons, twenty dollars, at the time of obtaining registry, and once in each year 
 thereafter, pay, according to the rate of tonnage before mentioned, the sum 
 of money herein fixed. And each engineer and pilot licensed as hei'ein pro- 
 vided shall pay for the first certificate granted by any inspector or inspec- 
 tors the sum of five dollars, and for each subsequent certificate one dollar, 
 to such inspector or inspectors, to be accounted for and paid over to the col- 
 lector or other chief ofiicer of the customs ; and the sums derived from all 
 the sources above specified shall be quarterly accounted for and paid over to 
 the United States in the same manner as other revenue. 
 
 Sec. 32. A)id be it further enacted, That each inspector shall keep an 
 accurate account of every such steamer boarded by him during the year, 
 and of all his official acts and doings, which in the form of a report he 
 shall communicate to the collector or other chief officer of the customs, on 
 the first days of May and November, in each year. 
 
 Sec. 33. And be it further enacted, That the inspectors in the following 
 districts shall each be allowed, annually, the following compensation, to be 
 paid under the direction of the secretary of the treasury, in the manner 
 officers of the revenue are paid, to wit : 
 
 For the district of Portland, in Maine, three hundred dollars. 
 
 For the district of Boston and Charlestown, in Massachusetts, eight 
 hundred dollars. 
 
 For the district of New London, in Connecticut, three hundred dol- 
 lars. 
 
 For the district of New York, two thousand dollars. 
 
 For the district of Philadelphia, in Pennsylvania, one thousand dol- 
 lars. 
 
 For the district of Baltimore, in Maryland, one thousand dollars. 
 
 For the district of Norfolk, in Virginia, three hundred dollars. 
 
 For the district of Charleston, in South Carolina, four hundred dol- 
 lars. 
 
 For the district of Savannah, in Georgia, four hundred dollars. 
 
 For the district of Mobile, in Alabama, one thousand dollai's. 
 
 For the district of New Orleans, or in which New Orleans is the port 
 of entry, in Louisiana, two thousand dollars. 
 
 For the district of Galveston, in Texas, three hundred dollars. 
 
 For the district of St. Louis, in Missouri, fifteen hundred dollars. 
 
 For the district of Nashville, in Tennessee, four hundred dollars.
 
 APPENDIX. 645 
 
 For the district of Louisville, in Kentucky, twelve hundred dollars. 
 
 For the district of Cincinnati, Ohio, fifteen hundred dollars. 
 
 For the district of Wheeling, Virginia, five hundred dollars. 
 
 For the district of Pittsburg, Pennsylvania, fifteen hundred dollars. 
 
 For the district of Chicago, Illinois, five hundred dollars. 
 
 For the district of Detroit, Michigan, eight hundred dollars. 
 
 For the district of Cleveland, Ohio, five hundred dollars. 
 
 For the district of Buffalo, New York, twelve hundred dollars. 
 
 For the district of Oswego, or of which Oswego is the port of entry, 
 New York, three hundred dollars. 
 
 For the district of Vermont, two hundred dollars. 
 
 For the district of San Francisco, California, fifteen hundred dollars. 
 
 Sec 34. And be it further enacted, That the secretary of the treasury 
 shall provide the inspectors with a suitable number of instruments, of 
 uniform construction, so as to give uniform results to test the strength of 
 boilers. 
 
 Sec. 35. And be it further enacted, That it shall be the duty of the 
 master of any such steamer to cause to be kept a correct list of all the 
 passengers received and delivered from day to day, noting the places 
 W'here received and where landed, which record shall be open to the in- 
 spection of the inspectors and officers of the customs at all times ; and in 
 case of default, through negligence or design, the said master shall forfeit 
 one hundred dollars, which penalty, as well as that for excess of passen- 
 gers, shall be a lien upon the vessel : Provided, however, a bond may, as 
 provided for in other cases, be given to secure the satisfaction of the judg- 
 ment. 
 
 Sec. 36. And he it further enacted, That every master or commander 
 of any such steamer shall keep on board of such steamer at least two 
 copies of this act to be furnished to him by the secretary of the treasury ; 
 and if the master or commander neglects or refuses so to do, or shall un- 
 reasonably refuse to exhibit a copy of the same to any passenger who shall 
 ask it, he shall forfeit twenty dollai'S. 
 
 Sec. 37. And be it further enacted, That any inspector who shall, upon 
 any pretence, receive any fee or reward for his services rendered under 
 this act, except what is herein allowed to him, shall forfeit his office ; and 
 if found guilty, on indictment, be otherwise punished according to the 
 aggravation of the offence, by fine not exceeding five hundred dollars, or 
 imprisonment not exceeding six months, or both. 
 
 Sec. 38. And he it further enacted. That all engineers and pilots of any 
 such vessel shall, before entering upon their duties, make solemn oath be- 
 fore one of the inspectors herein provided for, to be recorded with the 
 certificate, that he will faithfully and honestly, according to his best skill
 
 646 APPENDIX. 
 
 and judgment, perform all the duties required of him by this act, without 
 concealment or reservation ; and if any such engineer, pilot, or any 
 witness summoned under this act as a witness, shall, when under exami- 
 nation on oath, knowingly and intentionally falsify the truth, such person 
 shall be deemed guilty of perjury, and, if convicted, be punished accord- 
 ingly. 
 
 Sec. 39. And be it further enacted, That the supervising inspectors ap- 
 pointed under the provisions of this act, shall, within their respective dis- 
 tricts, under the direction of the secretary of the treasury, take the ex- 
 amination, or receive the statements in writing of persons of practical 
 knowledge and experience in the navigation of steam vessels, the con- 
 struction and use of boilers, engines, machinery, and equipments, touching 
 the form, material, and construction of engines and their appurtenances ; 
 the causes of the explosion of boilers and collapse of flues and the means 
 of prevention ; the kind and description of safety-valves, water and 
 steam gauges or indicators ; equipments for the extinguishment of fires, 
 and for the preservation of life in case of accident, on board of such ves- 
 sels, and all other means in use or proper to be adopted, for the better 
 security of the lives of persons on board vessels propelled in whole or in 
 part by steam ; the advantages and disadvantages of the different descrip- 
 tions of boilers, engines, and their appurtenances, safety-valves, water and 
 steam gauges or indicators, equipments for the prevention or extinguish- 
 ment of fires, and the preservation of life in case of accident, in use on 
 board such vessels ; whether any, and what further legislation is necessary 
 or proper for the better security of the lives of persons on board such 
 steam vessels ; which examination and statements so taken and received 
 shall be transmitted to the secretary of the treasury at such time as he 
 shall prescribe. 
 
 Sec. 40. Aiid be it further enacted, That it shall be the duty of the 
 secretary of the treasury to cause such interrogatories to be prepared and 
 published as in his opinion may be proper to elicit the information con- 
 templated by the preceding section, and upon the receipt of the examina- 
 tion and statements taken by the inspectors shall report the same to Con- 
 gress, together with the recommendation of such further pi'ovisions as he 
 may deem proper to be made for the better security of the lives of persons 
 on board steam vessels. 
 
 Sec. 41. And be it further enacted, That all penalties imposed by this 
 act may be recovered in an action of debt by any person who will sue 
 therefor in any court of the United States. 
 
 Sec. 42. And be it farther enacted. That this act shall not apply to 
 public vessels of the United States or vessels of other countries ; nor to 
 steamers used as ferry-boats, tug-boats, towing-boats, nor to steamers not
 
 APPENDIX. 647 
 
 exceeding one hundred and fifty tons burden and used in whole or in part 
 for navigating canals. The inspection and certificate required by this act 
 shall in all cases of ocean steamers constructed under conti:act with the 
 United States for the purpose, if desired, of being converted into war 
 steamers, be made by a chief engineer of the navy to be detailed for that 
 service by the secretary of the navy, and he shall report both to said 
 secretary and to the supervising inspector of the district where he shall 
 make any inspection. 
 
 Sec. 43. And be it further enacted, That all such parts of this act as 
 authorize the appointment and qualification of inspectors, and the licens- 
 ing of engineers and pilots, shall take effect upon the passage thereof, and 
 that all other parts of this act shall go into effect at the times and places 
 as follows : in the districts of New Orleans, St. Louis, Louisville, Cincin- 
 nati, "Wheeling, Pittsburg, Nashville, Mobile, and Galveston, on the first 
 day of January next, and in all other districts on the first day of March 
 next. 
 
 Sec. 44. And he it further enacted, That all parts of laws heretofore 
 made, which are suspended by or are inconsistent with this act, are here- 
 by repealed. 
 
 ACT OF 1852, CHAPTER 113 (10 U. S. Stats, at Large, 140). 
 An Act to establish certain Post-Roads, and for other Purposes. 
 
 Section 5. A?id be it further enacted, That no collector, or other officer of 
 the customs, shall permit any ship or vessel, arriving within any port or 
 collection district of the United States, to make entry or break bulk until 
 all letters on board the same shall be delivered into the post-office at or 
 nearest said port or place, nor until the captain or commander of such 
 ship or vessel shall have signed and sworn to a declaration before such 
 collector or officer of the customs, in the form and to the effect following ; 
 that is to say : — 
 
 " I, A. B,, commander of the (state the name of the ship or vessel) 
 arriving from (state the place), and now lying in the port of (state the 
 name of the port), do, as required by law, solemnly swear (or affirm, as 
 the case may be) that I have, to the best of my knowledge or belief, de- 
 livered, or caused to be delivered, into the post-office at or nearest said 
 port, every letter and every bag, parcel, or package of letters that were 
 on board the (state the name of the ship or vessel) during her last voy- 
 age, and that I have so delivered, or caused to be delivered, all such letters, 
 bags, parcels, and packages as were in my possession or under my power 
 or control." 
 
 And the collector and every officer of the customs at every port, with-
 
 648 APPENDIX. 
 
 out special instructions, and every special agent of the post-office depart- 
 ment, when instructed by the postmastei'-general to make examinations 
 and seizures, shall carefully search every vessel for letters which may be 
 on board, or have been carried or tran^sported contrary to law ; and each 
 and every of such officers and agents, and every marshal of the United 
 States and his deputies, shall at all times have power to seize all letters, 
 and packages, and parcels, containing letters which shall have been sent 
 or conveyed contrary to law on board any ship or vessel, or on or over 
 any post-route of the United States, and to convey such letters to the 
 nearest pgst-office ; or may, if the postmaster-general and the secretary 
 of the treasury shall so direct, detain the said letters, or any part thereof, 
 until two months after the trial and final determination of all suits and 
 proceedings which may at any time, within six mouths after such seizure, 
 be brought against any person for sending, or carrying, or transporting any 
 such letters contrary to any provisions of any act of Congress; and one 
 half of any penalties that may be recovered for the illegal sending, carry- 
 ing, or transportation of any such letters shall be paid to the officer so 
 seizing, and the other half to the use of the 2:)ost-office department ; and 
 every package or parcel so seized, in which any letter shall be concealed, 
 shall be forfeited to the United States, and the same proceedings may be 
 had to enforce such forfeiture, as are authorized in respect to good[s], 
 wares, and merchandise forfeited by reason of any violation of the revenue 
 laws of the United States ; and all laws for the benefit and protection of 
 officers of the customs seizing goods, wares, or merchandise, for a violation 
 of any revenue law of the United States, shall apply to the officers and 
 agents making seizures by virtue of this act. 
 
 ACT OF 1852, CHAPTER 4 (10 U. S. Stats, at Large, 149.) 
 
 An Act authorizing the Secretary of the Treasury to issue Rer/isters to Vessels in certain 
 
 Cases. 1 
 
 JSe it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the Secretary of the Treas- 
 ury he, and he hereby is, authorized to issue a register or enrolment for 
 any vessel built in a foreign country, whenever such vessel may have been 
 or shall hereafter be wrecked in the United States, and have been, or shall 
 hereafter be, purchased and repaired by a citizen or citizens thereof: Pro- 
 vided, That it shall be proved to the satisfaction of the secretary of the treas- 
 ury that the repairs put upon such vessel shall be equal to three fourths of 
 the cost of said vessel when so repaired. 
 
 > See Act of 1866, c. 213.
 
 APPENDIX. 649 
 
 ACT OF 1853, CHAPTER 80 (10 U. S. Stats, at Large, 168). 
 Compensation to Seamen sent Home as Witnesses. 
 
 There shall be paid to such seaman or other person as has been or shall 
 be sent to the United States from any foreign port, station, sea, or ocean, 
 by any United vStates minister, charge d'affaires, consul, commander, or 
 captain, to give testimony in any criminal case which has been or may 
 be depending in any court of the United States, such compensation as the 
 court which had or shall have cognizance of the crime, shall adjudge to be 
 right and proper, not to exceed one dollar for each day the said seaman or 
 person has been or shall be necessarily on the voyage, and arriving at the 
 place of examination or trial, exclusive of sustenance and transportation ; 
 the court to take into consideration, in fixing said compensation, the con- 
 dition of said seaman or witness ; whether his voyage has been broken up, 
 to his injury, by his being sent to the United States, or not. 
 
 If the said seaman or person has been or shall be transported in an 
 armed vessel of the United States, no charge for sustenance or transporta- 
 tion shall be made ; if in any other vessel, the court may adjudge what 
 compensation shall be paid to the captain of said vessel, and the same shall 
 be paid accordingly : Provided, That in no case shall transportation and 
 subsistence be allowed at a rate exceeding fifty cents per diem. 
 
 ACT OF 1853, CHAPTER 96 (10 U. S. Stats, at Large, 182). 
 
 An Act to supply Deficiencies in the Appropriations for the Service of the fiscal Year end- 
 ing the thirtieth of June, one thousand ehjht hundred and fifty-three. 
 
 For expenses which may be incurred in acknowledging the services of 
 the masters and crews of foreign vessels in rescuing American citizens and 
 American vessels from shipwreck, two thousand dollars : Provided, That 
 the money shall be expended under the direction of the President of the 
 United States. 
 
 RESOLUTION No. 13 (10 U. S. Stats, at Large, 262). 
 
 A Resolution in Amendment of a Joint Resolution relating to the Duties of Inspectors of Steam- 
 ers, approved the seventh day of January, eighteen hundred and fifty-three. 
 
 Resolved hy the Senate and House of Representatives of the United States 
 of America in Congress assembled, That it shall be the duty of the In- 
 spectors of Steamers to exercise the powers conferred upon them by a joint 
 resolution of Congress, approved the seventh day of January, eighteen hun-
 
 650 APPENDIX. 
 
 dred and fifty-three, subject to all the restrictions and limitations therein 
 contained : Provided, That the time granted to applicants shall in no case 
 extend beyond the first day of June next. 
 
 Sec. 2. And he it further resolved, That the said Inspectors may ap- 
 prove of boilers and steam-pipes made prior to the first day of July next, 
 and subsequent to the passage of the act approved the thirtieth of August 
 eighteen hundred and fifty-two, entitled " An act to amend an act entitled 
 an act to provide for the better security of the lives of passengers on board 
 of vessels propelled in whole or in part by steam, and for other purposes," 
 if the same be not made with stamped iron : Provided, it shall appear that 
 stamped iron could not be seasonably procured. 
 
 Sec. 3. And he it further enacted, That the said Inspectors shall here- 
 after be authorized and empowered, upon satisfactory proof that the owner 
 or owners of a steamer are unable to obtain seasonably, or upon reasonable 
 terms, a metallic life-boat, as required by said act, or that such a boat is 
 unsuited to the navigation in which a steamer is employed, to accept in any 
 such case a substitute or substitutes for such metallic life-boat : Provided, 
 such substitute shall in their judgment aflford safe and suitable means of 
 preserving life in case of accident. 
 
 Sec. 4. And he it further resolved. That no person interested as 
 patentee, in any way, direct or indirect, in life-preservers, life-boats, or any 
 other article required for steamers by the law of August thirtieth, eighteen 
 hundred and fifty-two, aforesaid, shall be deemed competent to hold the 
 ofiice of inspector or to discharge the duties thereof. 
 
 ACT OF 1855, CHAPTER 123 (10 U. S. Stats, at Large, 614). 
 
 An Act concerning the Apprehension and Delivery of Deserters from foreign Vessels in the 
 Ports of the United States. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled. That the commissioners who now 
 are, or hereafter may be, appointed by the circuit courts of the United 
 States, to take acknowledgments of bail, and for other purposes, may and 
 shall exercise all the powers conferred on any court, judge, or other mag- 
 istrate by the act approved the second day of March, one thousand eight 
 hundred and twenty-nine, entitled " An Act to provide for the apprehen- 
 sion and delivery of deserters from certain foreign vessels in the ports of 
 the United States."
 
 APPENDIX. 651 
 
 ACT OF 1855, CHAPTER 133 (10 U. S. Stats, at Large, 624). 
 An Act to remodel the Diplomatic and Consular Systems of the United States. 
 Section 15. A^id be it further enacted, That no consul or commercial 
 agent of the United States shall discharge any mariner, being a citizen of 
 the United States, in a foreign port, without requiring the payment of the 
 two months' wages, to which said mariner is entitled under the provisions of 
 the act of February twenty-eight, eighteen hundred and three, unless, upon 
 due investigation into the circumstances under which the master and mar- 
 iner have jointly applied for such discharge, and on a private examination 
 of such mariner by the consul or commercial agent, separate and apart from 
 all officers of the vessel, the consul or commercial agent shall be satisfied 
 that it is for the interest and welfare of such mariner to be so discharged ; 
 nor shall any consul or commercial agent discharge any mariner as aforesaid 
 without requiring the full amount of three months' wages, as provided by the 
 above-named act, unless under such circumstances as will, in his judgment, 
 secure the United States from all liability to expense on account of such 
 mariner : Provided, That in the cases of stranded vessels, or vessels con- 
 demned as unfit for service, no payment of extra wages shall be required ; 
 and where any mariner, after his discharge, shall have incurred expense at 
 the port of discharge before shipping again, such expense shall be paid out 
 of the two months' wages aforesaid, and the balance only delivered to him. 
 
 Sec. 1G. A7id be it further enacted, That every consul and commercial 
 agent of the United States shall keep a detailed list of all mariners dis- 
 charged by them respectively, specifying their names and the names of the 
 vessels from which they were discharged, and the payments, if any, after- 
 wards made on account of each, and shall make ofiicial returns of said lists 
 half-yearly to the treasury department. 
 
 Sec. 17. A^id be it further enacted. That every consul and commercial 
 agent of the United States shall make an official entry of every discharge^ 
 which they may grant, respectively, on the list of the crew and shipping 
 articles of the vessel from which such discharge shall be made, specifying 
 the payment, if any, which has been required in each case ; and if they 
 shall have remitted the payment of the two months' wages to which the 
 mariner is entitled, they shall also certify on said shipping list and articles 
 that they have allowed the remission, upon the joint application of the 
 master and mariner therefor, after a separate examination of the mariner, 
 after a due investigation of all the circumstances, and after being satisfied 
 that the discharge so allowed, without said payment, is for the interest and 
 welfare of the mariner ; and if they shall have remitted the payment of the 
 one month's wages to which the United States is entitled, they shall certify
 
 652 APPENDIX. 
 
 that they have allowed the remission, after a due investigation of all the 
 circumstances, and after being satisfied that they are such as will, in their 
 judgment, secure the United States from all liability to expense on account 
 of such mariner ; and a copy of all such entries and certificates shall be 
 annually transmitted to the treasury department by the proper officers of 
 the customs in the several ports of the United States. 
 
 Sec. 18. And be it further enacted, That if any consul or commercial 
 agent of the United States, upon discharging a mariner without requiring 
 the payment of the one month's wages to which the United States is en- 
 titled, shall neglect to certify in the manner required in such case by the 
 preceding section of this act, he shall be accountable to the treasury de- 
 partment for the sum so remitted. And in any action brought by a mariner 
 to recover the extra wages to which he is entitled under the act of Febru- 
 ary twenty-eighth, eighteen hundred and three, the defence that the pay- 
 ment of such wages was duly remitted shall not be sustained without the 
 production of the certificate in such case required by this act, or, when its 
 non-production is accounted for, by the production of a certified copy 
 thereof; and the truth of the facts certified to, and the proi^riety of the re- 
 mission, shall be still open to investigation. 
 
 Sec. 19. And be it further enacted, That if, upoa the application of any 
 mariner, it shall appear to the consul or commercial agent that he is en- 
 titled to his discharge under any act of Congress, or according to the gen- 
 eral principles of the maritime law as recognized in the United States, he 
 shall discharge such mariner, and shall require of the master the payment 
 of three months' wages, as provided in the act of February twenty-eighth, 
 eighteen hundred and three, and shall not remit the same, or any part 
 thereof, except in the cases mentioned in the proviso of the ifinth clause of 
 the first section of the act of July twentieth, eighteen hundred and forty, 
 to the following effect : " If the consul or other commercial agent shall be 
 satisfied the contract has expired, or the voyage been protracted by circum- 
 stances beyond the control of the master, and without any design on his 
 part to violate the articles of shipment, then he may, if he deems it just, 
 discharge the mariner without exacting the three months' additional pay." 
 
 Sec. 20. And be it further enacted, That every consul and commercial 
 agent, for any neglect to pei'form the duties enjoined upon him by this act, 
 shall be liable to any injured pei'son for all damages occasioned thereby ; 
 and, for any violation of the provisions of the fifteenth and nineteenth sec- 
 tions of this act, shall also be liable to indictment, and to a penalty in the 
 manner provided by the eighteenth clause of the first section of the act of 
 July twentieth, eighteen hundred and forty.
 
 APPENDIX. 653 
 
 ACT OF 1855, CHAPTER 213 (10 U. S. Stats, at Large, 715). 
 
 An Act to regulate the Carriage of Passengers in Steamships and other Vessels. ^ 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That no master of 
 any vessel owned in whole or in part by a citizen of the United States, or 
 by a citizen of any foreign country, shall take on board such vessel, at 
 any foreign port or place other than foreign contiguous territory - of the 
 United States, a greater number of passengers than in proportion of one 
 to every two tons of such vessel, not including children under the age of 
 one year in the computation, and computing two children over one and 
 under eight years of age as one passenger. That the spaces appro- 
 priated for the use of such passengers, and which shall not be occupied 
 by stores or other goods, not the personal baggage of such passengers, 
 shall be in the following proportions, viz : On the main and poop decks 
 or platforms^ and in the deck houses, if there be any, one passenger for 
 each sixteen clear superficial feet of deck, if the height or distance be- 
 tween the decks or platform shall not be less than six feet ; and on the 
 lower deck (not being an orlop deck), if any, one passenger for eighteen 
 such clear superficial feet, if the height or distance between the decks or 
 platforms shall not be less than six feet, but so as that no passenger shall 
 be carried on any other deck or platform, nor upon any deck where the 
 height or distance between deoks is less than six feet, with intent to bring 
 such passenger to the United States, and shall leave such port or place 
 and bring the same, or any number thereof, within the jurisdiction of the 
 United States ; or if any such master of any vessel shall take on board 
 his vessel, at any port or place within the jurisdiction of the United 
 States, any greater number of passengers than in the proportion aforesaid, 
 to the space aforesaid, or to the tonnage aforesaid, with intent to carry 
 the same to any foreign port or place other than foreign contiguous terri- 
 tory, as aforesaid, every such master shall be deemed guilty of a misde- 
 meanor, and, upon conviction thereof, before any circuit or district court 
 of the United States, shall, for each passenger taken on board beyond the 
 limit aforesaid, or the space aforesaid, be fined in the sum of fifty dollars, 
 and may also be imprisoned, at the discretion of the judge before whom 
 the penalty shall be recovered, not exceeding six months ; but should it 
 be necessary, for the safety or convenience of the vessel, that any portion 
 of her cargo, or any other articles or article, should be placed on, or 
 stored in, any of the decks, cabins, or other places appropriated to the 
 
 1 See Act of 18G4, c. 249 ; Act of 1866, c. 162 ; Act of 1866, c. 234. 
 * See Act of 1864, c. 249.
 
 654 APPENDIX. 
 
 use of passengers, the same may be placed in lockers or enclosures pre- 
 pared for the purpose, on an exterior surface impervious to the wave, 
 capable of being cleansed in like manner as the decks or platforms of the 
 vessel. In no case, however, shall the places thus provided be deemed 
 to be a part of the space allowable for the use of passengers, but the 
 same shall be deducted therefrom, and in all cases where prepared or 
 used the upper surface of said lockers on enclosed spaces shall be 
 deemed and taken to be the deck or platform from which measurement 
 shall be made for all the purposes of this act. It is also provided, that 
 one hospital, in the spaces appropriated to passengers, and separate there- 
 from by an appropriate partition, and furnished as its purposes require, 
 may be prepared, and, when used, may be included in the space allowable 
 for passengers ; but. the same shall not occupy more than one hundred 
 superficial feet of deck or platform: Provided, That on board two-deck 
 ships, where the height between the decks is seven and one half feet or 
 more, fourteen clear superficial feet of deck shall be the proportion re- 
 quired for each passenger. 
 
 Sec. 2. And be it further enacted, That no such vessel shall have 
 more than two tiers of berths, and the interval, between the lowest part 
 thereof and the deck or platform beneath, shall not be less than nine 
 inches, and the berths shall be well constructed, parallel with the sides of 
 the vessel, and separated from each other by partitions, as berths ordi- 
 narily are separated, and shall be at least six feet in length, and at least 
 two feet in width, and each berth shall be occupied by no more than one 
 passenger ; but double berths of twice the above width may be con- 
 structed, each berth to be occupied by no more, and by no other, than 
 two women, or by one woman and two children under the age of eight 
 years, or by husband and wife, or by a man and two of his own children 
 under the age of eight years, or by two men, members of the same 
 family ; and if there shall be any violation of this section in any of its 
 provisions, then the master of the vessel, and the owners thereof, shall 
 severally foi'feit and pay the sum of five dollars for each passenger on 
 board of said vessel on such voyage, to recovered by the United States 
 in any port where such vessel may arrive or depart. 
 
 Sec. 3. And be it further enacted, That all vessels, whether of the 
 United States or any foreign country, having sufficient capacity or space, 
 according to law, for fifty or more passengers (other than cabin passen- 
 gers), shall, when employed in transporting such passengers between the 
 United States and Europe, have on the upper deck, for the use of such 
 passengers, a house over the passage-way leading to the apartments allot- 
 ted to such passengers below deck, firmly secured to the deck or comb- 
 ings of the hatch, with two doors, the sills of which shall be at least one
 
 APPENDIX 655 
 
 foot above the deck, 'so constructed, that one door or window in such 
 house may at all times be left open for ventilation ; and all vessels so 
 employed, and having the capacity to carry one hundred and fifty such 
 passengers or more, shall have two such houses ; and the stairs or ladder, 
 leading down to the aforesaid department, shall be furnished with a hand- 
 rail of wood or strong rope ; but booby hatches may be substituted for 
 such houses. 
 
 Sec. 4. A7id he it further enacted, That every such vessel so employed, 
 and having the legal capacity for more than one hundred such passengers, 
 shall have at least two ventilators to purify the apartment or apartments 
 occupied by such passengers ; one of which shall be inserted in the after 
 part of the apartment or apartments, and the other shall be placed in the 
 forward portion of the apartment or apartments, and one of them shall 
 have an exhausting cap to carry off the foul air, and the other a receiving 
 cap to carry down the fresh air ; which said ventilators shall have a capac- 
 ity proportioned to the size of the apartment or apartments to be purified, 
 namely, if the apartment or apartments will lawfully authorize the recep- 
 tion of two hundred such passengers, the capacity of such ventilators shall 
 each be equal to a tube of twelve inches diameter in the clear, and in pro- 
 portion for larger or smaller apartments ; and all said ventilators shall rise 
 at least four feet six inches above the upper deck of any such vessel, and 
 be of the most approved form and construction ; but if it shall appear, 
 from the report, to be made and approved, as hereinafter provided, that 
 such vessel is equally well ventilated by any other means, such other 
 means of ventilation shall be deemed and held to be a compliance with the 
 provisions of this section. 
 
 Sec. 5. And be it further enacted, That every vessel carrying more than 
 fifty such passengers shall have for their use on deck, housed and conven- 
 iently arranged, at least one camboose or cooking range, the dimensions of 
 which shall be equal to four feet long and one foot six inches wide for every 
 two hundred passengers ; and provision shall be made in the manner afore- 
 said, in this ratio, for a greater or less number of passengers ; but nothing 
 herein contained'shall take away the right to make such arrangements for 
 cooking between decks, if that shall be deemed desirable. 
 
 Sec. 6. And he it further enacted. That all vessels employed as afore- 
 said shall have on board, for the use of such passengers, at the time of 
 leaving the last port whence such vessel shall sail, well secured under deck, 
 for each passenger, at least twenty pounds of good navy bread, fifteen 
 pounds of rice, fifteen pounds of oatmeal, ten pounds of wheat flour, fifteen 
 pounds of peas and beans, twenty pounds of potatoes, one pint of vinegar, 
 sixty gallons of fresh water, ten pounds of salted pork, and ten pounds of 
 salt beef, free of bone, all to be of good quality ; but at places where either
 
 656 APPENDIX. 
 
 rice, oatmeal, wheat flour, or peas and beans cannot be procured, of good 
 quality and on i-easonable terms, the quantity of either or any of the other 
 last-named articles may be increased and substituted therefor ; and, in case 
 potatoes cannot be procured on reasonable terms, one pound of either of 
 said articles may be substituted in lieu of five pounds of potatoes ; and the 
 captains of such vessels shall deliver to each passenger at least one tenth 
 part of the aforesaid provisions weekly, commencing on the day of sailing, 
 and at least three quarts of water daily ; and if the passengers on board of 
 any such vessel in which the provisions and water herein required shall not 
 have been provided as aforesaid, shall, at any time, be put on short allow- 
 ance during any voyage, the master or owner of any such vessel shall pay 
 to each and every passenger who shall have been put on short allowance 
 the sum of three dollars for each and every day they may have been put 
 on short allowance, to be recovered in the circuit or district court of the 
 United States ; and it shall be the duty of the captain or master of every 
 such sliip or vessel to cause the food and provisions of all the passengers to 
 be well and properly cooked daily, and to be served out and distributed to 
 them at regular and stated hours, by messes, or in such other manner as 
 shall be deemed best and most conducive to the health and comfort of such 
 passengers, of which houi's and manner of distribution, due and sufficient 
 notice shall be given. If the captain or master of any such ship or vessel, 
 shall wilfully fail to furnish and distribute such provisions, cooked as afore- 
 said, he shall be deemed guilty of a misdemeanor, and upon conviction 
 thereof before any circuit or district court of the United States, shall be 
 fined not more than one thousand dollars, and shall be imprisoned for a 
 terra not exceeding one year : Provided, Tiiat the enforcement of this pen- 
 alty shall not affect the civil responsibility of the captain or master and 
 owners to such passengers as may have suffered from said default. 
 
 Sec. 7. And he it further enacted, That the captain of any such vessel 
 so employed is hereby authorized to maintain good discipline and such 
 habits of cleanliness among such passengers as will tend to the preservation 
 and promotion of health ; and to that end he shall cause such regulations 
 as he may adopt for this purpose to be posted up, before sailing, on board 
 such vessel, in a place accessible to such passengers, and shall keep the 
 same so posted up during the voyage ; and it is hereby made the duty of 
 said captain to cause the apartments occupied by such passengers to be kept 
 at all times in a clean, healthy state ; and the owners of every such vessel 
 so employed are required to construct the decks and all parts of said apart- 
 ment so that it can be thoroughly cleansed ; and they shall also provide a 
 safe, convenient privy or water-closet for the exclusive use of every one 
 hundred such passengers. And when the Aveather is such that said passen- 
 gers cannot be mustered on deck wilh their bedding, it shall be the duty of
 
 APPENDIX, 657 
 
 the captain of every such vessel to cause the deck, occupied by such pas- 
 sengers, to be cleansed with chloride of lime, or some other equally efficient 
 disinfecting agent, and also at such other times as said captain may deem 
 necessary. 
 
 Sec. 8. And be it further enacted, That the master and owner or own- 
 ers of any such vessel so employed, which shall not be provided with the 
 house or houses over the passage-ways, as prescribed in the third section 
 of this chapter, or with ventilators, as prescribed in the fourth section of 
 this chapter, or with the cambooses or cooking ranges, with the houses over 
 them, as prescribed in the fifth section of this chapter, shall severally for- 
 feit and pay to the United States the sum of two hundred dollars for each 
 and every violation of, or neglect to conform to, the provisions of each of 
 said sections, and fifty dollars for each and every neglect or violation of any 
 of the provisions of the seventh section of this chapter, to be recovered by 
 suit in any circuit or district court of the United States within the juris- 
 diction of which the said vessel may arrive, or from which she may be 
 about to depart, or at any place within the jurisdiction of such courts, 
 wherever the owner or owners, or captain of such vessel may be found. 
 
 Sec. 9. And be it further enacted, That the collector of the customs at 
 any port of the United States, at which any vessel so employed shall 
 arrive, or from which any such vessel shall be about to depart, shall ap- 
 point and direct one or more of the inspectors of the customs for such port 
 to examine such vessel, and report in writing to such collector, whether the 
 requirements of law have been complied with in respect to such vessel ; 
 and if such report shall state such compliance, and shall be approved by 
 such collector, it shall be deemed and held a.s prima facie evidence thereof. 
 
 Sec. 10. And be it further enacted, That the provisions, requisitions, 
 penalties, and liens of this act, relating to the space in vessels appropriated 
 to the use of passengers, are hereby extended and made applicable to all 
 spaces appropriated to the use of steerage passengers in vessels propelled 
 in whole or in part by steam, and navigating from, to, and between the 
 ports, and in manner as in this act named, and to such vessels and to the 
 masters thereof; and so much of the act entitled "An act to amend an act 
 entitled an act to provide for the better security of the lives of passengers 
 on board of vessels propelled in whole or in part by steam, and for other 
 purposes," approved August thirtieth, eighteen hundred and fifty-two, as 
 conflicts with this act, is hereby repealed ; and the space appropriated to 
 the use of steerage passengers in vessels so as above propelled and navi- 
 gated, is hereby subject to the supervision and inspection of the collector 
 of the customs at any port of the United States at which any such vessel 
 shall arrive, or from which she shall be about to depart ; and the same 
 
 VOL. II. 42
 
 658 APPENDIX. 
 
 shall be examined and reported in the same manner and bv the same offi- 
 cers by the next preceding section directed to examine and report. 
 
 Sec. 11. And he it further enacted. That the vessels bound from any 
 port in the United States to any port or place in the Pacific Ocean, or on 
 its tributaries, or from any such port or place to any port in the United 
 States on the Atlantic or its tributaries, shall be subject to the foregoing 
 provisions regulating the carriage of passengers in merchant vessels, ex- 
 cept so much as relates to provisions and water ; but the owners and mas- 
 ters of all such vessels shall in all cases furnish to each passenger the daily 
 supply of water therein mentioned ; and they shall furnish a sufficient sup- 
 ply of good and wholesome food, properly cooked ; and in case they shall 
 fail so to do. or shall provide unwholesome or unsuitable provisions, they 
 shall be subject to the penalty provided in the sixth section of this chapter, 
 in case the passengers are put on short allowance of water or provisions. 
 
 Sec. 12. And he it further enacted, That the captain or master of any 
 ship or vessel arriving in the United States, or ady of the territories there- 
 of, from any foreign place whatever, at the same time that he delivers a 
 manifest of the cargo, and if there be no cargo, then at the time of making 
 report or entry of the ship or vessel, pursuant to law, shall also deliver 
 and report to the collector of the district in which such ship or vessel shall 
 arrive, a list or manifest of all the passengers taken on board of the said 
 ship or vessel at any foreign port or place; in whieh list or manifest it 
 shall be the duty of the said master to designate particularly the age, sex, 
 and occupation of the said passengers respectively, the part of the vessel 
 occupied by each during the voyage, the country to which they severally 
 belong, and that of which it is their intention to become inhabitants ; and 
 shall further set forth whether any and what number have died on the 
 voyage ; which Ust or manifest shall be sworn to by the said master, in the 
 same manner as directed by law in relation to the manifest of the cargo ; 
 and the refusal or neglect of the master aforesaid to comply with the pro- 
 visions of this section, or any part thereof, shall incur the same penalties, 
 disabilities, and forfeitures as are provided for a refusal or neglect to report 
 and deliver a manifest of the cargo aforesaid. 
 
 Sec. 13. And he it further enacted. That each and every collector of the 
 customs, to whom such manifest or list of passengers as aforesaid shall be 
 delivered, shall quarter-yearly return copies thereof to the secretary of 
 state of the United States, by whom statements of the same shall be laid 
 before Congress at each and every session. 
 
 Sec. 14. And be it further enacted. That in case there shall have oc- 
 curred on board any ship or vessel arriving at any port or place within the 
 United States or its territories, any death or deaths among the passengers 
 (other than cabin passengers), the master, or captain, or owner, or con-
 
 APPENDIX. 659 
 
 signee of such ship or vessel, shall, within twenty-four hours after the time 
 within which the report and list or manifest of passengers mentioned in 
 section twelve of this act, is required to be delivered to the collector of the 
 customs, pay to the said collector the sum of ten dollars for each and every 
 passenger above the age of eight years, who shall have died on the voyage 
 by natural disease ; and the said collector shall pay the money thus received, 
 at such times and in such manner as the secretary of the treasury, by general 
 rules, shall direct, to any board or commission appointed by and acting under 
 the authority of the State within which the port where such ship or vessel 
 arrived is situated, for the care and protection of sick, indigent, or destitute 
 emigrants, to be applied to the objects of their appointment ; and if there be 
 more than one board or commission who shall claim such payment, the secre- 
 tary of the treasury, for the time being, shall determine which is entitled to 
 receive the same, and his decision in the premises shall be final and without 
 appeal : Provided, That the payment shall, in no case, be awarded or made 
 to any board, or commission, or association, formed for the protection or ad- 
 vancement of any particular clas.s of emigrants, or emigrants of any particular 
 nation or creed ; and if the master, captain, owner, or consignee of any ship 
 or vessel refuse or neglect to pay to the collector the sum and sums of money 
 required, and within the time prescribed by this section, he or they shall 
 severally forfeit and pay the sum of fifty dollars, in addition to such sum of 
 ten dollars, for each and every passenger upon whose death the sam.e has 
 become payable, to be recovered by the United States, in any circuit or dis- 
 trict court of the United States where such vessel may arrive, or such master, 
 captain, owner, or consignee may reside ; and when recovered, the said money 
 shall be disposed of in the same manner as is directed with respect to the sum 
 and sums required to be paid to the collector of customs. 
 
 Sec. 15. Aiid be it further enacted, Tliat the amount of the several penal- 
 ties imposed by the foregoing provisions regulating the carnage of passengers 
 in merchant vessels, shall be liens on the vessel or vessels violating those pro- 
 visions, and such vessel or vessels shall be libelled therefor in any circuit or 
 district court of the United States, where such vessel or vessels shall arrive. 
 
 Sec. 16. And be it further enacted, That all and every vessel or vessels 
 which shall or may be employed by the American Colonization Society or 
 the colonization society of any State, to transport, and which shall actually 
 transport, from any port or ports of the United States to any colony or colonies 
 on the west coast of Africa, colored emigrants, to reside there, shall be, and 
 the same are hereby, subjected to the operation of the foregoing provisions, 
 regulating the carriage of passengers in merchant vessels. 
 
 Sec. 17. And be it further enacted, That the collector of the customs shall 
 examine each emigrant ship or vessel, on its arrival at his port, and ascertain 
 and report to the secretary of the treasury the time of sailing, the length of
 
 660 APPENDIX. 
 
 the voyage, the ventilation, the number of passengers, their space on board, 
 their food, the native country of the emigrants, the number of deaths, the age 
 and sex of those who died during the voyage; together with his opinion of 
 the cause of the mortality, if any, on board, and, if none, what precautionary 
 measures, arrangements, or habits are supposed to have had any, and what 
 agency in causing the exemption. 
 
 Sec. 18. And be it further enacted, That this act shall take effect, with re- 
 spect to vessels sailing from ports in the United States on the eastern side of 
 the continent, within thirty days from the time of its approval ; and with re- 
 spect to vessels sailing from ports in the United States on the western side of 
 the continent, and from ports in Europe, within sixty days from the time of 
 its approval ; and with respect to vessels sailing from ports in other parts 
 of the world, within six months from the time of its approval. 
 
 And it is hereby made the duty of the secretary of state to give notice, in 
 the ports of Europe, and elsewhere, of this act, in such manner as he shall 
 deem proper. 
 
 Sec. 19. And he it further enacted, That from and after the time that this 
 act shall take effect with respect to any vessels, then, in respect to such ves- 
 sels, the act of second March, eighteen hundred and nineteen, entitled " An 
 act regulating passenger ships and vessels," the act of twenty-second of Feb- 
 ruary, eighteen hundred and forty-seven, entitled " An act to regulate the 
 carriage of passengers in merchant vessels"; the act of second March, 
 eighteen hundred and forty -seven, entitled " An act to amend an act entitled 
 ' An act to regulate the cari'iage of passengers in merchant vessels,' and to 
 determine the time when said act shall take effect " ; the act of thirty-first 
 January, eighteen hundred and forty-eight, entitled " An act exempting ves- 
 sels employed by the American Colonization Society in transporting colored 
 emigrants from the United States to the coast of Africa from the provisions 
 of the acts of the twenty-second February and second of March, eighteen 
 hundi'ed and forty-seven, regulating the carriage of passengers in merchant 
 vessels " ; the act of seventeenth INIay, eighteen hundi'ed and forty-eight, 
 entitled "An act to provide for the ventilation of passenger vessels, and for 
 other purposes " ; and the act of third March, eighteen hundred and forty- 
 nine, entitled " An act to extend the provisions of all laAvs now in force re- 
 lating to the carriage of passengers in merchant vessels, and the regulation 
 thereof," are hereby repealed. But nothing in this act contained shall in 
 any wise obstruct or prevent the prosecution, recovery, distribution, or re- 
 mission of any fines, penalties, or forfeitures, which may have been incurred 
 in respect to any vessels prior to the day this act goes into effect, in respect 
 to such vessels, under the laws hereby repealed, for which purpose the said 
 laws shall continue in force. 
 
 But the secretary of the treasury may, in his discretion, and upon such
 
 APPENDIX. 661 
 
 conditions as he shall think proper, discontinue any such prosecutions, or 
 remit or modify such penalties. 
 
 ACT OF 1856, CHAPTER 127 (11 U. S. Stats, at Large, 59). 
 
 An Act to regulate the Diplomatic and Consular Si/stems of the United States, and to pro- 
 vide for the Discharge and Desertion of Seamen. 
 
 Section 20. And he it further enacted, That the compensation provided 
 by this act shall be in full for all the services and personal expenses which 
 shall be rendered or incurred by the officers or persons respectively for 
 whom such compensation is provided, of wdiatever nature or kind such 
 services or personal expenses may be, or by whatever treaty, law, or in- 
 structions such services or personal expenses so rendered or incurred are 
 or shall be required ; and no allowance, other than such as is provided by 
 this act, shall be made in any case for the outfit or return home of any 
 such officer or person ; and no consular officer shall, nor shall any person 
 under any consular officer, make any charge or receive, directly or indi- 
 rectly, any compensation, by way of commission or otherwise, for receiv- 
 ing or disbursing the wages or extra wages to which any seaman or mari- 
 ner shall be entitled who shall be discliarged in any foreign country, or for 
 any money advanced to any such seaman or mariner who shall seek relief 
 from any consulate or commercial agency ; nor shall any consular officer, 
 or any person under any consular officer, be interested, directly or indi- 
 rectly, in any profit derived from clothing, boarding, or otherwise supply- 
 ing or sending home any such seaman or mariner : Provided, That such 
 prohibition as to profit shall not be construed to relieve or prevent any 
 such officer who shall be the owner or otherwise interested in any ship or 
 vessel of the United States, from transporting in such ship or vessel any 
 such seaman or mariner, or from receiving or being interested in such 
 reasonable allowance as may be made for such transportation, under and 
 by virtue of the fourth section of the act, entitled " An act supplementary 
 to the act concerning consuls and vice-consuls, and for the further protec- 
 tion of American seamen," approved February twenty-eighth, eighteen 
 hundred and three. 
 
 Sec. 25. And he it further enacted, That whenever any seaman or mari- 
 ner of any vessel of the United States shall desert such vessel, the master 
 or commander of such vessel shall note the fact and date of such deser- 
 tion on the list of the crew, and the same shall be officially authenticated 
 at the port or place of the consulate or commercial agency first visited by 
 such vessel after such desertion, if such desertion shall have occurred in a 
 foreign country, or if in such case such vessel shall not visit any place
 
 662 APPENDIX. 
 
 where there shall be any consulate or commercial agency before her return 
 to the United States, or the desertion shall have occurred in this country, 
 the fact and time of such desertion shall be officially authenticated before 
 a notary -public immediately at the first port or place where such vessel 
 shall arrive after such desertion ; and all wages that may be due to such 
 seaman or mariner, and whatever interest he may have in the cargo of 
 such vessel, shall be forfeited to and become the property of the United 
 States, and paid over for their use to the collector of the port where the 
 crew of such vessel are accounted for as soon as the same can be ascer- 
 tained ; first deducting therefrom any expense which may necessarily have 
 been incurred on account of such vessel in consequence of such desertion ; 
 and in settling the account of such wages or interest no allowance or de- 
 duction shall be made except for moneys actually paid, or goods at a fair 
 price supplied, or expenses incurred to, or for such seaman or mariner, any 
 receipt or voucher from, or arrangement with such seaman or mariner to 
 the contr.ary notwithstanding. 
 
 Sec. 26. And be it further enacted. That upon the application of any 
 seaman or mariner for a discharge, if it shall appear to the consular officer 
 that he is entitled to his discharge under any act of Congress, or accord- 
 ing to the general principles or usages of maritime law, as recognized in 
 the United States, he shall discharge such seaman or mariner, and shall 
 require from the master or commander of the ship or vessel from which 
 such discharge shall be made, the payment of three months' extra wages, 
 as provided by the act hereinbefore mentioned, approved February twenty- 
 eighth, eighteen hundred and three ; and it shall be the duty of such mas- 
 ter or commander to pay the same, and no such payment or any part 
 thereof shall be remitted in any case, except such as are mentioned in 
 the proviso of the ninth' clause of the act, entitled " An act in addition to 
 the several acts regulating the shipment and discharge of seamen and the 
 duties of consuls," approved July twentieth, eighteen hundred and forty, 
 and as hereinafter provided, and the extra wages required to be paid by 
 the said ninth clause of the last hereinbefore mentioned act, and by this 
 section, shall be applicable to the same purposes and in the same manner 
 as is directed by the said act approved February twenty-eighth, eighteen 
 hundred and three, in regard to the extra wages requu'ed to be paid 
 thereby ; and if any consular officer, when discharging any seaman or 
 mariner, shall neglect to require the payment of and collect the extra 
 wages required to be paid in the case of the discharge of any seaman or 
 mariner, by either of the said acts, as far as they shall remain in force 
 under this act or by this act, he shall be accountable to the United States 
 for the full amount of their share of such wages, and to such seaman or 
 mariner to the full amount of his share thereof; and if any seaman or
 
 APPENDIX. 663 
 
 mariner shall, after his discharge, have incurred any expense for board or 
 other necessaries at the port or place of his discharge before shipping 
 again, such expense shall be paid out of the share of the three months' 
 wages to which he shall be entitled, which shall be retained for that pur- 
 pose, and the balance only paid over to him : Provided, however, That in 
 cases of wrecked or stranded ships or vessels, or ships or vessels con- 
 demned as unfit for service, no payment of extra wages shall be required. 
 
 Sec. 27. And be it further enacted, That every consular officer shall 
 keep a detailed list of all seamen and mariners shipped and discharged by 
 him, specifying their names and the names of the vessels on and from 
 which they shall be shipped and discharged, and the payments, if any, 
 made on account of each so discharged, and also of the number of the ves- 
 sels ari'ived and departed, and the amounts of their registered tonnage, and 
 the number of their seamen and mariners, and of those who are protected, 
 and whether citizens of the United States or not, and as nearly as possible 
 the nature and value of their cargoes, and where produced, and make re- 
 turns of the same, with their accounts and other returns, to the secretary 
 of the treasury ; and no consular ofiicer shall certify any invoice unless he 
 shall be satisfied that the person making the oath or affirmation thereto is 
 the person he represents himself to be, that he is a credible person, and 
 that the statements made under such oath or affirmation are true ; and he 
 shall, thereupon, by his certificate, state that he was so satisfied ; and it 
 shall be the duty of every consular officer to furnish to the secretary of the 
 treasury, as often as shall be required, the prices current of all articles of 
 merchandise usually exported to the United States from the port or place 
 in which he shall be located. 
 
 Sec. 28. And he it further enacted. That it shall be the duty of every 
 master and commander of a ship or vessel of the United States, whenever 
 he shall have occasion for any consular or other official service, which any 
 consular officer of the United States shall be authorized by law or usage 
 officially to perform, and for which any fees shall be allowed by the said 
 rates or tariffs of fees as aforesaid, to apply to such one of the said officers 
 as may then be officially located at the consulate or commercial agency, if 
 any there be where such service shall be required, to perform such service, 
 and such master or commander shall pay to such officer such fees as shall 
 be allowed for such service, in pursuance of the provisions of this act ; and 
 if any such master or commander shall omit so to do, he shall be liable to 
 the United States for the amount of the fees lawfully chargeable for such 
 services, as though the said services had been performed by such officer ; 
 and all consular officers are hei'eby authorized and required to retain in 
 their possession all the papers of such ships and vessels, which shall be de- 
 posited with them as directed by law, till payment shall be made of all 
 demands and wages on account of such ships and vessels.
 
 664 
 
 APPENDIX. 
 
 ACT OF 1858, CHAPTER 145 (11 U. S. Stats, at Large, 313). 
 
 An Act to repeal the Fifth Section of an Act entitled " An Act to authorize the Register or 
 Enrolment and License to be issued in the Name of the President or Secretary of any 
 incorporated Company owning a Steamboat or Vessel," approved March third, eighteen hun- 
 dred and twenty-five. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the fifth section of " An act 
 to authorize the register or enrolment and license to be issued in the name 
 of the president or secretary of any incorporated company owning a steam- 
 boat or vessel," approved March third, eighteen hundred and twenty-five, 
 be, and the same is hereby, repealed. 
 
 ACT OF 1859, CHAPTER 8 (11 U. S. Stats, at Large, 375). 
 
 An Act to repeal an Act entitled " An Act authorizing the Secretary of the Treasury to 
 change the Names of Vessels in certain Cases, approved the fifth of March, one thousand 
 eight hundred and fifty-six. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the act entitled, " An Act 
 authorizing the secretary of the treasury to change the names of vessels 
 in certain cases," approved fifth March, one thousand eight hundred and 
 fifty-six, be, and the same is hereby, repealed. 
 
 ACT OF 1860, CHAPTER 8 (12 U. S. Stats, at Large, 3). 
 
 An Act to amend an Act entitled " An Act to regulate the Carriage of Passengers in Steam- 
 ships and other Vessels," approved March third, eighteen hundred and fiflyfive, for the 
 better Protection of Female Passengers, and other Purposes. 
 
 ■ Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That every master or other 
 officer, seaman or other person, employed on board of any ship or vessel of 
 the United States, who shall, during the voyage of such ship or vessel, un- 
 der promise of marriage, or by threats, or by the exercise of his authority, 
 or by solicitation, or the making of gifts or presents, seduce and have illicit 
 connection with any female passenger, shall be guilty of a misdemeanor, 
 and, upon conviction, shall be punished by imprisonment for a term not ex- 
 ceeding twelve months, or by a fine not exceeding one thousand dollars : 
 Provided, That the subsequent intermarriage of the parties seducing and 
 seduced may be pleaded in bar of a conviction. 
 
 Sec. 2. And be it further enacted, That neither the officers, seamen, nor
 
 APPENDIX. 665 
 
 Other persons employed on board of any ship or vessel bringing emigrant 
 passengers to the United States, or any of them, shall visit or frequent any 
 part of such ship or vessel assigned to emigrant passengers, except by the 
 direction or permission of the master or commander of such ship or vessel 
 first made or given for such purpose ; and every officer, seaman, or other 
 person employed on board of such ship or vessel, who shall violate the pro- 
 visions of this section shall be deemed guilty of a misdemeanor, and, on 
 conviction thereof, shall forfeit to the said ship or vessel his wages for the 
 voyage of the said ship or vessel during which the said offence has been 
 committed. Any master or commander who shall direct or permit any of- 
 ficer or seaman or other person employed on board of such ship or vessel, 
 to visit or frequent any part of said ship or vessel assigned to emigrant 
 passengers, except for the purpose of doing or performing some necessary 
 act or duty as an officer, seamen, or person employed on board of said ship 
 or vessel, shall be deemed guilty of a misdemeanor, and shall, on conviction 
 thereof, be punished by a fine of fifty dollars for each occasion on which 
 he shall so direct or permit the provisions of this section to be violated 
 by any officer, seaman, or other person employed on board of such ship or 
 vessel. 
 
 Sec. 3. Ajid he it further enacted, That it shall be the duty of the mas- 
 ter or commander of every ship or vessel bringing emigrant passengers to 
 the United States to post a written or printed notice in the English, French, 
 and German languages containing the provisions of the second section of 
 this act in a conspicuous place on the forecastle, and in the sevei-al parts of 
 the said ship or vessel assigned to emigrant passengers, and to keep the 
 same so posted during the voyage ; and upon neglect so to do, he shall be 
 deemed guilty of a misdemeanor, and, on conviction thereof, shall be pun- 
 ished by a fine not exceeding five hundred dollars. 
 
 Sec. 4. And be it further enacted, That, in case of the conviction of any 
 person under the provisions of the first section of this act, and the imposi- 
 tion of a fine, the court sentencing the person so convicted may, in its dis- 
 cretion, by an order to be entered on its minutes, direct the amount of the 
 fine, when collected, to be paid for the use or benefit of the female seduced, 
 or her child or children, if any. 
 
 Sec. 5. And he it further enacted, That no conviction shall be had under 
 the provisions of this act on the testimony of the female seduced uncorrob- 
 orated by other evidence, nor unless the indictment shall be found within 
 one year after the arrival of the ship or vessel at the port for which she 
 was destined when the offence was committed.
 
 6QQ APPENDIX. 
 
 ACT OF 1861, CHAPTER 7 (12 U. S. Stats, at Large, 264). 
 An Act to alter and regulate the Navy Ration. ^ 
 
 Section 1. JSe it enacted hy the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the navy ration shall 
 consist of the following daily allowance of provisions to each person : One 
 pound of salt pork, with half a pint of beans or peas ; or one pound of salt 
 beef, with half a pound of flour, and two ounces of dried apples, or other 
 dried fruit ; or three quarters of a pound of preserved meat, with half a 
 pound of rice, two ounces of butter, and one ounce of desiccated " mixed 
 vegetables " ; or three quarters of a pound of preserved meat, two ounces 
 of butter, and two ounces of desiccated potato ; together with fourteen 
 ounces of biscuit, one quarter of an ounce of tea, or one ounce of coffee, or 
 cocoa, two ounces of sugar, and a gill of spirits ; and of a weekly allow- 
 ance of half a pound of pickles, half a pint of molasses, and half a pint 
 of vinegar. 
 
 Sec. 2. And he it further enacted, That fresh or preserved meat may be 
 substituted for salt beef or pork, and vegetables for the other ai-ticles usually 
 issued with the salted meats ; allowing one and a quarter pound of fresh, 
 or three quarters of a pound of preserved meat for one pound of salted 
 beef or pork ; and regulating the quantity of vegetables so as to equal the 
 value of the articles for which they may be substituted. 
 
 Sec. 3. And be it further enacted, That should it be necessary to vary 
 the above-described daily allowance, it shall be lawful to substitute one 
 pound of soft bread, or one pound of flour, or half a pound of rice, for 
 fourteen ounces of biscuit ; half a pint of wine for a gill of spirits ; half a 
 pound of rice for half a pint of beans or peas ; half a pint of beans or peas 
 for half a pound of rice. 
 
 Sec. 4. And be it further enacted. That in case of necessity, the daily 
 allowance of provisions may be diminished or varied by the discretion of 
 the senior officer present in command ; but payment shall be made to the 
 persons whose allowance shall be thus diminished, according to the scale of 
 prices which is, or may be, establi^^hed for the same ; but a commander who 
 shall thus make a diminution or variation shall report to his commanding 
 officer, or to the Navy Department, the necessity for the same, and give to 
 the paymaster written orders, specifying particularly the diminution or 
 reduction which is to be made. 
 
 Sec. 5. And be it further enacted, That no commissioned or warrant 
 officer, or any person under twenty-one years of age, shall be allowed to 
 draw the spirit part of the daily ration ; and all other persons shall be per- 
 
 1 See Act of 1862, c. 57, § 4 ; Act of 1862, c. 164, § 4.
 
 APPENDIX 667 
 
 mitted to relinquish that part of their rations under such resti'iction as the 
 President of the United States may authorize ; and that the spirit portion 
 of the daily ration may be suspended or stopped by the commanding officer, 
 whenevei", in his opinion, it shall be expedient, for cause of drunkenness ; 
 and to any person who, by this section, is prohibited from drawino-, or who 
 may relinquish, the spirit part of his ration, there shall be paid, in lieu 
 thereof, the sum of four cents per day. 
 
 Sec. 6. And be it further enacted, That the provisions of this act shall 
 go into effijct in the United States on the first day of the succeeding quar- 
 ter after it becomes a law ; and in vessels abroad, on the first day of the 
 succeeding quarter after its official receipt ; that any acts and parts of acts 
 which may be contrary to, or inconsistent with, the provisions of this act, 
 shall be, and are hereby, repealed. 
 
 Sec. 7. And be it further enacted, That the Secretary of the Navy be 
 authorized to procure the preserved meats, pickles, butter, and desiccated 
 vegetables in such manner and under such restrictions and guarantees as in 
 his opinion will best insure the good quality of said articles. 
 
 ACT OF 1861, CHAPTER 48 (12 U. S. Stats, at Large, 314). 
 
 An Act supplementary to an Act entitled " An Act to protect the Commerce of the United 
 States, and punish the Crime of Piracy." 
 
 Section 1. Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled. That any vessel or boat 
 which shall be built, purchased, fitted out in whole or in part, or held for the 
 purpose of being employed in the commission of any piratical aggression, 
 search, restraint, depredation, or seizure, or in the commission of any other 
 act of piracy, as defined by the law of nations, shall be liable to be cap- 
 tured and brought into any port of the United States if found upon the 
 high seas, or to be seized if found in any port or place within the United 
 States, whether the same shall have actually sailed upon any piratical ex- 
 pedition or not, and whether any act of piracy shall have been committed 
 or attempted upon or from such vessel or boat or not ; and any such vessel 
 or boat may be adjudged and condemned, if captured by a vessel author- 
 ized as hereinafter mentioned, to the use of the United States and to that of 
 the captors, and if seized by a collector, surveyor, or marshal, then to the 
 use of the United States, after due process and trial, in like manner as is 
 provided in section four of the act to which this act is supplementary, 
 which section is hereby made in all respects appKcable to cases arising 
 under this act. 
 
 Sec. 2. And be it further enacted, That the President of the United
 
 668 APPENDIX. 
 
 States be, and hereby is, authorized to instruct the commanders of the 
 public armed vessels of the United States, and to authorize the commanders 
 of any other armed vessels sailing under the authority of any letters of 
 marque and reprisal granted by the Congress of the United States, or the 
 commanders of any other suitable vessels, to subdue, seize, take, and, if on 
 the high seas, to send into any port of the United States any vessel or boat 
 built, purchased, fitted out, or held, as in the first section of this act men- 
 tioned. 
 
 Sec. 3. And be it further enacted, That the collectors of the several ports 
 of entry, the surveyors of the several ports of delivery, and the marshals 
 of the several judicial districts within the United States be and are hereby 
 authorized and required to seize any and all vessels or boats built, pur- 
 chased, fitted out, or held as aforesaid, which may be found within their 
 respective ports or districts, and to cause the same to be proceeded against 
 and disposed of as hereinbefore provided. 
 
 ACT OF 1862, CHAPTER 27 (12 U. S. Stats, at Large, 340). 
 
 An Act to prohibit the " Coolie Trade" by American Citizens in American Vessels. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That no citizen or 
 citizens of the United States, or foreigner coming into or residing within 
 the same, shall, for himself or for any other person whatsoever, either as 
 master, factor, owner, or otherwise, build, equip, load, or otherwise prepare, 
 any ship or vessel, or any steamship or steam vessel, registered, enrolled, 
 or licensed in the United States, or any port within the same, for the pur- 
 pose of procuring from China, or from any port or place therein, or from 
 any other port or place the inhabitants or subjects of China, known as 
 " coolies," to be transported to any foreign country, port, or place whatever, 
 to be disposed of, or sold, or transferred, for any term of years or for any 
 time whatever, as servants or apprentices, or to be held to service or labor. 
 And if any ship or vessel, steamship, or steam vessel, belonging in whole 
 or in part to citizens of the United States, and registered, enrolled, or 
 otherwise licensed as aforesaid, shall be employed for the said purposes, or 
 in the "coolie trade," so called, or shall be caused to procure or carry from 
 China or elsewhere, as aforesaid, any subjects of the Government of China 
 for the purpose of transporting or disposing of them as afoi'esaid, every 
 such ship or vessel, steamship, or steam vessel, her tackle, apparel, furni- 
 ture, and other appurtenances, shall be forfeited to the United States, and 
 shall be liable to be seized, prosecuted, and condemned in any of the cir- 
 cuit courts or district courts of the United States for the district where the
 
 APPENDIX. 669 
 
 said ship or vessel, steamship or steam vessel may be found, seized, or 
 carried. 
 
 Sec. 2. And be it further enacted, That every person who shall so build, fit 
 out, equip, load, or otherwise prepare, or who shall send to sea, or navigate, 
 as owner, master, factor, agent, or otherwise, any ship or vessel, steamship 
 or steam vessel, belonging in whole or in part to citizens of the United 
 States, or registered, enrolled, or licensed within the same, or at any port 
 thereof, knowing or intending that the same shall be employed in that trade 
 or business aforesaid, contrary to the true intent and meaning of this act, or 
 in any wise aiding or abetting therein, shall be severally liable to be in- 
 dicted therefor, and, on conviction thereof, shall be liable to a fine not 
 exceeding two thousand dollars and be imprisoned not exceeding one 
 year. 
 
 Sec. 3. And be it further enacted, That if any citizen or citizens of the 
 United States shall, contrary to the true intent and meaning of this act, 
 take on board of any vessel, or receive or transport any such persons as 
 are above described in this act, for the purpose of disposing of them as 
 aforesaid, he or they shall be liable to be indicted therefor, and, on convic- 
 tion thereof, shall be liable to a fine not exceeding two thousand dollars 
 and be imprisoned not exceeding one year. 
 
 Sec. 4. And be it further eriacted, That nothing in this act hereinbe- 
 fore contained shall be deemed or construed to apply to or affect any free 
 and voluntary emigration of any Chinese subject, or to any vessel carrying 
 such person as passenger on board the same : Provided, hoioever. That a 
 permit or certificate shall be prepared and signed by the consul or consular 
 agent of the United States residing at the port from which such vessel may 
 take her departure, containing the name of such person, and setting forth 
 the fact of his voluntary emigration from such port or place, which certifi- 
 cate shall be given to the master of such vessel ; but the same shall not be 
 given until such consul or consular agent shall be first personally satisfied 
 by evidence produced of the truth of the facts therein contained. 
 
 Sec. 5. A7id be it further enacted. That all the provisions of the act of 
 Congress, approved February twenty-second, eighteen hundred and forty- 
 seven, entitled " An act to regulate the carriage of passengers in merchant 
 vessels," and all the provisions of the act of Congress approved March 
 third, eighteen hundred and forty-nine, entitled " An act to extend the pro- 
 visions of all laws now in force relating to the carriage of passengers in 
 merchant vessels and the regulation thereof," shall be extended and shall 
 apply to all vessels owned in whole or in part by citizens of the United 
 States, and registered, enrolled, or licensed within the United States, pro- 
 pelled by wind or by steam, and to all masters thereof, carrying passengers 
 or intending to carry passengers from any foreign port or place without the
 
 670 appendix' 
 
 United States to any other foreign port or place without the United States ; 
 and that all penalties and forfeitures provided for in said act shall apply to 
 vessels and masters last aforesaid. 
 
 Sec. 6. And be it further enacted, That the President of the United 
 States shall be, and he is hereby, authorized and empowered, in such way 
 and at such time as he shall judge proper to the end that the provisions of 
 this act may be enforced according to the true intent and meaning thereof, 
 to direct and order the vessels of the United States, and the masters and 
 commanders thereof, to examine all vessels navigated or owned in whole or 
 in part by citizens of the United States, and registered, enrolled, or licensed 
 under the laws of the United States, wherever they may be, whenever, in 
 the judgment of such master or commanding officer thereof, reasonable 
 cause shall exist to believe that such vessel has on board, in violation of the 
 provisions of this act, any subjects of China known as " coolies," for the 
 purpose of transportation ; and upon sufficient proof that such vessel is em- 
 ployed in violation of the provisions of this act, to cause such vessel to be 
 carried, Avith her officers and crew, into any port or district within the 
 United States, and delivered to the marshal of such district, to be held and 
 disposed of according to the provisions of this act. 
 
 Sec. 7. And he it further enacted, That this act shall take effect from and 
 after six months from the day of its passage. 
 
 ACT OF 1862, CHAPTER 57 (12 U. S. Stats, at Large, 381). 
 
 An Act making additional Appropriations for the Naval Service for the Year ending June 
 thirty, eighteen hundred and sixty-two. 
 
 Section 4. And be it further enacted, That the secretary of the navy be 
 authorized to commute the navy ration of coffee and sugar for the extract 
 of coffee combined with milk and sugar, to be procured in the same manner 
 and under like restrictions and guarantees as are preserved meats, pickles, 
 butter, and desiccated vegetables, if he shall believe it will be conducive to 
 the health and comfort of the navy, and not more expensive to the Govern- 
 ment than the present ration, and if it shall be acceptable to the men. 
 
 ACT OF 1862, CHAPTER 164 (12 U. S. Stats, at Large, 565). 
 
 An Act making Appropriations for the Naval Service for the Year ending thirtieth of June, 
 eighteen hundred and sixty-three, and for other Purposes. 
 
 Section 4. A7id be it further enacted, That from and after the first day 
 of September, eighteen hundred and sixty-two, the spirit ration in the navy
 
 APPENDIX. 671 
 
 of the United States shall forever cease, and thereafter no distilled spiritu- 
 ous liquors shall be admitted on board of vessels-of-\var except as medical 
 stores, and upon the order and under the control of the medical officers of 
 such vessels, and to be used only for medical purposes. From and after 
 the said first day of September next there shall be allowed and paid to 
 each person in the navy now entitled to the spirit ration five cents per day 
 in commutation and lieu thereof, which shall be in addition to their present 
 pay. 
 
 ACT OF 1863, CHAPTER 90 (12 U. S. Stats, at Large, 762). 
 
 An Act to protect the Liens upon Vessels in certain Cases, and for other Purposes. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That in all cases now and here- 
 after pending wherein any ship, vessel, or other property shall be con- 
 demned in any proceeding by virtue of the acts* above mentioned, or of 
 any other laws on that subject, the court rendering judgment of condemna- 
 tion shall, notwithstanding such condemnation, and before awarding such 
 ship, vessel, or other property, or the proceeds thereof, to the United 
 States, or to any informer, first provide for the payment, out of the pro- 
 ceeds of such ship, vessel, or other property, of any bond fide claims which 
 shall be filed by a'ly loyal citizen of the United States, or of :.nj foreign 
 state or power at peace and amity with the United States, intervening in 
 such proceeding, and which shall be duly established by evidence as a valid 
 claim against such ship, vessel, or other property, under the laws of the 
 United States or of any loyal state thereof: Provided, That no such claim 
 shall be allowed in any case where the claimant shall have knowingly par- 
 ticipated in the illegal use of such ship, vessel, or other property : And 
 provided, also. That this act shall extend to such claims only as might have 
 been enforced specifically against such ship, vessel, or other property, in any 
 loyal state wherein such claim arose. 
 
 ACT OF 1863, CHAPTER 95 (12 U. S. Stats, at Large, 769). 
 
 An Act to facilitate the taking of Depositions within the United States, to be used in the 
 Courts of other Countries, and for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the testimony of 
 
 * Reference is had to the act of July 13, 1861, c. 3, and to the act of August 6, 
 1861, c. 60, which were recited in the title of the bill as reported. When the 
 act was passed, its title was changed, but this clause was not altered.
 
 672 APPENDIX. 
 
 any witness residing within the United States, to be used in any suit for the 
 recovery of money or property depending in any court in any foreign 
 country with which the United States are at peace, and in which the gov- 
 ernment of such foreign country shall be a party or shall have an interest, 
 may be obtained, to be used in such suit. If a commission or letters roga- 
 tory to take such testimony shall have been issued from the court in which 
 said suit is pending, on producing the same before the district judge of any 
 district where said witness resides or shall be found, and on due proof being 
 made to such judge that the testimony of any witness is material to the 
 party desiring the same, such judge shall issue a summons to such witness 
 requiring him to appear before the officer or commissioner named in such 
 commission or letters rogatory, to testify in such suit. Such summons 
 shall specify the time and place at which such witness is required to attend, 
 which place shall be within one hundred miles of the place where said 
 witness resides or shall be served with said summons. 
 
 Sec. 2. And be it further enacted, That if any person shall refuse or 
 neglect to appear at the time and place mentioned in the summons issued, 
 in accordance with this act, or if, upon his appearance, he shall refuse to 
 testify, he shall be liable to the same penalties as would be incurred for 
 a hke offence on the trial of a suit in the district court of the United 
 States. 
 
 Sec 3. And be it further enacted, That every witness who shall appear 
 and testify, in manner aforesaid, shall be allowed and shall receive from the 
 party, at whose instance he shall have been summoned, the same fees and 
 mileage as are allowed to witnesses in suits depending in the district courts 
 of the United States. 
 
 Sec. 4. And be it further enacted. That, whenever any commission or 
 letters rogatory, issued to take the testimony of any witness in a foreign 
 country, in any suit in which the United States are parties or have an in- 
 terest, shall have been executed by the court or the commissioner to whom 
 the same shall have been directed, the same shall be returned by such court 
 or commissioner to the minister or consul of the United States nearest the 
 place where said letters or commission shall have been executed, who, on 
 receiving the same, shall indorse thereon a certificate, stating the time and 
 place when and where the same was received ; and that the said deposition 
 is in the same condition as when he received the same ; and he shall there- 
 upon transmit the said letters or commission, so executed and certified, by 
 mail, to the clerk of the court from which the same issued, in the manner 
 in which his official despatches are transmitted to the Government. And 
 the testimony of witnesses so, as aforesaid, taken and returned, shall be 
 read as evidence on the trial of the suit in which the same shall have been 
 taken, without objection as to the method of returning the same.
 
 APPENDIX. 673 
 
 ACT OF 1864, CHAPTER 40 (13 U. S. Stats, at Large, .36). 
 
 A?i Act to provide for carrying the Mails from the United States to foreign 
 Ports and for other Purposes. 
 
 Section 1. J^e it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That all steamers and 
 sailing vessels belonging to citizens of the United States, and bound from 
 any port in the United States to any foreign port, or from any foreign port 
 to any port in the United States, shall, before clearance, receive on board 
 and securely convey all such mails as the post-office department of the 
 United States, or any minister, consul, or commercial agent of the United 
 States abroad shall offer, and promptly deliver the same to the proper 
 authorities, on arriving at the port of destination, and shall receive for 
 such service such reasonable compensation as may be allowed by law. 
 
 Sec. 2. And be it further enacted, That upon the entry of every 
 steamer or sailing vessel from any foreign port, the master Or commander 
 thereof shall make return, on oath, or affirmation, showing that he has 
 promptly delivered at such foreign port or ports all mails placed on board 
 of the steamer or vessel under his command before clearance from the 
 United States. And in case the master or commander shall fail to make 
 oath or affirmation, as aforesaid, showing that he has delivered the mails 
 placed on board his steamer or vessel in good faith, the said steamer or 
 vessel shall not be entitled to the privileges of a steamer or vessel of the 
 United States. 
 
 Sec. 3. And be it further enacted, That the postmaster-general be, 
 and is hereby, authorized to make contracts, to continue not exceeding 
 four years, for the transportation of all mailable matter other than letters, 
 and of such letters as may be so directed, by the Isthmus of Panama or 
 the Nicaragua route, or both of them : Provided, That the expenditure 
 for the service shall not exceed one hundred and sixty thousand dollars 
 per annum. And in case more than one company is engaged in rendering 
 this service, the postmaster-general shall determine the proportion which 
 shall be paid to each. 
 
 Sec. 4. And be it further enacted. That all mailable matter which may 
 be conveyed by mail westward beyond the western boundary of Kansas, 
 and eastward from the eastern boundary of California shall be subject 
 to prepaid letter-postage rates : Provided, however. That this section shall 
 not be held to extend to the transmission by mail of newspapers from a 
 known office of publication to bond fide subscribers, not exceeding one 
 copy to each subscriber, nor to franked matter, to and from the interme- 
 diate points between the boundaries above named, at the usual rates ; 
 
 VOL. II. 43
 
 674 APPENDIX. 
 
 Provided, further, That such franked matter shall be subject to such 
 regulations as to its transmission and delivery as the postmaster-general 
 shall prescribe. 
 
 Sec. 5. And he it further enacted, That the postmaster-general may, 
 if he shall deem it for the public interests, enter into contracts, for any 
 period not exceeding one year, for the transportation of the mails in 
 steamships, by sea, between any of the ports in the United States ; and 
 that the sea-service already performed by his order on the Atlantic coast 
 and Gulf of Mexico be paid for out of any moneys appropriated for the 
 service of the post-office department. Also for such service already per- 
 formed upon the Pacific coast a sum not exceeding fifteen hundred dol- 
 lars, to be paid for out of any moneys appropriated for the service of the 
 post-office department. 
 
 Sec. 6. And be it further enacted, That if any person or persons shall 
 paint, print, post, or in any other manner place upon, or attach to, any 
 steamboat or other vessel, or any stage-coach or other vehicle, which steam- 
 boat or other vessel, or stage-coach or other vehicle, is not actually used in 
 carrying the mails of the United States, the words " United States mail," 
 or any other words, letters, or characters of like import ; or if any person 
 or persons shall give notice, either by publishing in any newspaper or other- 
 wise, that any steamboat or other vessel, or any stage-coach or other 
 vehicle, is used in carrying the mails of the United States, when the same 
 is not actually so used, every person so offending or wilfully aiding or 
 abetting therein, shall, on conviction thereof in any court of competent 
 jurisdiction, be fined in any sum not less than one hundred nor more 
 than five hundred dollars for every such offence ; one half for the use of 
 the United States and the other half to the use of the person informing 
 and prosecuting for the same. 
 
 Sec. 7. And he it further enacted, That the postmaster-general be, and 
 he is hereby, authorized and empowered to suspend the operation of 
 so much of the eighth section of the act of the tjjirty-first of August, 
 eighteen hundred and fifty-two, as authorizes the conveyance of letters 
 otherwise than in the mails on any such mail routes as in his opinion the 
 public interest may require. 
 
 ACT OF 1864, CHAPTER 70 (13 U. S. Stats, at Large, 61), 
 
 An Act to provide for the Collection of Hospital Dues from Vessels of the United States sold 
 or transferred in foreign Ports or Waters. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That in case of the sale or trans-
 
 APPENDIX. 675 
 
 fer of any vessel of the United States in a foreign port or water, the con- 
 sul, vice-consul, commercial agent, or vice-commercial agent of the United 
 States within whose consulate or district such sale or transfer shall have 
 been made, or in whose hands the papers of such vessel shall be, be, and he 
 is hereby, authorized and required to collect of the master or agent of such 
 vessel all moneys that shall have become due to the United States under 
 and by virtue of the act entitled " An act for the relief of sick and dis- 
 abled seamen," approved July sixteenth, seventeen hundred and ninety- 
 eight, and shall remain unpaid at the time of such sale or transfer ; and that 
 the said consul, vice-consul, commercial agent, or vice-commercial agent 
 (as the case may be) be, and he is hereby, instructed and required to re- 
 tain possession of the papers of such vessel until such money shall have been 
 paid as herein provided : and in default of which, such sale or transfer 
 shall be void, excepting as against the vendor ; Provided, That this act 
 shall not take effect until the expiration of sixty days from and after its 
 passage. 
 
 ACT OF 1864, CHAPTER 78 (13 U. S. Stats, at Large, 63). 
 An Act for the Prevention and Punishment of Frauds in Relation to the Names of Vessels. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That every steamboat 
 of the United States shall, in addition to having her name painted on her 
 stern, as now required by law, also have the same conspicuously placed in 
 distinct, plain letters, of not less than six inches in length, on each outer 
 side of the pilot-house, if it has such, and (in case the said boat has side- 
 wheels) also on the outer side of each wheel-house ; and if any such steam- 
 boat shall be found without having her name placed as herein required, 
 she shall be subject to the same penalty and forfeiture as is now provided 
 by law in the case of a vessel of the United States found without having 
 her name and the name of the port to which she belongs painted on her 
 stern, as required by law. 
 
 Sec. 2. And be it further enacted, That no master, owner, or agent of 
 any vessel of the United States shall in any way change the name of such 
 vessel, or, by any device, advertisement, or contrivance, deceive, or attempt 
 to deceive, the public, or any officer or agent of the United States Govern- 
 ment or of any State, or any corporation or agent thereof, or any person or 
 persons as to the true name of such vessel, on pain of the forfeiture 
 of such vessel : Provided, That this act shall not take effect until the ex- 
 piration of sixty days from and after its passage.
 
 676 APPENDIX. 
 
 ACT OF 1864, CHAPTER 83 (13 U. S. Stats, at Large, 69;. 
 An Act to regulate the Admeasurement of Tonnage of Ships and Vessels of the United States. ^ 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That every ship or 
 vessel built within the United States, oi* that may be owned by a citizen or 
 citizens thereof, on or after the first day of January, eighteen hundred and 
 sixty-five, shall be measui'ed and registered in the manner hereinafter pro- 
 vided ; also every ship or vessel that is now owned by a citizen or citizens 
 of the United States shall be remeasured and re-i"egistered upon her arrival 
 after said day at a port of entry in the United States, and prior to her de- 
 parture therefrom, in the same manner as hereinafter described : Provided, 
 That any sliip or vessel built within the United States after the passage of 
 this act may be measured and registered in the manner herein provided. 
 
 Sec. 2. And he it further enacted, That the register of every vessel 
 shall express her length and breadth, together with her depth and the 
 height under the third or spar deck, which shall be ascertained in the fol- 
 lowing manner : The tonnage-deck in vessels having three or more decks 
 to the hull shall be the second deck from below; in all other cases the 
 upper deck of the hull is to be the tonnage-deck. The length from the 
 forepart of the outer planking, on the side of the stem, to the afterpart of 
 the main sternpost of screw steamers, and to the afterpart of the rudder- 
 post of all other vessels measured on the top of the tonnage-deck, shall be 
 accounted the vessel's length. The breadth of the broadest part on the 
 outside of the vessel shall be accounted the vessel's breadth of beam. A 
 measure from the under side of tonnage-deck plank, amidships, to the 
 ceiling of the hold (average thickness) shall be accounted the depth of 
 hold. If the vessel has a third deck, then the height from the top of the 
 tonnage-deck plank to the under side of the upper-deck plank shall be ac- 
 counted as the height under the spar-deck. All measurement to be taken 
 in feet and fractions of feet ; and all fractions of feet shall be expressed in 
 decimals. 
 
 Sec. 3. And be it further enacted, That the register tonnage of a vessel 
 shall be her entire internal cubical capacity in tons of one hundred cubic 
 feet each, to be ascertained as follows : Measure the length of the vessel 
 in a straight line along the upper side of the tonnage-deck, from the inside 
 of the inner plank (average thickness), at the side of the stem to the inside 
 of the plank on the stern timbers (average thickness), deducting from this 
 length what is due to the rake of the bow in the thickness of the deck, and 
 what is due to the rake of the stern-timber in the thickness of the deck, and 
 
 ^ See act of 1865, c. 70.
 
 APPENDIX. 677 
 
 also what is due to the rake of the stern-timber in one third of the round 
 of the beam; divide the length so taken into the number of equal parts 
 required by the following table, according to the class in such table to which 
 the vessel belongs : — 
 
 TABLE OF CLASSES. 
 
 Class 1. — Vessels of which the tonnage length according to the above 
 measurement is fifty feet or under, into six equal parts. 
 
 Class 2. — Vessels of which the tonnage length according to the above 
 measurement is above fifty feet, and not exceeding one hundred feet long, 
 into eight equal parts. 
 
 Class 3. — Vessels of which the tonnage length according to the above 
 measurement is above one hundred feet long, and not exceeding one 
 hundred and fifty feet long, into ten equal parts. 
 
 Class 4, — Vessels of which the tonnage length according to the above 
 measurement is above one hundred and fifty feet, and not exceeding two 
 hundred feet long, into twelve equal parts. 
 
 Class 5. — Vessels of which the tonnage length according to the above 
 measurement is above two hundred feet, and not exceeding two hundred 
 and fifty feet long, into fourteen equal parts. 
 
 Class 6. — Vessels of which the tonnage length according to the above 
 measurement is above two hundred and fifty feet long, into sixteen equal 
 parts. 
 
 Then, the hold being sufficiently cleared to admit of the required depths 
 and breadths being properly taken, find the transverse area of such vessel 
 at each point of division of the length as follows : — 
 
 Measure the depth at each point of division from a point at a distance 
 of one third of the round of the beam below such deck, or, in case of a 
 break, below a line stretched in continuation thereof, to the upper side of 
 the floor-timber, at the inside of the limber-strake, after deducting the 
 average thickness of the ceiling, which is between the bilge-planks and 
 limber-strake ; then, if the depth at the midship division of the length do 
 not exceed sixteen feet, divide each depth into four equal parts ; then 
 measure the inside horizontal breadth, at each of the three points of divis- 
 ion, and also at the upper and lower points of the depth, extending each 
 measurement to the average thickness of that part of the ceiling which is 
 between the points of measurement ; number these breadths from above 
 (numbering the upper breadth one, and so on down to the lowest breadth) ; 
 multiply the second and fourth by four, and the third by two ; add these 
 products together, and to the sum add the first breadth and the last, or 
 fifth ; multiply the quantity thus obtained by one third of the common 
 interval between the breadths, and the product shall be deemed the trans- 
 verse area ; but if the midship depth exceed sixteen feet, divide each
 
 678 APPENDIX. 
 
 depth into six equal parts, instead of four, and measure, as befoi-e direct- 
 ed, the horizontal breadths at the five points of division, and also at the 
 upper and lower points of the depth ; number them from above as before ; 
 multiply the second, fourth, and sixth, by four, and the third and fifth by 
 two ; add these products together, and to the sum add the first breadth and 
 the last, or seventh ; multiply the quantities thus obtained by one third of 
 the common interval between the breadths, and the product shall be 
 deemed the transverse area. 
 
 Having thus ascertained the transverse area at each point of division 
 of the length of the vessel, as required above, proceed to ascertain the 
 register tonnage of the vessel in the following manner : — 
 
 Number the areas successively one, two, three, &c., number one being 
 at the extreme limit of the length at the bow, and the last number at the 
 extreme limit of the length at the stern ; then whether the length be 
 divided according to table, into six or sixteen parts, as in classes one and 
 six, or any intermediate number, as in classes two, three, four, and five, 
 multiply the second, and every even-numbered area by four, and the third 
 and every odd-numbered area (except the first and last) by two-; add these 
 products together, and to the sum add the first and last, if they yield any- 
 thing ; multiply the quantities thus obtained by one third of the common 
 interval between the areas, and the product will be the cubical contents of 
 the space under the tonnage-deck ; divide this product by one hundred, and 
 the quotient, being the tonnage under the tonnage-deck, shall be deemed to 
 be the register tonnage of the vessel, subject to the additions hereinafter 
 mentioned. 
 
 If there be a break, a poop, or any other permanent closed-in space on 
 the upper decks, on the spar-deck, available for cargo, or stores, or for the 
 berthing or accommodation of passengers or crew, the tonnage of such 
 space shall be ascertained as follows : — 
 
 Measure the internal mean length of such space in feet, and divide it into 
 an even number of equal parts of which the distance asunder shall be 
 most nearly equal to those into which the length of the tonnage-deck has 
 been divided ; measure at the middle of its height the inside breadths, 
 namely, one at each end and at each of the points of division, numbering 
 them successively one, two, three, &c. ; then to the sum of the end 
 breadths add four times the sum of the even-numbered breadths and twice 
 the sum of the odd-numbered breadths, except the first and last, and mul- 
 tiply the whole sum by one third of the common interval between the 
 breadths ; the product will give the mean horizontal area of such space ; • 
 then measure the mean height between the planks of the decks, and multi- 
 ply by it the mean horizontal area ; divide the product by one hundred, 
 and the quotient shall be deemed to be the tonnage of such space, and
 
 APPENDIX. 679 
 
 shall be added to the tonnage under the tonnage-decks, ascertained as 
 aforesaid. 
 
 If a vessel has a third deck, or spar-deck, the tonnage of the space be- 
 tween it and the tonnage-deck shall be ascertained as follows : — 
 
 Measure in feet the inside length of the space, at the middle of its height, 
 from the plank at the side of the stem to the plank on the timbers at the 
 stern, and divide the length into the same number of equal parts into 
 which the length of the tonnage-deck is divided ; measure (also at the mid- 
 dle of its height) the inside breadth of the space at each of the points of 
 division, also the breadth of the stem and the breadth at the stern ; num- 
 ber them successively one, two, three, and so forth, commencing at the 
 stem ; multiply the second, and all other even-numbered breadths by four, 
 and the third, and all the other odd-numbered breadths (except the first 
 and last) by two; to the sum of these products add the first and last 
 breadths, multiply the whole sum by one third of the common interval be- 
 tween the breadths, and the result will give, in superficial feet, the mean 
 horizontal are^ of such space ; measure the mean height between the plank 
 of the two. decks, and multiply by it the mean horizontal area, and the 
 product will be the cubical contents of the space ; divide this product by 
 one hundred, and the quotient shall be deemed to be the tonnage of such 
 space, and shall be added to the other tonnage of the vessel, ascertained as 
 aforesaid. And if the vessel has more than three decks, the tonnagre of 
 each space between decks, above the tonnage-deck, shall be severally 
 ascertained in the manner above described, and shall be added to the ton- 
 nage of the vessel, ascertained as aforesaid. 
 
 In ascertaining the tonnage of open vessels, the upper edge of the upper 
 strake is to form the boundary line of" measurement, and the depth shall be 
 taken from an athwartship line, extending from upper edge of said strake 
 at each division of the length. 
 
 The register of the vessel shall express the number of decks, the ton- 
 nage under the tonnage-deck, that of the between-decks, above the ton- 
 nage-deck ; also that of the poop or other enclosed spaces above the deck, 
 each separately. In every registered United States ship or vessel the 
 number denoting the total registered tonnage shall be deeply carved or 
 otherwise permanently marked on her main beam, and shall be so contin- 
 ued ; and if it at any time cease to be so continued, such vessel shall no 
 longer be recognized as a registered United States vessel. 
 
 Sec. 4. And he it further enacted, That the charge for the measure- 
 ment of tonnage and certifying the same shall not exceed the sum of one 
 dollar and fifty cents for each transverse section under the tonnage-deck ; 
 and the sum of three dollars for measuring each between-decks above the 
 tonnage-deck ; and the sum of one dollar and fifty cents for each poop, or
 
 680 APPENDIX. 
 
 closed-in space available foi' cargo or stores, or for the berthing or ac- 
 commodation of passengers, or officers and crew above the upper or spar 
 deck. 
 
 Sec. 5. And be it further enacted, That the provisions of this act shall 
 not be deemed to apply to any vessel not required by law to be registered, 
 or enrolled, or licensed, and all acts and parts of acts inconsistent with the 
 provisions of this are hereby repealed. 
 
 ACT OF 1864, CHAPTER 113 (13 U. S. Stats, at Large, 120). 
 
 An Act to create an additional supervising Inspector of Steamboats and tivo local Inspectors 
 of Steamboats for the Collection District of Memphis, Tennessee, and two local Inspectors 
 for the Collection District of Oregon, and for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the- United States of America in Congress assembled, That there shall be des- 
 ignated and appointed, in the mode prescribed by law, and who shall be paid 
 the same annual compensation as is now paid, one additional supervising in- 
 spector of steamboats, and two local inspectors of steamboats, at Portland, 
 in the collection district of Oregon, and two for the collection district of 
 Memphis, Tennessee, at an annual compensation of seven hundred dollars, 
 to be paid as provided by law, as in case of other like inspectors ; and said 
 inspectors shall perform the duties and be subject to the provisions 
 of the steamboat act of August thirtieth, eighteen hundred and fifty-two. 
 
 Sec. 2. And be it further enacted. That so much of said act as provides 
 for the appointment of two local inspectors of steamboats in the district of 
 Wheeling, on the Ohio River, and for their compensation, is hereby re- 
 pealed. 
 
 Sec. 3. And be it further enacted, That each engineer and pilot, 
 licensed according to the provisions of said act, shall pay for every certifi- 
 cate granted by any inspector or inspectors, the sum of ten dollars, to be 
 accounted for in the mode provided by law. 
 
 Sec. 4. And be it further enacted. That the forty-second section of the 
 act of August thirty, eighteen hundred and fifty-two, be so construed as to 
 require the inspection of the hull and boiler, in the manner prescribed by 
 that act, of evexy vessel propelled in whole or in part by steam, and en- 
 gaged as a ferry-boat, tug or towing-boat, or canal-boat, in all cases where, 
 under the laws of the United States, such vessels may be engaged in the 
 commerce with foreign nations, or among the several States. 
 
 Sec. 5. And be it further enacted, That all engineers and pilots of ferry- 
 boats, tug-boats, towing-boats, or canal-boats, subject to inspection by this 
 act, shall be classified and licensed in the same manner as are pilots and 
 engineers by said act of August thirty, eighteen hundred and fifty-two.
 
 APPENDIX. 681 
 
 Sec. 6. [Repealed 1865, Chapter 94.] 
 
 Sec. 7. And be it further enacted, That all parts of the act aforesaid, 
 which are suspended by or are inconsistent with this act, are hereby re- 
 pealed. 
 
 ACT OF 1864, CHAPTER 116 (13 U. S. Stats, at Large, 121). 
 
 An Act to provide for the Execution of Treaties betiveen the United States and foreign Na- 
 tions respecting consular Jurisdiction over the Crews of Vessels of such foreign Nations in 
 the Waters and Ports of the United States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That in all cases where 
 it may have been or shall hereafter be stipulated by ti'eaty or convention be- 
 tween the United States and any foreign nation to the effect that the con- 
 sul-general, consuls, vice-consuls, or consular or commercial agents of the 
 two nations, respectively, shall have exclusive jurisdiction of controversies, 
 difficulties, or disorders arising at sea or in the waters or ports of the one 
 nation, between the master or other officer or officers and any of the crew, 
 or between any of these last themselves, of any ship or vessel belonging 
 to the other nation, such stipulations shall be executed and enforced within 
 the jurisdiction of the United States as hereinafter declared : Provided, 
 That before this act shall take effect as to the ships and vessels of any par- 
 ticular nation having such treaty with the United States, the President 
 of the United States shall have been satisfied that similar provisions have 
 been made for the execution of such treaty by the other contracting party, 
 and shall have issued his proclamation to that effect, declaring this act to be 
 in force as to such nation. 
 
 Sec. 2. And be it further enacted, That in all cases within the purview 
 of this act the consul-general, consul, or other consular or commercial au- 
 thority of such foreign nation charged with the appropriate duty in the par- 
 ticular case, may make application to any court of record of the United 
 States, or any judge thereof, or to any commissioner appointed under the 
 laws of the United States, to take bail or affidavits, or for other judicial 
 purposes whatsoever, setting forth that such controversy, difficulty, or dis- 
 order has arisen, briefly stating the nature thereof, and when and where the 
 same occurred, and exhibiting a certified copy or extract of the shipping- 
 articles, roll, or other proper paper of the ship or vessel, to the effect that 
 the person in question is of the crew or ship's company of such ship or 
 vessel ; and further stating and certifying that such person has withdrawn 
 himself, or is believed to be about to withdraw himself, from the control 
 and discipline of the master and officers of the said ship or vessel, or that 
 he has refused, or is about to refuse, to submit to and obey the lawful juris-
 
 682 APPENDIX. 
 
 diction of such consular or commercial authority in the premises ; and 
 further stating and certifying that, to the best of the knowledge and belief 
 of the officer certifying, such person is not a citizen of the United States, 
 and thereupon such judge, commissioner, or other judicial officer, on inspec- 
 tion of such application, the same being in writing and duly authenticated 
 by the consular or other sufficient official seal, shall issue his warrant for 
 the arrest of the person so complained of, directed to the marshal of the 
 United States for the appropriate district, or in his discretion to any per- 
 son, being a citizen of the United States, whom he may specially depute for 
 the purpose, requiring such person to be brought before him for examina- 
 tion at a certain time and place. And if, on such examination, it shall be 
 made to appear that the person so arrested is a citizen of the United 
 States, he shall be forthwith discharged from arrest, and shall be left to the 
 ordinary course of law. But if this shall not be made to appear, and such 
 judge, commissioner, or other judicial authority shall find, upon the papers 
 hereinbefore referred to, a sufficient prima facie case that the matter con- 
 cerns only the internal order and discipline of such foreign ship or vessel, 
 or, whether in its nature civil or criminal, does not effect [affisct] directly 
 the execution of the laws of the United States, or the rights and duties of 
 any citizen of the United States, he shall forthwith, by his warrant, com- 
 mit such person to prison, where prisoners under sentence of a court of the 
 United States may be lawfully committed, or to the master or chief officer 
 of such foreign ship or vessel, in his discretion, to be subject to the lawful 
 orders, control, and discipline of the master or_ chief officer for the time 
 being, of such ship, and to the jurisdiction of the consular or commercial 
 authority of the nation to which such ship or vessel may belong, to the ex- 
 clusion of any authority or jurisdiction in the premises of the United States 
 or any State thereof: Provided^ievertheless, That the expenses of the arrest 
 and the detention of the person so arrested shall be paid by the consul- 
 general, consuls, or vice-consuls : And provided, further^ That no person 
 shall be detained more than two months after his arrest, but at the end of 
 that time shall be set at liberty and shall not again be arrested for the 
 same cause. 
 
 ACT OF 1864, CHAPTEE 121 (13 U. S. Stats, at Large, 124). 
 
 An Act to provide for the summary Trial of Minor Offences against the Laws of the United 
 
 States. 
 
 Section 1. J5e it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That it shall be law- 
 ful for the judge of any district court of the United States to hold a special 
 session of said court at any time, whether in term or vacation, for the trial
 
 APPENDIX. 683 
 
 of minor offences against the laws of the United States, as hereinafter pro- 
 vided. 
 
 Sec. 2. Arid be it further enacted, That whenever a complaint shall be 
 made against any master, officer, or mariner of any ship or vessel belong- 
 ing, in whole or in part, to any citizen or citizens of the United States, of 
 the commission of any offence, not capital or otherwise infamous, against 
 any law of the United States made for the protection of persons or prop- 
 erty engaged in commerce or navigation, it shall be the duty of the district 
 attorney to investigate the same, and the general nature thereof, and if, in 
 his opinion, the case is such as should be summarily tried under the pro- 
 visions of this act, he shall report the same to the district judge, and the 
 judge shall forthwith, or as soon as the ordinary business of the court will 
 permit, proceed to try the cause, and for 'that purpose may, if necessary, 
 hold a special session of the court. 
 
 Sec. 3. And be it further enacted, That at such trial it shall not be Yiec- 
 essary that the accused shall have been previously indicted, but a statement 
 of complaint, verified by oath, in writing, shall be presented to the court, set- 
 ting out the offence in such manner as clearly to apprise the accused of the 
 character of the offence complained of, and to enable him to answer the 
 complaint. And the said complaint or statement . shall be read to the ac- 
 cused, who may plead to or answer the same, or make a counter-state- 
 ment. 
 
 Sec. 4. And be it further enacted, That the said trial shall thereupon 
 be proceeded with in a summary manner, and the case shall be decided by 
 the court, unless, at the time for pleading or answering, the accused shall 
 demand a jury, in which case the trial shall be upon the complaint and 
 plea of not guilty. 
 
 Sec. 5. And he it further enacted, That it shall not be lawful for the 
 court to sentence any person convicted on such trial to any greater punish- 
 ment than imprisonment in jail for one year, or to a fine exceeding five 
 hundred dollars, or both, in its discretion, in those cases where the laws of 
 the United States authorize such imprisonment and fine. 
 
 Sec. 6. And be it further enacted. That it shall be lawful for the court 
 to allow the district attorney to amend his statement or complaint at any 
 stage of the proceedings, before verdict, if, in the opinion of the court, 
 such amendment will work no injustice to the accused ; and if it appear to 
 the court that the accused is unprepared to meet the charge as amended, 
 and that an adjournment of the cause will promote the ends of justice, 
 such adjournment shall be made until a further day, to be fixed by the 
 court. 
 
 Sec. 7. A}id be it further enacted, That at such trial, if by jury, the 
 United States and the accused shall each be entitled to three peremptory
 
 684 APPENDIX. 
 
 challenges. Challenges for cause, in such cases, shall be tried by the court 
 without the aid of triers. 
 
 ACT OF 1864, CHAPTER 130 (13 U. S. Stats, at Large, 134). 
 
 An Act to regulate the foreign Coasting Trade on the Northern, Northeastern, and North- 
 western Frontiers of the United States, and for other Purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America ill Congress assembled, That any boat, sloop, or 
 other vessel of the United States, navigating the waters on our northern, 
 northeastern, and northwestern frontiers, otherwise than by sea, shall be en- 
 rolled and licensed in such form as other vessels ; which enrolment and li- 
 cense shall authorize any such boat, sloop, or other vessel to be employed 
 either in the coasting or foreign trade on said frontiers ; and no certificate 
 of f'egister shall be required for vessels so employed on said frontiers : 
 Provided, That such boat, sloop, or vessel shall be, in every other respect, 
 liable to the rules, regulations, and penalties now in force relating to regis- 
 tered and licensed vessels. 
 
 Sec. 7. And be it further enacted, That the act entitled " An act to 
 regulate the foreign and coasting trade on the northern, northeastern, and 
 northwestern frontiers of the United States, and for other purposes," 
 approved second March, eighteen hundi-ed and thirty-one, and all other 
 acts or parts of acts inconsistent with this act be, and the same are hereby, 
 repealed. 
 
 ACT OF 1864, CHAPTER 170 (13 U. S. Stats, at Large, 201). 
 
 An Act repealing certain Provisions of Law, concerning Seamen on board public and private 
 Vessels of the United States. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That so much of an act entitled 
 "An act for the regulation of seamen on board the public and private 
 vessels of the United States," approved the third of March, one thousand 
 eight hundred and thirteen, as makes it not lawful to employ on board any 
 of the public or private vessels of the United States any person or persons 
 except citizens of the United States or person[s] of color, natives of the 
 United States ; and so much of the third, fifth, sixth, and seventh sections 
 of " An act concerning the navigation of the United States," approved the 
 first of March, one thousand eight hundred and seventeen, as concerns the 
 crews of vessels therein named ; and so much of the first section of an act 
 entitled " An act to repeal the tonnage duties upon ships and vessels of 
 the United States and upon certain foreign vessels," approved the thirty-first
 
 APPENDIX. 685 
 
 of May, one thousand eight hundred and thirty, as makes discrimination in 
 favor of vessels certain proportions of whose crews shall be citizens of the 
 United States, shall be, and the same are hereby, repealed ; Provided, how- 
 ever, That officers of vessels of the United States shall in all cases be cit- 
 izens of the United States. 
 
 ACT OF 1864, CHAPTER 174 (13 U. S. Stats, at Large, 306). 
 
 An Act to regulate Prize Proceedings and the Dintrihution of Prize Money, and for other 
 
 Purposes, 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled. That it shall be the 
 duty of the commanding officer of any vessel or vessels making a capture 
 to secure the documents of the ship and cargo, including the log-book, with 
 all other documents, letters, and other papers found on board, and make an 
 inventory of the same, and seal them up, and send them, with the inven- 
 tory, to the court in which proceedings are to be had, with a written state- 
 ment that they are all the papers found, and in the condition in which they 
 were found, or explaining the absence of any documents or papers, or any 
 change in their condition. He shall send to said court, as witnesses, the 
 master, one or more of the other officers, the supercargo, purser, or a^-ent 
 of the prize, and any person found on board whom he may suppose to be 
 interested in, or to have knowledge respecting, the title, national character, 
 or destination of the prize. He shall send the prize, with the documents, 
 papers, and witnesses, under charge of a competent prize master and prize 
 crew, into port for adjudication, explaining the absence of any usual wit- 
 nesses ; and in the absence of instructions from superior authority as to the 
 port to which it shall be sent, he shall select such port as he shall deem 
 most convenient in view of the interests of probable claimants, as well as 
 of the captors. If the captured vessel, or any part of the captured prop- 
 erty, is not in condition to be sent in for adjudication, a survey shall be had 
 thereon and an appraisement made by persons as competent and impartial 
 as can be obtained, and their reports shall be sent to the court in which pro- 
 ceedings are to be had ; and such property, unless appropriated for the use 
 of the government, shall be sold by the authority of the commanding 
 officer present, and the proceeds deposited with the assistant treasurer of 
 the United States most accessible to said court, and subject to its order in 
 the cause. 
 
 Sec. 2. And be it further enacted, That if any vessel of the United 
 States shall claim to share in the prize, either as having made the capture, 
 or as having been within signal distance of the vessel or vessels making 
 the capture, the commading officer of such vessel shall make out a written
 
 686 APPENDIX. 
 
 statement of his claim, with the grounds on which it is rested, the principal 
 facts tending to show what vessels made the capture, and what vessels were 
 within signal distance of those making the capture, with reasonable partic- 
 ularity as to times, distances, localities, and signals made, seen, or an- 
 swered ; and such statement of claim shall be signed by him and sent to 
 the court in which proceedings shall be had, and shall be filed in the 
 cause. 
 
 Sec. 3. A7id be it further enacted, That it shall be the duty of the prize 
 master to make his way diligently to the selected port, and there immedi- 
 ately deliver to a prize commissioner the documents and papers, and the in- 
 ventory thereof, and make affidavit that they are the same and in the same 
 condition as delivered to him, or explaining any absence or change of con- 
 dition therein, and that the prize property is in the same condition as de- 
 livered to him, or explaining any loss or damage thereto ; and he shall 
 further report to the district attorney, and give to him all the information 
 in his possession respecting the prize and her capture ; and he shall deliver 
 over the persons sent as witnesses to the custody of the marshal, and shall 
 retain the prize in his custody until it shall be taken therefrom by process 
 from the prize court. 
 
 Sec. 4. And he it further enacted, That the attorney of the United States 
 for the district shall immediately file a libel against such prize property, 
 and shall forthwith obtain a warrant from the court directing the marshal 
 to take it into Lis custody, and shall proceed diligently to obtain a condem- 
 nation and distribution thereof, and to that end shall see that the proper 
 preparatory evidence is taken by the prize commissioners, and that the prize 
 commissioners also take the depositions de bene esse of the prize crew and 
 other transient persons cognizant of any facts bearing on condemnation or 
 distribution. It shall also be the duty of the district attorney to represent 
 the interests of the United States in all prize causes, and he shall not act 
 as separate counsel for the captors on any private retainer or compensation 
 from them, unless in a question between the claimants and the captors on 
 a demand for damages. The district attorney shall examine all fees, costs, 
 and expenses, sought to be charged on the prize fund, and protect the in- 
 terests of the captors and of the United States. The district attorneys of 
 all districts in which any prize causes are or may be pending, shall, as 
 often as once in three months, send to the secretary of the navy a state- 
 ment of the condition of all prize causes pending in their districts, in such 
 form and embracing such particulars as the secretary of the navy shall 
 require. 
 
 Sec. 5. And be it further enacted, That any district court may appoint 
 prize commissioners, not exceeding three in number, of whom one shall be 
 a retired naval officer, approved by the secretary of the navy, who shall
 
 APPENDIX. 087 
 
 receive no other compensation than his pay in llio navy, and who sliall pro- 
 tect the interests of the captors and of the de[)arlment of tht; navy in the 
 prize property, and at least one of the others shall be a member of the bar 
 of the court, of not less than three years' standing, and accinainlcd with 
 the taking of depositions. 
 
 Sec. G. And be it further enacted, That the prize commissioners, or one 
 of them, shall receive from the prize master the docnments and i)ap(U's, 
 and inventory thereof, and shall take the affidavit of tin; prizo master here- 
 inbefore required, and shall forthwith take the testimony of tlic witnesses 
 sent in, separate from each other, on interrogatories prescribed by the 
 court, in the manner usual in prize courts ; and the witnesses shall not ho, 
 permitted to see the interrogatories, documents, or papers, or toconsnlt with 
 counsel, or with any persons interested, without special authority from the 
 court ; and the witnesses who have the rights of neutrals shall be dis- 
 charged as soon as practicable. The i)rize commissioners shall also take; 
 depositions de bene esse of the prize crew and othcirs, at the request of tho 
 district attorney, on interrogatories prescribed by tho court. They sliall 
 also, as soon as any prize property comes within the district for adjudica- 
 tion, examine the same, and make an invf^ntory thereof, founded on an ac- 
 tual examination, and report to the court whether any part of it is in a con- 
 dition requiring immediate sale for the interests of all parties, and M(»lify 
 the district attorney thereof; and if it be necessary to the examination or 
 making of the inventory that the cargo be uidaden, they shall apply to tlie 
 court for an order to the marshal to unlade the same, and shall, from time 
 to time, report to the court anything relating to the condition of the prop- 
 erty, or its custody or disposal, which may require any action by the court, 
 but the custody of the property shall be only in the marshal. They shall 
 also seasonably return into court, sealed and secured from insp(!ction, tho 
 documents and papers which shall come to their hands, duly scheduled and 
 numbered, and the other pr(!|)aratory evidence, and tlu; evid(;nee taken de 
 bene esse, and their own inventory of the prize prop(;rty ; and if the cap- 
 tured vessel, or any of its cargo or stores, are su<.'h that, in tlniir Judgment, 
 may be useful to the gov(;rnm(!nt in war, they shall report tlu; same to the 
 secretary of the navy. 
 
 Skc. 7. And be it further enacted, That the marshal shall safely keep 
 all prize property under warrant from the court, and shall report to the 
 court any cargo or other property that he thinks recjuires to be uidaden 
 and stored, or to be sold. He shall insure prize prop«;rty if, in his 
 judgment, it is for the interest of all concerned. He shall keep in his cus- 
 tody all persons found on board a prize and sent in as witnesses, until they 
 are released by the prize commissioners or the court. If a sah; of prop- 
 erly is ordered, he shall sell the same in the manner required by the court,
 
 688 APPENDIX. 
 
 and collect the purchase-money, and forthwith deposit the gross proceeds of 
 the sales with the assistant treasurer of the United States nearest the place 
 of sale, subject to the order of the court in the particular cause ; and each 
 marshal shall forward to the secretary of the navy, whenever and as often 
 as he may require it, a full statement of tlie condition of each prize and of 
 the disposition made thereof. 
 
 Sec. 8. And be it further enacted, That, whenever any prize property 
 shall be condemned, or shall at any stage of the proceedings be found by 
 the court to be perishing, perishable, or liable to deteriorate or depreciate, 
 or whenever the costs of keeping the same shall be disproportionate to its 
 value, it shall be the duty of the court to order a sale thereof; and when- 
 ever, after the return day on the libel, all the parties in interest who have 
 appeared in the cause shall agree thereto, the court is authorized to make 
 such order, and no appeal shall operate to prevent the making or execution 
 of such order. The secretary of the navy shall employ an auctioneer or 
 auctioneers of known skill in the branch of business to which any sale per- 
 tains, to make the sale, but the sale shall be conducted under the super- 
 vision of the marshal, and the collecting and depositing of the gross pro- 
 ceeds shall be by the auctioneer or his agent. Before any sale the marshal 
 shall cause full catalogues and schedules to be prepared and circulated, and 
 a copy of each shall be returned by the marshal to the court in each cause. 
 The marshal shall cause sales to be advertised fully and conspicuously in 
 newspapers ordered by the court, and by posters, and he shall, at least five 
 days before the sale, serve notice thereof upon the naval prize commis- 
 sioner, and the goods shall be open to inspection at least three days before 
 the sale. 
 
 Sec. 9. And be it further enacted, That in case a decree of condemna- 
 tion shall be rendered, the court shall consider the claims of all vessels to 
 participate in the proceeds, and for that purpose shall, at as early a stage 
 of the cause as possible, order testimony to be taken tending to show what 
 part should be awarded to the captors, and what vessels are entitled to 
 share, and such testimony may be sworn to before any judge or commis- 
 sioner of the courts of the United States, consul, or commercial agent 
 of the United States, or notary-public, or any officer of the navy highest in 
 rank, reasonably accessible to the deponent. The court shall make a 
 decree of distribution, determining what vessels are entitled to share in the 
 prize, and whether the prize was of superior, equal, or inferior force to the 
 vessel or vessels making the capture. And said decree shall recite the 
 amount of the gross proceeds of the prize subject to the order of the court, 
 and the amount deducted therefrom for costs and expenses, and the amount 
 remaining for distribution, and whether the whole of such residue is to 
 go to the captors, or one half to the captors, and one half to the United 
 States.
 
 APPENDIX. 689 
 
 Sec. 10. And he it further enacted, That the net proceeds of all prop- 
 erty condemned as prize shall, when the prize was of superior or equal 
 force to the vessel or vessels making the capture, be decreed to the cap- 
 tors ; and when of inferior force, one half shall be decreed to the United 
 States and the other half to the captors : Provided, That in case of pri- 
 vateers and lettei'S-of-marque, the whole shall be decreed to the captors, 
 unless it shall be otherwise provided in the commissions issued to such 
 vessels. All vessels of the navy within signal distance of the vessel or 
 vessels making the capture, under such circumstances and in such condition 
 as to be able to render effective aid, if required, shall share in the prize ; 
 and in case of vessels not of the navy, none shall be entitled to share ex- 
 cept the vessel or vessels making the capture, in which term shall be in- 
 cluded vessels present at the capture and rendering actual assistance iu the 
 capture. All prize money adjudged to the captors shall be distributed in 
 the following proportions, namely : — 
 
 First. To the commanding officer of a fleet or squadron, one twentieth 
 part of all prize money awarded to any vessel or vessels under his imme- 
 diate command. 
 
 Second. To the commanding officer of a division of a fleet or squadron, on 
 duty under the orders of the commander-in-chief of such fleet or squadron, 
 a sum equal to one fiftieth part of any prize money awarded to a vessel of 
 such division for a capture made while under his command, the said fiftieth 
 part to be deducted from the moiety due to the United States, if there be 
 such moiety, otherwise from the amount awarded to the captors : Provided, 
 That such fiftieth part shall not be in addition to any share which may be 
 due to the commander of the division, and which he may elect to receive, 
 as commander of a single ship making or assisting in the capture. 
 
 Third. To the fleet-captain, one hundredth part of all prize money 
 awarded to any vessel or vessels of the fleet or squadron in which he is 
 serving, except in a case where the capture is made by the vessel on board 
 of which he is serving at the time of such capture ; and in such case he 
 shall share, in proportion to his pay, with the other officers and men on 
 board such vessel, as is hereinafter provided. 
 
 Fourth. To the commander of a single ship, one tenth part of all the prize 
 money awarded to the ship under his command, if such ship at the time of 
 the capture was under the command of the commanding officer of a fleet 
 or squadron, or a division, and three twentieths, if his ship was acting inde- 
 pendently of such superior officer. 
 
 Fifth. After the foregoing deductions, the residue shall be distributed 
 and proportioned among all others doing duty on board (including the 
 fleet captain), and borne upon the books of the ship, in proportion to their 
 respective rates of pay in the service. 
 
 VOL. II. 44
 
 690 APPENDIX. 
 
 No commanding officer of a fleet or squadron shall be entitled to 
 receive any share of prizes captured by any vessel or vessels not under 
 his command, nor of such prizes as may have been captured by any ships 
 or vessels intended to be placed under his command, before they have acted 
 under his orders. Nor shall the commanding officer of a fleet or squad- 
 ron, leaving the station where he had command, have any share in the 
 prizes taken by ships left on such station after he has gone out of the limits 
 of his said command, nor after he has transferred his command to his suc- 
 cessor. No officer or other person who shall have been temporarily absent 
 on duty from a vessel on the books of which he continued to be borne, while 
 so absent, shall be deprived, in consequence of such absence, of any prize 
 money to which he would otherwise be entitled. And he shall continue to 
 share in the captures of the vessels to which he is attached until regularly 
 discharged therefrom. 
 
 Sec. 11. And be it further enacted, That a bounty shall be paid by the 
 United States for each pei'son on board any ship or vessel of w^ar belonging 
 to an enemy at the commencement of an engagement, which shall be sunk 
 or otherwise destroyed in such engagement by any ship or vessel belonging 
 to the United States, or which it may be necessary to destroy in conse- 
 quence of injuries sustained in action, of one hundred dollars, if the 
 enemy's vessel was of inferior force, and of two hundred dollars, if of equal 
 or superior force, to be divided among the officers and crew in the same 
 manner as prize money ; and when the actual number of men on board 
 any such vessel cannot be satisfactorily ascertained, it shall be estimated 
 according to the complement allowed to vessels of its class in the navy of 
 the United States ; and there shall be paid as bounty to the captors of any 
 vessel of war captured from an enemy, which they may be instructed to 
 destroy, or which shall be immediately destroyed for the public interest, 
 but not in consequence of injuries received in action, fifty dollars for every 
 person who shall be on board at the time of such capture. All ransom 
 money, salvage, bounty, or proceeds of condemned property, accruing or 
 awarded to any vessel of the navy, shall be distributed and paid to the 
 officers and men entitled thereto in the same manner as prize money, under 
 the direction of the secretary of the navy. 
 
 Sec. 12. And be it further enacted, That every assignment of prize or- 
 bounty money, or wages, due to persons enlisted in the naval service, and 
 all powers of attorney, or other authority, to draw, receipt for, or transfer 
 the same, shall be void, unless the same be attested by the captain, or other 
 commanding officer, and the paymaster ; and in case of any assignment of 
 wages, the same shall specify the precise time when they commence. But 
 the commanding officer of every vessel is required to discourage his crew 
 from selling any part of their prize money or wages, and never to attest any
 
 APPENDIX. 691 
 
 power of attorney until he is satisfied that the same is not granted in con- 
 sideration of money given for the purchase of prize money or wages. 
 
 Sec. 13. And be it further enacted, That appeals from the district courts 
 of the United States in prize causes shall be directly to the Supreme Court, 
 and shall be made within thirty days of the rendering of the decree ap- 
 pealed from, unless the court shall previously have extended the time, for 
 cause shown in the particular case, and the Supreme Court shall always be 
 open for the entry of such appeals. Such appeals may be claimed when- 
 ever the amount in controversy exceeds two thousand dollars, and, in other 
 cases, on the certificate of the district judge that the adjudication involves 
 a question of general importance. Notwithstanding such appeal, the dis- 
 trict court may make and execute all necessary orders for the custody and 
 disposal of the prize property ; and in case of appeal from a decree of con- 
 demnation, may still proceed to make a decree of distribution so far as to 
 determine what share of the prize shall go to the captors, and what vessels 
 are entitled to participate therein. Any prize cause now pending in any 
 circuit court shall, on the application of all parties in interest, who have 
 appeared in the cause, be transferred by that court to the Supreme Court ; 
 and such transfer may be made, in the discretion of the court, and on such 
 terms as it may direct, on the application of any party : Provided, That if 
 the amount in controversy does not exceed two thousand dollars, such 
 transfer shall not be made unless the court shall certify that the adjudica- 
 tion involves a question of general importance. All appeals to the Supreme 
 Court from the circuit court in prize causes, now remaining therein, shall 
 be claimed and allowed in the same manner as in cases of appeal from the 
 district court to the Supreme Court. In any case of appeal or transfer, the 
 court below, or the appellate court, may order any original document or 
 other evidence to be sent up, in addition to the copy of the record, or in 
 lieu of a copy of a part thereof. 
 
 Sec. 14. And be it further enacted, That all costs and all expenses incident 
 to the bringing in,custody, preservation, insurance, sale, or other disposal 
 of prize property, when allowed by the court, shall be a charge upon the 
 same, and be paid therefrom, unless the court shall decree restitution free 
 from such charge. No payments shall be made from any prize fund, ex- 
 cept upon the order of the court. All charges for work and labor, mate- 
 rials furnished, or money paid, shall be supported by affidavit or vouchers. 
 The court may, at any time, order the payment, from the deposit made 
 with the assistant treasurer in the cause, of any costs or charges accrued 
 and allowed. When the cause is finally disposed of, the court shall make 
 its order or orders on the assistant treasurer to pay the costs and charges 
 allowed and unpaid ; and in case the final decree shall be for restitution, or 
 in case there shall be no money subject to the order of the court in the
 
 692 APPENDIX. 
 
 cause, any costs or charges allowed by the court, and not paid by the claim- 
 ants, shall be a charge upon, and be paid out of, the fund for defraying the 
 expenses of suits in which the United States is a party or interested. 
 
 Sec. 15. And he it further enacted. That the court may require any 
 party, at any stage of the cause, and on claiming an appeal, to give secur- 
 ity for costs. 
 
 Sec. 16. And he it further enacted, That the net amount decreed for dis- 
 tribution to the United States, or to vessels of the navy, shall be ordered 
 by the court to be paid into the treasury of the United States, to be dis- 
 tributed according to the decree of the court. And the treasury depart- 
 ment shall credit the navy department with each amount received to be 
 distributed to vessels of the navy ; and the persons entitled to share there- 
 in shall be severally credited in their accounts with the navy department 
 with the amounts to which they are respectively entitled. In case of ves- 
 sels not of the navy, the distribution shall be made by the court to the sev- 
 eral parties entitled thereto, and the amounts decreed to them shall be 
 divided between the owners and the ship's company, according to any writ- 
 ten agreement between them, and in the absence of such agreement, one 
 half to the owners and one half to the ship's company, according to their 
 respective rates of pay on board ; and the court may appoint a commis- 
 sioner to make such distribution, subject to the control of the court, who 
 shall make due return of his doings, with proof of actual payments by 
 him, and who shall receive no other compensation, directly or indirectly, 
 than such as shall be allowed him by the court: Provided, That in case of 
 vessels not of the navy, but controlled by any department of the gov- 
 ernment, the whole amount decreed to the captors shall be divided among 
 the ship's company. 
 
 Sec. 17. And he it further enacted, That the clerk of each district court 
 shall render to the secretary of the treasury and the secretary of the 
 navy a semi-annual statement, beginning with the first day of July next, 
 of all the sums allowed by the court and ordered to be paid, within the 
 previous half-year, to the district attorney and prize commissioners for ser- 
 vices, and to marshals for fees and commissions ; and he shall, in all prize 
 causes in the district, for the purpose of the final decree of distribution, 
 ascertain and keep an account of the amount deposited with the assistant 
 treasurer, subject to the order of the court, in each prize cause, and the 
 amounts ordered to be paid therefrom as costs and charges, and the resi- 
 due for distribution ; and shall send copies of all final decrees of distribu- 
 tion to the secretary of the treasury and the secretary of the navy ; and 
 shall draw the orders of the court for the payment of all costs and allow- 
 ances, and for the distribution of the residue. And for the said services, 
 he shall be entitled to receive the sum of twenty-five dollars in each prize 
 cause, which shall be in full for the services required by this section.
 
 APPENDIX. 693 
 
 Sec. 18. And he it further enacted, That the marshal shall be allowed 
 his actual and necessaiy expenses for the custody, care, preservation, in- 
 surance, sale, or other disposal of the prize property, and for executing any 
 order of the court respecting the same, and shall have a commission of one 
 quarter of one per centum on vessels, and of one half of one per centum 
 on all other prize property, calculated on the gross proceeds of each sale ; 
 and if, after he shall have had any prize property in his custody, and shall 
 have actually performed labor and incurred responsibility for the care and 
 preservation thereof, the same shall be taken by the United States for its 
 own use without a sale, or if it shall be delivered on stipulation to the 
 claimants, he shall, in case the same shall be condemned, be entitled to one 
 half the above commissions on the amount deposited by the United States 
 to the order of the courts, or collected upon the stipulation. No charges 
 of the marshal for expenses or disbursements shall be allowed, except up- 
 on his oath that the same have been actually and necessarily incurred for 
 the purpose stated. 
 
 Sec. 19. A^ul be it further enacted, That neither the marshal nor the 
 clerk shall be permitted to retain for all official services, of every kind, 
 excepting those in prize causes, more than the maximum compensation 
 allowed to be retained by him by the third section of the act of the twenty- 
 sixth of February, eighteen hundred and fifty-three ; nor shall the ad- 
 ditional compensation which either of said officers shall be permitted to 
 retain for all services, of every kind, in prize causes, exceed one half the 
 maximum compensation allovved to them, respectively, by the aforesaid 
 act. 
 
 Sec. 20. And he it further enacted, That the district attorney and prize 
 commissioners, except the naval officer, shall be allowed a just and suitable 
 compensation for their respective services in each prize cause, to be ad- 
 justed and determined by the court, and to be paid as costs in the cause. 
 
 Sec. 21. And he it further enacted. That each district attorney and 
 prize commissioner, except the naval officer, shall render to the secretaiy 
 of the interior an annual account, beginning with the ffi'st day of July 
 next, of all sums he shall have received for all services in prize causes 
 within the previous year ; and the district attorney shall be allovved to re- 
 tain therefrom a sura not exceeding three thousand dollars for each year, 
 in addition to the maximum compensation allowed to be retained by him 
 by the third section of the act of the twenty-sixth February, eighteen hun- 
 dred and fifty-three, or in addition to any salary he may receive in lieu of 
 such maximum compensation ; and each such prize commissioner shall be 
 allowed to retain a sum not exceeding three thousand dollars for each year, 
 which shall be in full for all his official services in prize causes ; and any 
 excess over those respective amounts shall be paid by the officer receiving
 
 694 APPENDIX. 
 
 the same into the treasury of the United States, and shall be credited to 
 the fund for paying naval pensions. 
 
 Sec. 22. And be it further enacted, That the auctioneers employed to 
 make sales of prize property shall be entitled to receive commissions by a 
 scale to be established by the secretary of the navy, not to exceed, in any 
 case, one half of one per centum on any sum exceeding ten thousand dol- 
 lars on vessels, nor one per centum on said sum of other prize property, 
 which shall be in full for his expenses, as well as their services ; and in 
 case no such scale shall be established, they shall be entitled to receive 
 such compensation as the court shall deem just under the circumstances of 
 each case. 
 
 Sec. 23. And he it further enacted, That in any case of capture hereto- 
 fore made, or that may hereafter be made by vessels of the navy, the 
 secretary of the navy may employ special counsel for captors, when, in his 
 judgment, the services of such special counsel are needed in the particular 
 case for the due protection of the interests of the captors and of the navy- 
 pension fund ; and under the direction of the secretary of the navy such 
 counsel may institute and prosecute such proceedings in the case as may 
 be necessary and proper for the protection of such interests. The court 
 may allow such compensation as it shall deem just under the circumstances 
 of each case to special counsel for captors, not being the district attorney 
 or any of his assistants, whether appointed by a department of the govern- 
 ment or by the captors, for services actually rendered in the cause, to be 
 paid as costs, in whole or in part either from the entire fund or from the 
 portion awarded to the captors ; but no such allowance shall be made ex- 
 cept for services rendered on matters as to which the party the counsel repre- 
 sents has an adverse interest to the United States, or an interest otherwise 
 proper in the opinion of the court to be represented by special counsel, or 
 for services rendered in a contestation between parties claiming to partici- 
 pate in the distribution of the proceeds. 
 
 Sec. 24. And be it further enacted, That fees of special counsel in prize 
 cases incurred or authorized by any department of the government, or for 
 the defence of captors against demands for damages made by claimants in 
 the district court, not paid by claimants, nor from the prize fund in the 
 particular cause, and audited and allowed by the department incurring or 
 authorizing them, and by the solicitor of the treasury, shall be a charge, 
 upon and paid out of, the funds appropriated for defraying the expenses of 
 suits in which the United States is a party or interested. 
 
 Sec. 25. And be it further enacted, That whenever the court shall allow 
 fees to any witness in a prize cause, or fees for taking evidence out of the 
 district in which the court sits, and there is no money subject to its order in 
 the cause, the same shall be paid by the marshal, and shall be repaid to him
 
 APPENDIX. 695 
 
 from any money deposited to the order of the court in said cause ; and any 
 amount not so repaid the marshal shall be allowed as witness fees paid by 
 him in cases in which the United States is a party. 
 
 Sec. 26. And be it further enacted, That no prize property shall be 
 delivered to the claimants on stipulation, deposit, or other security, except 
 where there has been a decree of restitution and the captors have appealed 
 therefrom, or where the court, after a full hearing on the preparatory 
 proofs, has refused to condemn the pi-operty on those proofs, and has given 
 the captors leave to take further proofs, or where the claimant of any 
 property shall satisfy the court that the same has a peculiar and intrinsic 
 value to him, independent of its mai'ket value. In any of these cases, the 
 court may deliver the property on stipulation or deposit of its value, if it 
 shall be satisfied that the rights and interests of the United States and 
 captors, or of other claimants, will not be prejudiced thereby, a satisfactory 
 appraisement being first made, with an opportunity given to the district 
 attorney and naval prize commissioner to be heard as to the appointment 
 of appraisers. And any money deposited in lieu of stipulation, and all 
 money collected on a stipulation, not being costs, shall be deposited with 
 the assistant treasurer in the same manner as proceeds of a sale. 
 
 Sec. 27. And he it further enacted, That whenever any captured vessel, 
 arms, munitions, or other material shall be taken for the use of the govern- 
 ment before it comes into the custody of a prize court, it shall be surveyed, 
 appraised, and inventoried by persons as competent and impartial as can 
 be obtained, and the survey, appraisement, and inventory shall be sent to 
 the court in which proceedings are to be had ; and if taken afterwards, 
 sufficient notice shall first be given to enable the court to have the property 
 appraised for the protection of the rights of the claimants and captors. 
 In all cases of prize property heretofore taken for, or appropriated to, the 
 use of the government, or that shall hereafter be so taken or appropriated, 
 the department for whose use it was or shall be taken or appropriated 
 shall deposit the value thereof with the assistant treasurer of the United 
 States nearest to the place of the session of the court, subject to the order 
 of the court in the cause. 
 
 Sec. 28. And he it further enacted, That in case of any capture hereto- 
 fore made, or that shall hereafter be made, if, by reason of its condition, 
 or because the whole has been appropriated to the use of the United 
 States, no part of the captured property has been or can be sent in for 
 adjudication, or if the captured property be entirely lost or destroyed, pro- 
 ceedings for adjudication may be commenced in any district the secretary 
 of the navy may designate. And in any such case the proceeds of any 
 thing sold, or the value of anything taken or appropriated for the use of 
 the government, shall be deposited with the assistant treasurer in or nearest
 
 696 APPENDIX. 
 
 to that district, subject to the. order of the court in the cause. If, when no 
 property can be sent in for adjudication, the secretary of the navy shall 
 not, within three months after any capture, designate a district for the 
 institution of proceedings, the captors may institute proceedings for adju- 
 dication in any district. And if, in any case of capture, no proceedings 
 for adjudication shall be commenced within a reasonable time, any parties 
 claiming the captured property may, in any district court, as a court of 
 prize, move for a monition to show cause why such proceedings shall not be 
 commenced, or institute an original suit in such court for restitution, and 
 the monition issued in either case shall be served on the attorney of the 
 United States for the district, and on the secretary of the navy, as well as 
 on such other persons as the court shall order to be notified. 
 
 Sec. 29. And be it further enacted, That when any vessel or other 
 property shall have been captured by any force hostile to the United 
 States, and shall be recaptured, and it shall appear to the court that the 
 same had not been condemned as prize before its recapture, by any compe- 
 tent authority, the court shall award a meet and competent sum as salvage, 
 according to the circumstances of each case ; and if the captured property 
 belonged to the United States, it shall be restored to the United States, 
 and there shall be paid from the treasury of the United States the salvage, 
 costs, and expenses ordered by the court ; and if the recaptured property 
 belonged .to persons residing within or under the protection of the United 
 States, the court shall adjudge the property to be restored to its owners 
 upon their claim, on the payment of such sum as the court may award as 
 salvage, costs, and expenses ; and if the recaptured property belonged to 
 any person permanently resident within the territory and under the pro- 
 tection of any foreign prince, government, or state in amity with the United 
 States, and by the law or usage of such prince, government, or state, the 
 property of a citizen of the United States would be restored under like 
 circumstances of recapture, it shall be adjudged to be restored to such 
 owner upon his claim, upon such terras as by the law or usage of such 
 prince, government, or state would be required of a citizen of the United 
 States under \\ke circumstances of recapture ; and when no such law or 
 usage shall be known, it shall be adjudged to be restored upon the pay- 
 ment of such salvage, costs, and expenses as the court shall order : Pro- 
 vided, That nothing in this act shall be construed to contravene any treaty 
 of the United States. And the whole amount awarded as salvage shall be 
 decreed to the captors and no part to the United States, and shall be dis- 
 tributed as in the case of proceeds of property condemned as prize. 
 
 Sec. 30. And be it further enacted, That if it shall appear to the court, 
 in the case of any prize property ordered to be sold, that it will be for the 
 interest of all parties to have it sold in another district, the court may
 
 APPENDIX. 697 
 
 direct the marshal to transfer the same to the district selected by the court 
 for the sale, and to insure the same with proper orders as to the time and 
 manner of selling the same. And it shall be the duty of the marshal so 
 to transfer the property, and keep and sell the same in like manner as if 
 the property were in his own district ; and he shall deposit the gross pro- 
 ceeds of the sale w^ith the assistant treasurer nearest to the place of sale, 
 subject to the order of the court in which the adjudication thereon is pend- 
 ing ; and the necessary expense attending the insuring, transferring, re- 
 ceiving, keeping, and selling the said property shall be a charge thereupon 
 and upon the proceeds thereof; and whenever any such expense is paid in 
 advance by the marshal, and he shall not be repaid from the proceeds, any 
 amount not so repaid he shall be allowed as in case of expenses incurred in 
 suits in which the United States is a party. The secretary of the navy 
 may, in like manner, either by a general regulation or special direction in 
 any cause, require a marshal to transfer any prize property from the dis- 
 trict in which the judicial proceedings are pending to any other district for 
 sale, and the same proceedings shall be had as if such transfer had been 
 made by order of the court, as hereinbefore provided. 
 ■ Sec. 31. A7id be it further enacted, That, if any person shall wilfully 
 do any act, or aid, assist, or advise, in the doing of any act relating to the 
 bi'inging in, custody, preservation, sale, or other disposition of any property 
 captured as prize, or relating to any documents or papers connected with 
 the property, or to any deposition or other document or paper connected with 
 the proceedings, with intent to defraud, delay, or injure the United States, 
 or any captor or claimant of such property, he shall, on conviction, be pun- 
 ished by a fine not exceeding ten thousand dollars, or by imprisonment not 
 exceeding five years, or both, at the discretion of the court. 
 
 Sec. 32. And be it further enacted, That in the term " vessels of the 
 navy " shall be included, for the pui-poses of this act, all armed vessels 
 officered and manned by the United States, and under the control of the 
 department of the navy. 
 
 Sec. 33. And be it further enacted, That the provisions of this act shall 
 be applied to all captures made as prize by authority of the United States, 
 or adopted and ratified by the President of the United States. 
 
 Sec. 34. And be it further enacted, That this act shall apply to all prize 
 proceedings now pending. 
 
 Sec. 35. And be it further enacted. That the act entitled " An act pro- 
 viding for salvage in cases of recapture," approved on the third day of 
 March, in the year eighteen hundred, and the act entitled " An act in addi- 
 tion to the act concerning letters-of-marque, prizes, and prize goods," ap- 
 proved on the twenty-seventh day of January, in the year eighteen hun- 
 dred and thirteen, and the act entitled " An act in addition to an act entitled
 
 698 . APPENDIX. 
 
 an act in relation to the navy pension fund," approved on the sixteenth 
 day of April, eighteen hundred and sixteen, and an act entitled " An act 
 to facilitate judicial proceedings in adjudications upon captured property 
 and for the better administration of the law of prize," approved on the 
 twenty-fifth day of March, eighteen hundred and sixty-two, and the second, 
 sixth, and twelfth sections of an act entitled " An act for the better gov- 
 ernment of the navy of the United States," approved on the seventeenth 
 day of July, eighteen hundred and sixty -two, and the act entitled " An act 
 further to regulate proceedings in prize cases and to amend various acts of 
 Congress in relation thereto," approved on the third day of March, eighteen 
 hundred and sixty-three, and all other acts and parts of acts, inconsistent 
 herewith, are hereby repealed. 
 
 ACT OF 1864, CHAPTEK 249 (13 U. S. Stats, at Large, 390). 
 An Act further to regulate the Carriage of Passengers in Steamships and other Vessek. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives of 
 the United States of America in Goiigress assembled, That the term " con- 
 tiguous territory," in the first section of the act entitled " An act to reg- 
 ulate the carriage of passengers in steamships and other vessels," approved 
 March three, eighteen hundred and fifty-five, shall not be held to extend 
 to any port or place connecting with any inter-oceanic route through 
 Mexico. 
 
 Sec. 2. And he it further enacted, That the provisions of the eleventh 
 section of said act be, and the same are hereby, extended to all vessels 
 whose passengers, or any part of them, are or shall be bound from or to 
 any of the ports or places therein mentioned, by way of any overland route 
 or routes through Mexico or Central America. 
 
 Sec. 3. And he it further enacted, That' hereafter there shall be deliv- 
 ered to masters or owners of vessels three copies of the inspectors' certifi- 
 cates directed to be given them by collectors or other chief officers of the 
 customs, by the twenty-fifth section of the act entitled " An act to amend 
 an act entitled ' An act to provide for the better security of the lives of 
 passengers on board of vessels propelled in whole or in part by steam,' 
 and for other purposes," approved August thirty, eighteen hundred and 
 fifty-two, one of which copies shall be placed, and at all times kept, by 
 said masters or owners, in some conspicuous place in the vessel, where it 
 will be most likely to be discovered by steerage passengers, and the others 
 as now provided by law ; and the penalty for neglecting or refusing to 
 place and keep up such additional copy shall be the same as is provided by 
 the said twenty-fifth section in the other cases therein mentioned.
 
 APPENDIX. • 699 
 
 Sec. 4. And he it further enacted, That the list of passengers required 
 to be kept by section thirty-five of the said act of August thirty, eighteen 
 hundred and fifty-two, shall also be open to the inspection of any passenger 
 during all reasonable hours ; and that after any clearance is granted, but 
 before the vessel shall be allowed to depart, the master or other person in 
 charge of such vessel, carrying passengers, shall file with the collector, or 
 other ofiicer of the customs granting the clearance, a list, verified by the 
 oath of the master, or other agent, or owner of the vessel, of all passen- 
 gers received, or to be received, on the vessel so cleared, for conveyance 
 during the proposed voyage, designating cabin and and steerage passengers 
 distinctly ; and on the receipt by such customs officer on the full list so 
 verified, a departure permit shall be given, without which no vessel con- 
 veying passengers shall go to sea ; and such departure permit shall be 
 shown to the pilot of each vessel before he shall have authority to take the 
 vessel to sea ; and any pilot who shall, without such authority being shown 
 to him, pilot a vessel to sea, shall be subject to a fine of one hundred dol- 
 lars, and a revocation of his license. 
 
 Sec. 5. And he it further enacted, That the master or commander of any 
 vessel carrying passengers from any port or ports in the United States to 
 any port or place in Mexico or Central America shall, immediately on ar- 
 riving at such last-mentioned port or place, deliver to the United States 
 consul, vice-consul, or commercial agent at such port two copies of the list 
 of passengers required to be kept on such vessel by said section thirty-five 
 of the act of August thirty, eighteen hundred and fifty-two, embracing all 
 the passengers on board the vessel at any time during its voyage up to its said 
 arrival, and duly verified by the oath of such master or commander, and 
 by the inspection of the consul, vice-consul, or commercial agent, previous to 
 or at the landing of the passengers ; one of which copies the said consul, vice- 
 consul, or commercial agent shall file in his office, and the other of which 
 he shall transmit, without delay, to the collector of the port in the United 
 States from wliich the vessel last cleared. And if such master or com- 
 mander shall refuse or neglect to comply with the requirements of this 
 section, or shall knowingly make a false return of the list of passengers, 
 he, together with the owner or owners of said vessel, shall be subject to a 
 fine of not less than ten thousand dollars, and such fine shall be a lien 
 upon the vessel until paid. 
 
 Sec. 6. And he it further enacted, That the provisions of section twelve 
 of the act entitled " An act to provide for the better security of the lives 
 of passengers on board of vessels propelled in whole or in part by 
 steam," approved July seventh, eighteen hundred and thirty-eight, be, and 
 the same are hereby, extended to the owner or owners of any steamboat 
 or other vessel propelled in whole or in part by steam, and to all public
 
 700 APPENDIX. 
 
 officers, by, or in consequence of, whose fraud, connivance, misconduct, or 
 violation of law, the life or lives of any person or persons on board such 
 steamboat or vessel may be destroyed. 
 
 Sec. 7. And be it further enacted, That if the owner or owners, mas- 
 ter, commander, or other person in charge of any steamboat or other ves-. 
 sel, shall wilfully present, or cause to be presented, any false or fraudulent 
 list or lists of its passengers, or copies thereof, to any consul, vice-consul, 
 commercial agent, collector, or other custom-house officer, or of the de- 
 parture permit to any pilot, he or they shall be held guilty of misdemean- 
 or, and on conviction thereof shall be imprisoned for a term not exceeding 
 two years ; and the vessel shall be liable to seizure and forfeiture. 
 
 Sec. 8. And be it further enacted, That the secretary of the treasury 
 shall cause to be prepared a synopsis of such of the laws relating to the 
 carriage of passengers, and their safety on vessels propelled in whole or 
 in part by steam, as he shall think expedient, and have the same printed 
 in convenient form to be framed under glass, and give to any such vessel 
 two copies, on application of its owners or master, who shall, without un- 
 necessary delay, have the same framed under glass, and place and keep 
 them in conspicuous places in such vessel, in the same manner as is pro- 
 vided by law in regard to certificates of inspectors ; and no clearance shall 
 be issued to such vessel until the collector or other chief [officer] of the 
 customs shall be satisfied that the provisions of this section shall have been 
 complied with by such owners or master ; and in case such owners or master 
 shall neglect or refuse to comply with provisions of this section, he or they 
 shall furthermore forfeit and pay for each offence one hundred dollars, and 
 such fine shall be a lien upon the vessel until paid. 
 
 Sec. 9. And be it further enacted, That informers shall be entitled to 
 one half of any penalty or fine collected under this act, or the said act of 
 March third, eighteen hundred and fifty-five, upon their information. 
 
 Sec. 10. And be it further enacted, That all steamers and other vessels 
 belonging to a citizen or to citizens of the United States, and bound from 
 any port in the United States to any other port therein, or to any foreign 
 port, or from any foreign port to any port in the United States, shall, be- 
 fore clearance, receive on board all such bullion, coin. United States notes 
 and bonds and other securities as the government of the United States or 
 any deiDurtment thereof, or any minister, consul, vice-consul, or commer- 
 cial or other agent of the United States abroad shall offer, and shall se- 
 curely convey and promptly deliver the same to the proper authorities or 
 consignees on arriving at the port of destination, and shall receive for such 
 service such reasonable compensation as may be allowed to other carriers 
 in the ordinary transactions of business.
 
 APPENDIX. 701 
 
 ACT OF 1865, CHAPTER 69 (13 U. S. Stats, at Large, 444). 
 
 An Act relating to the Enrolment and License of certain Vessels. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That whenever it shall become 
 necessary for the owner or owners of any vessel of the United States 
 navigating the western rivers and the waters on the northern, northeastern, 
 and northwestern frontiers of the United States otherwise than by sea, and 
 being in a district other than that to which such vessel shall belong, to pro- 
 cure her enrolment and license, or license, or renewal thereof, the same 
 pi'oceedings may be had in the district in which said vessel then shall be, 
 as are now, or shall then be required by law, on application for such enrol- 
 ment and license, or license, or renewal thex'eof, as the case may be, in the 
 district to which such vessel may belong, exce2:)ting the giving of bond and the 
 enrolment and issuance of license ; and the oIHcer before whom such pro- 
 ceedings shall be had shall certify the same to the collector of tlie district 
 to which such vessel shall belong, who shall thereupon, on the said owner 
 or owners giving bond as required in other cases, duly enrol the said vessel 
 and issue license in the same form as if the application had originally been 
 made in his office ; and either deliver the said license to said owner or 
 owners, or forward it by mail to the officer who certified to him the pre- 
 liminary proceedings, and who shall, in such case, deliver the said license 
 to the owner or owners or master of the vessel : Provided, That this act 
 shall not be construed so as in any respect to change existing laws, except- 
 ing in so far as it enable such owners to procure enrolment or license, or 
 renewal thereof, without returning their vessels to their home ports or 
 districts. 
 
 ACT OF 1865, CHAPTER 70 (13 U. S. Stats, at Large, 444). 
 
 An Act to amend an Act entitled " An Act to regulate the Admeasurement of Tonnage of Ships 
 and Vessels of the United States," approved May sixth, eighteen hundred and sixty four. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the act entitled " An act to 
 regulate the admeasurement of tonnage of ships and vessels of the United 
 States," approved May sixth, eighteen hundred and sixty-four, shall be so 
 construed that no part of any ship or vessel shall be admeasured or regis- 
 tered for tonnage that is used for cabins or state-rooms, and constructed 
 entirely above the first deck, which is not a deck to the hull.
 
 702 APPENDIX. 
 
 ACT OF 1865, CHAPTER 94 (13 U. S. Stats, at Large, 514). 
 
 An Act to provide for two assistant local Inspectors of Steamboats in the City of New York, 
 and for two local Inspectors at Galena, Illinois, and to re-establish the Board of local In- 
 spectors at WJieding ; and also to amend the Act approved June eighth, eighteen hundred 
 and sixty four, entitled " An Act to create an additional Inspector of Steamboats and two 
 local Inspectors of Steamboats for Collection Districts of Memphis and Oregon, and for 
 other Purposes." 
 
 Section 1. Se it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That there shall be 
 designated and appointed, in the mode prescribed by law, two assistant 
 local inspectors of steamboats in the city of New York, and two local in- 
 spectors at the city of Galena, Illinois, with an annual compensation of 
 twelve hundred dollars for the said assistant local inspectors in the city of 
 New York, and eight hundred dollars for the two local inspectors at the 
 city of Galena, Illinois, as in case of other like inspectors ; and said inspect- 
 ors shall perform the duties and be subject to the provisions of the steam- 
 boat act of August thirtieth, eighteen hundred and fifty-two. And the 
 local board of inspectors at "Wheeling is hereby re-established. 
 
 Sec. 2. And be it further enacted, That, in lieu of the fees for inspection 
 prescribed by the sixth section of the act entitled " An act to create an ad- 
 ditional supervising inspector of steamboats and two local inspectors of 
 steamboats for the collection district of Memphis, Tennessee, and two 
 local inspectors for the collection district of Oregon, and for other pur- 
 poses," approved June eighth, eighteen hundred and sixty-four, there shall 
 be levied and paid for each steam vessel of one hundred tons or under, 
 twenty-five dollars, and in addition thereto for each and every ton, in excess 
 of one hundred tons, five cents. 
 
 Sec. 3. And be it further enacted, That all acts or parts of acts incon- 
 sistent with this act are hereby repealed. 
 
 ACT OF 1865, CHAPTER 101 (13 U. S. Stats, at Large, 518). 
 
 An Act to regidate the Fees of Custom-House Officers on the Northern, Northeastern, and 
 Northwestern Frontiers of the United States. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled. That, in lieu of the fees now 
 authorized by law to be collected by customs ofiicers on the northern, 
 northeastern, and northwestern frontiers of the United States, there shall 
 be levied and collected : — 
 
 For admeasurements of vessels, the fees prescribed by the act entitled
 
 APPENDIX. 703 
 
 " An act to regulate the admeasurement of tonnage of ships and vessels 
 of the United States," approved May six, eighteen hundred and sixty- 
 four. 
 
 Certificate of registry, including bond, two dollars and twenty-five cents. 
 
 Indorsement on register, one dollar- 
 
 Certificate of enrolment, including bond on vessel not exceeding fifty 
 tons, one dollar ; on vessel of above fifty and not exceeding one hundred 
 and fifty tons, one dollar and fifty cents ; on vessel of over one hundred 
 and fifty tons, two dollars. 
 
 License, including bond on vessel of not over one hundred and fifty tons, 
 one dollar ; on vessel of over one hundred and fifty tons, one dollar and 
 fifty cents. 
 
 Indorsement on license of change of master, including master's oath, 
 fifty cents. 
 
 Certifying manifest, and granting clearance for a licensed vessel to go 
 from district to district, on vessel of fifty tons or under, twenty -five cents ; 
 on vessel of over fifty tons, fifty cents. 
 
 Receiving certified manifest and granting permit to unlade on entry of a 
 vessel from any other district, on vessel of fifty tons or under, twenty-five 
 cents ; on vessel of over fifty tons, one dollar. 
 
 Entry of a vessel from a foreign port otherwise than by sea, if vessel of 
 fifty tons or under, fifty cents ; if of over fifty tons, one dollar ; and the 
 same fees for clearance of like vessels to foreign ports. 
 
 Receiving manifest of goods brought into the United States from foreign 
 countries adjoining said frontiers by land vehicles, and permit to unlade the 
 same, twenty-five cents. 
 
 Receiving manifest of baggage of passengers arriving from foreign coun- 
 tries, adjoining said frontiers, including permit to unlade the same, twenty- 
 five cents. 
 
 Granting permit to a vessel not belonging [to] a citizen of the United 
 States to go from district to district, two dollars, and [the] same fee for re- 
 ceiving manifest and granting permit to unlade such vessel on arrival in a 
 district from another district. 
 
 Entry of goods imported from any foreign port or place for consump- 
 tion, warehousing, re-warehousing, transportation or exportation, entry, in- 
 cluding ofiicial certificate or oath on entry or to invoice, fifty cents, and for 
 every post entry, forty cents. 
 
 Permit to land or deliver goods not above provided for, twenty-five 
 cents. 
 
 Ofl&cial bonds not herein provided for, each one dollar. 
 
 Debenture o« [or] other ofiicial certificate not herein provided for, 
 twenty-five cents.
 
 704 APPENDIX. 
 
 Bill of health, twenty-five cents. 
 
 Crew-list, including bond, one dollar. ' 
 
 Protection, fifty cents. 
 
 Recording bill of sales, mortgages, hypothecations, or conveyances, fifty 
 cents each, and certified copies thereof, fifty cents each. 
 
 Recording certificates for discharging and cancelling such conveyances, 
 fifty cents ; copies thereof, twenty-five cents. 
 
 Certificate setting forth the names of the owners of a vessel, with their 
 respective interest, and also the material facts of any existing bill of sale, 
 mortgage, hypothecation, or other incumbrance, the date and amount of 
 such incumbrance, and the parties thereto, one dollar : Provided, That no 
 bill of sale, mortgage, hypothecation, conveyance, or discharge of mortgage 
 or other incumbrance of any vessel, shall be recorded unless the same is 
 duly acknowledged before a notary public or other officer authorized to take 
 acknowledgments of deeds. 
 
 ACT OF 1865, CHAPTEE 117 (13 U. S. Stats, at Large, 535). 
 
 An Act to extend the Provisions of the first Section of "An Act for the Government of Per- 
 sons in ceiiain Fisheries," approved June nineteenth, eighteen hundred and thirteen. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress asseiyihled, That the provisions of the first sec- 
 tion of " An act for the government of jiersons in certain fi.-^heries," ap- 
 proved on the nineteenth of June, in the year one thousand eight hundred 
 and thirteen, shall extend and apply to the master or skipper and seamen 
 of vessels of the burthen of twenty tons or upwards, qualified according 
 to law for carrying on the mackerel fisheries, bound from a port in the 
 United States to be employed in such fisheries, in the same way as if such 
 fisheries had been embraced in said act : Provided, That the agreement 
 named in said section shall be duly made, indorsed, and countersigned. 
 
 ACT OF 1866, CHAPTER 8 (14 U. S. Stats, at Large, 3). 
 
 An Act to regulate the Registering of Vessels.^ 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assetnbled. That no ship or vessel, which has 
 been recorded or registered as an American vessel, pursuant to law, and 
 which shall have been licensed or otherwise authorized to sail under a 
 foreign flag, and to have the protection of any foreign government during 
 the existence of the rebellion, shall be deemed or registered as an Amer- 
 
 ' See Act of 1866, c. 213.
 
 APPENDIX. Y05 
 
 ican vessel, or shall have the rights and privileges of American vessels, ex- 
 cept under the provisions of an act of Congress authorizing such registry. 
 
 ACT OF 1866, CHAPTER 86 (14 U. S. Stats, at Large, 50). 
 An Act to prevent and punish Kidnapping. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assemhled, That if any person 
 shall kidnap or carry away any other person, whether negro, mulatto, or 
 otherwise, with the intent that such other person shall be sold or carried 
 into involuntary ser\itude, or held as a slave ; or if any person shall entice, 
 persuade, or knowingly induce any other person to go on board any vessel 
 or to any other place, with the intent that he or she shall be made or held 
 as a slave, or sent out of the country to be so made or held, or shall in any 
 way knowingly aid in causing any other person to be held, sold, or carried 
 away, to be held or sold as a slave, he or she shall be punLshed, on convic- 
 tion thereof, by a fine of not less than five hundi-ed nor more than five 
 thousand dollars, or by imprisonment not exceeding five years, or by both 
 of said punishments. 
 
 Sec. 2. And he it further enacted, That if the master or owners, or per- 
 son having charge of any vessel, shall receive on board any other person, 
 whether negro, mulatto, or otherwise, with the knowledge or intent that 
 such person shall be carried from any State, territory, or district of the 
 United States, to a foreign country, state, or place, to be held or sold as a 
 slave, or shall carry away from any State, territory, or district of the 
 United States any such person, with the intent that he or she shall be so 
 held or sold as a slave, such master, owner, or other person offending shall 
 be punished by a fine not exceeding five thousand nor less than five hun^ 
 dred dollars, or by imprisonment not exceeding five years, or by both of 
 said punishments. And the vessel on board which said person was re- 
 ceived to be carried away shall be forfeited to the United States. 
 
 ACT OF 1866, CHAPTER 162 (14 U. S. Stats, at Large, 81). 
 
 An Act to regulate the Transportation of Nitro-Gli/ce)-inc, or Glynoin Oil, and other Sub- 
 stances therein named. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled. That hereafter it shall 
 not be lawful to transport, carry or convey, ship, deliver on board, or cause 
 to be delivered on board, the substance or article known or designated as 
 nitro-glycerine, or glynoin oil, nitroleum or blasting oil, or nitrated oil, or 
 powder mixed with any such oil, or fibre saturated with any such [article] 
 
 VOL. II. 45
 
 706 APPENDIX. 
 
 or substance upon or in any ship, steamship, steamboat, vessel, car, wagon, 
 or other vehicle, used or employed in transporting passengers by land or 
 water between a place or places in any foreign country and a place or 
 places within the limits of any State, territory, or district of the United 
 States, or between a place in one State, territoiy, or district of the United 
 States, and a place in any other State, territory, or district thereof; and 
 any person, company, or corporation who shall knowingly violate the pro- 
 visions of this section shall be liable to a fine of not less than one thousand 
 nor more than ten thousand dollars, at the discretion of the court, one half 
 to the use of the informer. 
 
 Sec. 2, And be it further enacted, That in case the death of any person 
 shall be caused, directly or indirectly, by an explosion of any quantity of 
 said substances or articles, or either of them, while the same is being placed 
 upon or in any such ship, steamship, steamboat, vessel, car, wagon, or other 
 vehicle, to be transj)orted, carried, or conveyed thereon or therein, in viola- 
 tion of the foregoing section, or while the same is being so transported, car- 
 ried, or conveyed, or while the same is being removed from such ship, 
 steamship, steamboat, vessel, car, wagon, or other vehicle, every person who 
 knowingly placed or aided, or permitted the placing of the said substance 
 upon or in such ship, steamship, steamboat, vessel, car, wagon, or other 
 vehicle, to be so transported, carried, or conveyed, shall be deemed guilty 
 of manslaughter, and on conviction thereof shall suffer imprisonment for a 
 period not less than two years. 
 
 Sec. 3. And he it further enacted. That it shall not be lawful to ship, 
 send, or forward any quantity of the said substances or articles, or to trans- 
 port, convey, or carry the same by a ship, boat, vessel, vehicle, or convey- 
 ance, of any description, upon land or water, between a place in a foreign 
 country and a place within the United States, or between a place in one 
 State, territory, or district of the United States, and a place in any other 
 State, territory or district thereof, unless the same shall be securely en- 
 closed, deposited or packed in a metallic vessel surrounded by plaster of 
 Paris, or other material that will be non-explosive when saturated with such 
 oil or substance, and separate from all other substances, and the outside of 
 the package containing the same, be marked, printed, or labelled in a con- 
 spicuous manner with the words " Nitro-Glycerine, Dangerous"; and any 
 person, company, or corporation who shall knowingly violate the provis- 
 ions of this section shall be liable to a fine of not less than one thousand 
 nor more than five thousand dollars, at the discretion of the court, one half 
 to the use of the informer. 
 
 Sec. 4. And he it further enacted, That the district court of the United 
 States within the district in which any offence against this act shall be com- 
 mitted, or if committed in or upon any ship, boat, vessel, or vehicle, beyond
 
 APPENDIX. 707 
 
 the territorial limits of any district, then within the district from which the 
 same departed, or that in which it shall first arrive, shall have jurisdiction 
 to try and punish the offender under the provisions of this act. 
 
 Sec. 5. And be ^'t further enacted, That this act shall not be so construed 
 as to prevent any State, territory, district, city, or town within the United 
 States from regulating or from prohibiting the traffic in or transportation 
 of the said substances between persons and places lying or being veithin 
 their respective territorial limits, or from prohibiting its introduction into 
 such limits for sale, use, or consumption therein. 
 
 ACT OF 1866, CHAPTER 177 (14 U. S. Stats, at Large, 93). 
 An Act relating to Pilots and Pilot Regulations. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That no regulations or provis- 
 ions shall be adopted by any State of the United States of America which 
 shall make any discrimination in the rate of pilotage or half-pilotage be- 
 tween vessels sailing between the ports of one State and vessels sailing 
 between the ports of different States, or any discrimination against vessels 
 propelled in whole or in part by steam, or against national vessels of the 
 United States, and all existing regulations or provisions making any such 
 discrimination, as herein mentioned, are hereby annulled and abrogated. 
 
 ACT OF 1866, CHAPTEE 213 (14 U. S. Stats, at Large, 212) 
 An Act to regulate the registering of Vessels. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That the act approved on the 
 tenth day of February, in the year one thousand eight hundred and sixty- 
 six, entitled " An act to regulate the registering of vessels," shall not be 
 deemed or construed to affect or limit the operation of the act approved on 
 the twenty-third day of December, in the year one thousand eight hundred 
 and fifty-two, entitled " An act authorizing the secretary of the treasury to 
 issue registers to vessels in certain cases," but the same shall be in full force 
 and effect, anything in the act first aforesaid to the contrary notwithstanding. 
 
 ACT OF 1866, CHAPTER 234 (14 U. S. Stats, at Large, 227). 
 
 An Act further to procidefor the Safety of the Lives of Passengers on board of Vessels pro- 
 pelled in whole or in part by Steam, to regxdate the Salaries of Steamboat Inspectors, and 
 for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That if any engi-
 
 708 APPENDIX. 
 
 neer or pilot, licensed in pursuance of law by any inspector or board of in- 
 spectors, shall, to the hindrance of commerce, wrongfully or unreasonably 
 refuse to serve as such on any steam vessel, as authorized by the terms of 
 his license, or shall fail to deliver to the applicant for such services, at the 
 time of such refusal, if the same shall be demanded, a statement in writing, 
 signed by such engineer or pilot, of the reasons therefor, or if any pilot 
 shall refuse to admit into the pilot-house with him any person or persons 
 whom the captain or owners of any steamboat may desire to place there for 
 the purpose of acquiring the knowledge of piloting, he shall forfeit and pay 
 to the party aggrieved thereby the sum of three hundred dollars, to be 
 recovered in an action of debt founded on this statute. And thereupon on 
 such recovery, as well as on such refusal to give such statement in writing, 
 or to admit such persons into the pilot-house as aforesaid, his license shall 
 be immediately revoked, upon the same proceedings as are provided by law 
 in other cases of the revocation of such licenses. 
 
 Sec. 2. And be it further enacted, That when boilers are so arranged on 
 a steamer that there is employed a water connecting-pipe through which 
 the water may pass from one boiler to another, there shall also be provided 
 a similar steam connection, having an area of opening into each boiler of at 
 least one square inch for every two square feet of effective heating surface 
 contained in any one of the boilers so connected, half the flue and all other 
 surfaces being computed as effective. And no boiler shall hereafter be 
 allowed, under any circumstances, a greater working pressure than one 
 hundred and fifty pounds to the square inch. 
 
 Sec. 3. And be it further enacted, That one or more additional safety- 
 valves, of such dimensions and arrangement as shall be prescribed by the 
 board of supervising inspectors, shall be placed on the boilers of every 
 steamer, and shall be loaded to a pressure not exceeding two pounds above 
 the working steam pressure allowed, and shall be secured by the inspector 
 against the interference of all persons engaged in the management of the 
 vessel or her machinery. And the alloyed metals now required by law, to 
 be placed in or upon the flues of boilers shall be fusible, as now required 
 by law, and at a temperature not exceeding four hundred and forty-five 
 degrees of the Fahrenheit thermometer ; and a good and reliable water- 
 gauge and a full set of gauge-cocks shall be provided for each boiler, 
 whether connected or otherwise. 
 
 Sec. 4. Atid be it further enacted, That no steamboat boiler hereafter 
 built, to which the heat is applied on the outside of the shell, shall be con- 
 structed of plates of more than three tenths of an inch in thickness, the 
 ends or heads of the boiler only excepted. And every steamboat boiler 
 hereafter built, if employed on rivers flowing into the Gulf of Mexico, or 
 their tributaries, shall have not less than three inches of clear space for
 
 APPENDIX. 709 
 
 water between and around its internal flues. And steamers hereafter 
 built, which shall employ four or more boilers set in a battery, shall have 
 the same divided in such a manner that one half, as nearly as may be, of 
 the number of boilers employed will act independently of the other half, so 
 far as relates to the water connection ; but the steam from all the boilers 
 may be connected as provided by this act. 
 
 Sec. 5. A7id be it further enacted, That cotton, hemp, hay, straw, or other 
 easily ignitible commodity, shall not be carried on the decks or guards of any 
 steamer carrying passengers, except on ferry-boats crossing rivers, and 
 then only on the sterns of such boats, unless the same shall be protected by 
 a complete and suitable covering of canvas or other proper material, to 
 prevent ignition from sparks, under a penalty of one hundred dollars for 
 each offence. Nor shall coal oil or crude petroleum be hereafter carried on 
 such steamers, except on the decks or guards thereof, or in open holds, 
 where a free circulation of air is secured, and at such distance from the 
 furnaces or fires as may be prescribed by any supervisors [supervising] in- 
 spector or any board of local inspectors. 
 
 Sec. 6. And he it further enacted, That barges carrying passengers 
 while in tow of a steamer shall be subject to the provisions of the acts for 
 the preservation of the lives of passengers, so far as relates to fire-buckets, 
 axes, and life-preservers. For a violation of this section, the penalty shall 
 be one hundred dollars. 
 
 Sec. 7. And he it further enacted, That steamers used as freight boats 
 shall be subject to the same inspection and requirements as provided for 
 ferry, tug, and canal boats, by an act relating to steamboats, approved the 
 eighth day of June, eighteen hundred and sixty-four, and to the provisions 
 of tliis act. 
 
 Sec. 8. And be it further enacted. That if any person connected, as a 
 member or otherwise, with any association of steamboat pilots, engineers, 
 masters, or owners, shall accept or attempt to exercise the functions of the 
 office of steamboat inspector, it shall be a misdemeanor, for which he shall 
 forfeit his office, and shall be further subject to a penalty of five hundred 
 dollars. 
 
 Sec. 9. And be it further enacted. That all vessels navigating the bays, 
 inlets, rivers, harbors, and other waters of the United States, except ves- 
 sels subject to the jurisdiction of a foreign power, and engaged in foreign 
 trade, and not owned in whole or in part by a citizen of the United States, 
 shall be subject to the navigation laws of the United States ; and all ves- 
 sels propelled in whole or in part by steam, and navigating as aforesaid, 
 shall also be subject to all rules and regulations consistent therewith, estab- 
 lished for the government of steam vessels in passing, as provided in the 
 twenty-ninth section of an act relating to steam vessels, approved the thir-
 
 710 APPENDIX. 
 
 tieth day of August, eighteen hundred and fifty-two. And every sea-going 
 steam vessel now subject or hereby made subject to the navigation laws of 
 the United States, and to the rules and regulations aforesaid, shall, when 
 under way, except upon the high seas, be under the control and dii'ection 
 of pilots licensed by the inspectors of steam vessels ; vessels of other coun- 
 tries and public vessels of the United States only excepted.^ 
 
 Sec. 10. And be it further enacted, That all sea-going vessels carrying 
 passengers, and those navigating any of the northern and northwestern 
 lakes, shall have the life-boats required by law, provided with suitable boat- 
 disengaging apparatus, so arranged as to allow such boats to be safely 
 launched with their complements of passengers while such vessels are under 
 speed or otherwise, and so as to allow such disengaging apparatus to be 
 operated by one person disengaging both ends of the boat simultaneously 
 from the tackles by which it may be lowered to the water. 
 
 Sec. 11. And be it further enacted, That the provision for a foremast- 
 head light for steamships, in an act entitled " An act fixing certain rules 
 and regulations for preventing collisions on the water," approved the twen- 
 ty-ninth day of April, eighteen hundred and sixty-four, shall not be construed 
 to apply to other than ocean-going steamers and steamers carrying sail. 
 River steamers navigating waters flowing into the Gulf of Mexico shall 
 carry the following lights, viz. : one red light on the outboard side of the 
 port smoke-pipe, and one green light on the outboard side of the starboard 
 sraoke-pipe ; these lights to show both forward and aft, and also abeam on 
 their respective sides. All coasting steamers, and those navigating bays, 
 lakes, or other inland waters, other than ferry-boats, and those above pro- 
 vided for, shall carry the red and green lights, as prescribed for ocean-going 
 steamers ; and, in addition thereto, a central range of two white lights ; 
 the after light being carried at an elevation of at least fifteen feet above the 
 light at the head of the vessel ; the head light to be so constructed as to 
 show a good light through twenty points of the compass, namely, from right 
 ahead to two points abaft the beam on either side of the vessel ; and the 
 after light to show all around the horizon. 
 
 ACT OF 1866, CHAPTER 286 (14 U. S. Stats, at Large, 304). 
 An Act to prevent the Weariixg of Sheath-Knives by American Seamen. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the existing 
 regulation for the government of the navy of the United States, proliibit- 
 ing the wearing of sheath-knives on shipboard is hereby extended and 
 made applicable to all seamen in the merchant service. 
 ^ See Actof 1867, C.83.
 
 APPENDIX. 711 
 
 Sec. 2. And be it further enacted, That it shall be the duty of the mas- 
 ter or other officer in command of any ship or vessel registered, enrolled, 
 or licensed under the laws of the United States, and of the owner or other 
 person entering into contract for the employment of a seaman or other 
 subordinate upon any such ship or vessel, to inform everj' person offering to 
 ship himself of the provisions of this law, and to require his compliance 
 therewith, under a penalty of fifty dollars for each omission, to be sued for 
 and recovered in the name of the United States of America, under the 
 direction of the secretary of the treasury, one half for the benefit of the 
 informer, and the other half for the benefit of the fund for the relief of sick 
 and disabled seamen. 
 
 ACT OF 1866, CHAPTER 298 (14 U. S. Stats, at Large, 328). 
 An Act to protect the Revenue, and for other Purposes. 
 
 Section 4. And be it further enacted, That all laws and parts of laws 
 allowing fishing bounties to vessels hereafter licensed to engage in the fish- 
 eries be, and the same are hereby, repealed : Provided, That, from and after 
 the date of the passage of [t]his act, vessels licensed to engage in the fish- 
 eries may take on board imported salt in bond to be used in curing fish, 
 under such regulations as the secretary of the treasury shall prescribe, 
 and upon proof that said salt has been used in curing fish, the duties on the 
 same shall be remitted. 
 
 ACT OF 1867, CHAPTER 83 (14 U. S. Stats, at Large, 411). 
 
 An Act to amend the Act entitled " An Act further to provide for the Safety of the Lives of Pas- 
 sengers on hoard of Vessels propelled in whole or or in part by Steam, to regulate the Salaries 
 of Steamboat Inspectors, and for other Purposes," approved July 25, 1866. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That section nine of 
 the act entitled " An act to amend the act entitled ' An act further to pro- 
 vide for the safety of the lives of passengers on board of vessels propelled 
 in whole or in part by steam, to regulate the salaries of steamboat inspec- 
 tors, and for other purposes,'" approved July twenty-five, eighteen hundred 
 and sixty-six, be, and the same is hereby, amended so as to read as 
 follows : — 
 
 Sec. 9. And be it further enacted, That all vessels navigating the bags 
 [bays], inlets, rivers, harbors, and other waters of the United States, ex- 
 cept vessels subject to the jurisdiction of a foreign power, and engaged in 
 foreign trade, and not owned in whole or in part by a citizen of the United 
 States, shall be subject to the navigation laws of the United States ; and 
 all vessels propelled in whole or in part by steam, and navigating as afore- 
 said, shall also be subject to all rules and regulations consistent therewith,
 
 712 APPENDIX. 
 
 established for the government of steam vessels in passing, as provided in 
 the twenty-ninth section of an act relating to steam vessels, approved 
 the thirtieth day of August eighteen hundred and fifty-two. And every 
 sea-going steam vessel now subject, or hereby made subject, to the naviga- 
 tion laws of the United States, and to the rules and regulations aforesaid, 
 shall, when under way, except upon the high seas, be under the control and 
 direction of pilots licensed by the inspectors of steam vessels ; vessels 
 of other countries and public vessels of the United States only excepted ; 
 Provided, however, That nothing in this act, or in the act of which it is 
 amendatory, shall be construed to annul or affect any regulation established 
 by the existing law of any State requiring vessels entering or leaving a 
 port in such State to take a pilot duly licensed or authorized by the laws of 
 such State, or of a State situate upon the waters of the same port. 
 
 RESOLUTION No. 10 (15 U. S. Stats, at Large, 22). 
 
 A Resolution amending the Ninth Section of "An Act to amend an Act entitled 'An Act 
 to provide for the better Security of the Lives of Passengers on board of Vessels propelled 
 in whole or in part by Steam,' and for other Purposes," approved August thirtieth, 
 eighteen hundred and fifty-two. 
 
 Resolved hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the fifth division of the 
 ninth section of an act entitled " An act to amend an act entitled an act 
 to provide for the better security of the lives of passengers on board of 
 vessels propelled in whole or part by steam and for other purposes," 
 approved August thirtieth, in the year eighteen hundred and fifty-two, is so 
 far amended that inspectors may, in the license therein provided for, ex- 
 empt a steamer from the obligation to carry in a safe, chest, or apartment, 
 composed of or lined with metal, compact packages of friction-matches, 
 securely packed in strong, tight wooden chests or boxes, the covers of 
 which shall be firmly fastened on by locks, screws, or other fastenings, and 
 which shall be stowed in a safe part of the steamer designated in their 
 license by the inspectors, and at a safe distance from any fire. 
 
 ACT OF 1868, CHAPTER 137 (15 U. S. Stats, at Large, 84). 
 
 An Act to amend Section Five of an Act entitled " An Act concerning the Registering and 
 Recording of Ships or Vessels," approved December thirty-one, seventeen hundred and ninety- 
 two. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled. That section five of an act en- 
 titled " An act concerning the registering and recording of ships or ve.-^sels," 
 approved December thirty-one, seventeen hundred and ninety-two, be, and 
 the same is hereby, repealed.
 
 APPENDIX. 713 
 
 AN ACT 
 
 TO PROVIDE FOE THE LICENSING AND GOVERNMENT OF THE PILOTS AND REGU- 
 LATING PILOTAGE OF THE PORT OF NEW YORK, 
 
 Passed June 28, 1853. 
 
 EMBODYING THE AMENDMENTS, 
 
 Passed April 11, 1854, April 4, 1857, March 17, 1865, and May 16, 1867. 
 
 ALSO, 
 THE BY-LAWS OF THE BOARD OF COMMISSIONERS OF PILOTS FOR THE PORT OF 
 
 NEW YORK. 
 
 The People of the State of New York, represented in Senate and As- 
 sembly, do enact as follows : — 
 
 Section 1. There shall be in the city of New York a board, entitled 
 " The Board of Commissioners of Pilots," consisting of five persons, to be 
 elected as soon as convenient after the passage of this act, and to hold their 
 offices respectively for two years from the time of their election, and until 
 others shall be elected. 
 
 Sec. 2. Three of such commissioners shall be elected by the members 
 of the Chamber of Commerce of the city of New York, at a meeting to 
 be called for the purpose, to be specified in the notice for the meeting and 
 tlie certificate of the secretary of that body, or other officer regularly per- 
 forming his duties for the time being, shall be prima facie evidence of 
 such election. 
 
 Sec. 3. Two other of such commissioners shall be elected by the presi- 
 dents and vice-presidents of the marine insurance companies of the city of 
 New York, com[)osing or represented in the Board of Underwriters of said 
 city, at a regular convened meeting of such board, on the notice of their 
 secretary, stating that the election of commissioners will take place or of 
 some member of the board by them duly authorized, given in writing at 
 least one day before the election, stating the election of commissioners will 
 take place, and delivered at the office of such company. Each insurance 
 company represented at such meeting shall be entitled to one vote, and the 
 certificate of the secretary of such board, or of any officer acting in his 
 stead, shall be sufficient prima facie evidence of an election. 
 
 Sec. 4. Upon the expix-ation of the term of office of any commissioner 
 or commissioners, or within thirty days prior thereto, and upon any va- 
 cancy occurring by death, resignation, or removal from the State or other 
 cause, another election for the term of two years shall be made by the 
 same class of persons, or authority, as that which made the election of the 
 office so expiring or becoming vacant.
 
 714 APPENDIX. 
 
 Sec. 5. Each commissioner before entering upon the duties of his office 
 shall take the usual oath of office before an officer authorized to administer 
 oaths, which oath or affirmation shall be filed without delay in the office of 
 the clerk of the city and county of New York. 
 
 Sec. 6. The commissioners shall appoint a secretary, who shall take a 
 like oath, to be filed in like manner, as provided in section five, and they 
 may remove him at any time, and appoint another, and shall prescribe his 
 duties and compensation. 
 
 Sec. 7. The board shall establish an office in some convenient and 
 proper place in the city of New York, where the commissioners shall meet 
 on the first Tuesday of every month, and as much oftener, by adjournment, 
 or upon a notice given by any one of them, or by the secretary, as circum- 
 stances may require. 
 
 Sec. 8. The commissioners shall require their secretary, in person or 
 by deputy, to be in daily attendance at their office on all ordinary business 
 days, during the reasonable office hours, and shall cause to be kept by him 
 a proper book or books in which shall be written all the rules and regula- 
 tions made by them, and all their official transactions and proceedings, and 
 whatever else may be deemed by them proper and useful, and immediately 
 pertaining to their duties or to tlie pilot service. They shall also cause to 
 be kept, by their secretary, a register of the names and places of residence 
 of all the pilots who may be licensed by virtue of this act, with the dates 
 of their licenses respectively, and such books may be inspected by any 
 person interested. 
 
 Sec. 9. The commissioners, or a majority of them, shall, with all con- 
 venient speed, proceed to license, for such term as they may think proper, 
 so many pilots as they may deem necessary for the port of New York ; 
 and such commissioners may specify, in such licenses, different degrees of 
 qualifications, appropriate to different parts or branches of duty, according 
 to the competency of the applicant. No license shall be granted to any 
 person holding any license or authority from, or under the authority or 
 laws of any other State ; and the said commissioners, or a majority of them, 
 shall have power and authority to revoke and annul the license of any 
 person so licensed by them to act as a pilot, who shall not be attached to a 
 boat approved by said board, or who shall be guilty of intoxication or 
 other misconduct while on duty. 
 
 Sec. 10. It shall be the duty of the said commissioners, before they 
 shall grant a license to any person applying therefor to act as a pilot in 
 pursuance of this act, within one week thereafter, to call such applicant be- 
 fore them, and in presence of one or more of the pilots of the said port, 
 licensed to pilot vessels to and from the said port, by the way of Sandy 
 Hook, who shall be notified to attend for the purpose, and who are hereby
 
 APPENDIX. 715 
 
 required to attend and assist in such examination ; or, in case of the non- 
 attendance of the pilot or pilots who shall be so notified to attend for that 
 purpose, then without the presence or assistance of any licensed pilot, to 
 examine or cause to be examined such applicant, touching his qualifications 
 for the office of a pilot, and in particular touching his knowledge of the 
 sailing and management of a square-rigged vessel, and also touching his 
 knowledge of the tides, soundings, bearing, and distance of the several 
 shoals, rocks, bars and points of land, and night lights, in the navigation for 
 which he applies for a license to act as a pilot, and touching any other 
 matter relating thereto, which the said commissioners may think proper. 
 And if, upon examination, the person so applying shall be found to be of 
 good moral character and terapei-ate habits, and to be possessed of suffi- 
 cient ability, skill, and experience to act as a pilot, and not otherwise, the 
 said commissioners may grant him a license for piloting vessels to and from 
 the port of New York, by way of Sandy Hook. 
 
 Sec. 11. The commissioners, before granting licenses, shall require all 
 pilots to enter into recognizance to the people of this State, with two 
 sureties, to be approved by such commissioners, or a majority of them, each 
 in a penalty not exceeding five hundred dollars, conditioned that the pilot 
 shall diligently and faithfully perform his duties as pilot, and observe the 
 rules, and regulations, and decisions of the board ; and every such recog- 
 nizance shall be prosecuted in the name of the people of the State of New 
 York, by or in behalf of the commissioners, provided a majority of them 
 shall so instruct ; and if any amount be collected in such suit, it shall be 
 paid to the said commissioners, and they may direct the same to be ap- 
 plied for purposes as expressed in section twenty-two. 
 
 Sec. 12. The said commissioners shall have the power to regulate the 
 stationing of pilot boats, for the purpose of receiving pilots from outward 
 bound vessels ; and may alter or amend any existing regulations for pilots 
 and make and duly promulgate and enforce new rules or regulations, not 
 inconsistent with the laws of this State, or of the United States, which shall 
 be binding and effectual upon all pilots licensed by them, and upon all 
 parties employing them. They may declare and enforce forfeitures of 
 pilotages, upon any mismanagement or neglect of duty by the pilots 
 licensed by them ; they may declare, and impose, and collect fines and 
 penalties not exceeding two hundred and fifty dollars for each offence ;-to 
 prevent any of the pilots licensed by them from combining injuriously with 
 each other, or with other persons, and to prevent any person licensed by 
 them from acting as a pilot during his suspension or after his license may 
 be revoked ; and the said commissioners may establish and enforce all 
 other needful rules and regulations for the conduct and government of the 
 pilots licensed by them, and the parties employing them ; and they may en-
 
 716 APPENDIX. 
 
 force and receive accounts of all moneys collected for pilotage by the pilots 
 licensed by them, and may impose and collect from such pilots a sum not 
 exceeding three per cent on the amount thereof, to defray their necessary 
 expenses, including clerk hire and office rent. 
 
 Any pilot bringing in a vessel from sea shall, by himself or one of his 
 boat's company, be entitled to pilot her to sea when she next leaves the 
 port, unless in the mean time, a complaint for misconduct or incapacity shall 
 have been made against such pilot or one of his boat's company, and 
 proved before the Board of Commissioners of Pilots ; provided, however, 
 that if the owner of any vessel shall desire to change such pilot, then the 
 said commissioners may assign any other pilot on the same pilot boat to 
 pilot said vessel to sea. 
 
 Sec. 13. The fees for pilotage are hereby established as follows : — 
 
 For every merchant vessel, inward bound, and not exempted from pilot- 
 age by virtue of these regulations, drawing less than fourteen feet of 
 water, three dollars and seventy-five cents per foot. 
 
 For every vessel drawing fourteen feet and less than eighteen feet of 
 water, four dollars and fifty cents per foot. 
 
 For every vessel drawing eighteen feet, and under twenty-one feet of 
 water, five dollars and fifty cents per foot. 
 
 For every vessel drawing twenty-one feet of water, and upwards, six 
 dollars and fifty cents per foot. 
 
 If the masters or owners of any vessel shall request the pilot to moor 
 said vessel at any place within Sandy Hook, and not to be taken to the 
 wharf or harbor of New York, or the vessel to be detained at Quarantine, 
 the same pilotage shall be allowed and the pilot entitled to his discharge. 
 
 For piloting national armed vessels of the United States, and also those 
 of foreign nations, seven dollars and fifty cents per foot.^ 
 
 When any ship or vessel, bound to the port of New York, and boarded 
 by any pilot appointed by this board, at such distance to the southward or 
 eastward of Sandy Hook lighthouse as that said lighthouse could not be 
 seen from the deck of such ship or vessel in the daytime, and in fair 
 weather, the addition of one fourth to the rates of pilotage hereinbefore 
 mentioned shall be allowed to such pilot. 
 
 Sec. 14. The pilotage on merchant vessels, outward, shall be as 
 follows : — 
 
 For every vessel drawing less than fourteen feet of water, two dollars 
 and seventy cents per foot. 
 
 For every vessel drawing fourteen feet, and less than eighteen feet of 
 water, three dollars and ten cents per foot. 
 
 * See ante, p. 707.
 
 APPENDIX. 717 
 
 For every vessel drawing eighteen feet, and less than twenty-one feet of 
 water, four dollars and ten cents per foot. 
 
 For every vessel drawing twenty-one feet and upward, four dollars and 
 seventy-five cents per foot. 
 
 Sec. 15. The rates of pilotage for any intermediate distance shall be 
 determined by the board of commissioners, and promulgated in their rules 
 and regulations for the government of pilots. 
 
 Sec. 16. Between the first day of November and the first day of April, 
 inclusive, four dollars shall be added to the full pilotage of every vessel 
 coming in or going out of the port of New York. 
 
 Sec. 17. For every day of detention in the harbor of an outward bound 
 vessel, after the services of a pilot liave been required and given, except 
 detention shall be caused by such adverse winds and weather that the ves- 
 sel cannot get to sea ; and for every day of detention of an inward bound 
 vessel by ice longer than two days for passage fi'om sea to wharf, three dol- 
 lars shall be added to the pilotage. If any pilot shall be detained at quaran- 
 tine, or elsewhere, by the health officer, for being or having been on board 
 a sickly vessel, as pilot, the master, owner, agent, or consignee of such ves- 
 sel shall pay to such pilot all necessary expenses of living, and three dol- 
 lars per day for each and every day of such detention. 
 
 Sec. 18. The pilotage shall be payable by the master, owner, consignee, 
 or agent entering or clearing the vessel at the port of New York, who 
 shall be jointly and severally liable therefor. 
 
 Sec. 19. a pilot who is carried to sea when a boat is attending to 
 receive him shall receive at the rate of one hundred dollars a month 
 during his necessary absence. 
 
 Sec. 20. Masters of vessels shall give an account to the pilot, when 
 boarding, of the draught of such vessels, and in case the draught given is 
 less than the actual di'aught, he shall forfeit the sura of twenty-five dollars, 
 which may be sued for and recovered by the commissioners, as is here- 
 inafter provided in section twenty-seven, in respect to other fines and 
 penalties. 
 
 Sec. 21. For services rendered by pilots in moving or transporting ves- 
 sels in the harbor of New York, the following shall be the fees : — 
 
 For moving from North to East River, or vice versa, (if a seventy-four 
 gun ship, twenty dollars ; if a sloop-of-war, ten dollars ;) if a merchant 
 vessel, five dollars ; except such vessel shall have arrived from sea, or is 
 ready for and bound to sea, on the day such services for transportation are 
 rendered ; but if the services are rendered thereafter, such payment shall 
 be made. -^ 
 
 For moving any vessel from the quarantine to the city of New York, 
 
 * See ante, p. 707.
 
 718 APPENDIX. 
 
 one quarter of the sum that would be due for the inward pilotage of such 
 vessel. 
 
 For hauling any vessel from the river to a wharf, or from a wharf into 
 the river, three dollars except on the day of arrival or departure of such 
 vessel. 
 
 Sec. 22. It shall be the duty of the commissioners, out of any funds 
 which may be obtained, to provide rewards, to encourage the prompt 
 relief of disabled vessels, and the speedy report of the same, and gen- 
 erally to encourage not only the energetic performance of duty, but 
 benevolent and praiseworthy efforts to relieve vessels and passengers from 
 distress or suffering. 
 
 Sec. 23. The commissioners shall have power and authority, at any 
 time, to suspend any pilot so licensed, for any period they may think 
 proper, and also to revoke or annul any license which shall have been 
 granted, upon satisfactory proof of negligence or carelessness on the part 
 of such pilot, or of wilful dereliction of duty, or of wilful disobedience of 
 any lawful rule or regulation duly made and promulgated by said commis- 
 sioners ; but the pilot or pilots so suspended may at any time, upon due 
 notice, appeal to the commissioners for a rehearing of their case ; and the 
 commissioners shall have power to confirm or reverse the previous act or 
 decision of the said board. 
 
 Sec. 24. It shall be the duty of the commissioners to hear and examine 
 all complaints duly made in writing against any pilot licensed by them, or 
 against any person connected with a boat of such pilot, for any misbe- 
 havior or neglect of duty, or breach of their rules or regulations, that shall 
 appear to them material to be investigated ; and also all complaints made 
 in like manner by any licensed pilot against any master, owner, or seaman 
 of a vessel for any misbehavior toward such pilot in the performance of 
 his duty, or any breach of such rules or regulations. 
 
 Sec. 25. Before any person shall be proceeded against on any com- 
 plaint, and before any pilot be suspended longer than for one month, or be 
 removed, such person or pilot shall be notified in writing, signed by the 
 secretary, to appear before the commissioners, specifying the nature and 
 substance of such complaint, which notice shall be served personally, at 
 least five days before the time fixed for appearance, and the commissioners, 
 for just cau^e, shall postpone or adjourn tlie hearing from time to time ; a 
 certificate of such commissioners, or a majority of them, with proof of 
 such service or notice, shall be prima facie, but not conclusive, evidence 
 that the party upon whom the notice was served, and a fine or penalty 
 thereupon imposed, is liable to pay such fine or penalty. 
 
 Sec. 2G. The secretary, under the supervision of the commissioners, 
 shall at the instance eitlier of the complaining or defending party, issue
 
 APPENDIX. 719 
 
 subpoenas for compelling the attendance of witnesses to testify before the 
 commissioners, in all cases in which the power to hear and examine is con- 
 ferred by tiie act ; and it shall be the duty of the commissioners to ex- 
 amine all such witnesses on oath, to be administered by them, as shall 
 appear to them to give material testimony, and each person subpcDcnaed as a 
 witness shall be entitled to the like compensation from the party requiring 
 his attendance, and be subject to the like penalties and punishments for 
 disobedience, or for false swearing, as in civil suit at law in the court of 
 record. 
 
 Sec. 27. All pecuniary fines or penalties imposed by the said commis- 
 sioners, by virtue of this act, may be sued for in the name of the " Board 
 of Commissioners of Pilots," and the notice and certificate given as afore- 
 said may be set forth in pleading, without setting forth other facts or cir- 
 cumstances. The decision of a majority of the commissioners shall be 
 conclusive upon all questions arising under this act, except as hereinbefore 
 provided. In case of an omission to fill any vacancy in the board of com- 
 missioners for one month, the remaining two or three commissioners (as 
 the case may be) shall have authority to pei-form all the duties of the 
 commissioners for the time being. 
 
 Sec. 28. It shall be the duty of the secretary and his clerks, if any, 
 when not employed, under the foregoing provisions of this act, to aid the 
 licensed pilots in keeping their accounts of pilotage, and in collecting the 
 same, if desired, and in keeping a register of calls for pilots. 
 
 Sec. 29. No master of a vessel under three hundred tons burden, be- 
 longing to a citizen of the United States, and licensed and employed in the 
 coasting trade by way of Sandy Hook, shall be required to employ a 
 licensed pilot, but in case the services of a pilot shall have been given, the 
 pilot shall be entitled to the rates established. If the master of any ves- 
 sel above three hundred tons burden, and owned by a citizen of the United 
 States, and sailing under a coasting license to or from the port of New 
 York by the way of Sandy Hook, shall be desirous of piloting his own vessel, 
 he shall first obtain a license for such purpose from the commissioners of 
 pilots, who are hereby authorized and required to grant the same, if such 
 master shall, after an examination had by said commissioners, be deemed 
 competent ; which said license shall be and continue in force one year from 
 the date thereof, or until the termination of any voyage, during which the 
 license may expire. For such license the master, to whom it shall be 
 granted, shall pay to the said commissioners four cents per ton. All 
 masters of foreign vessels and vessels from a foreign port, and all vessels 
 sailing under register, bound to or from the port of New York by the 
 way of Sandy Hook, shall take a licensed pilot ; or, in case of refusal to 
 take such pilot, shall himself, owners, or consignees, pay the said pilotage,
 
 720 APPENDIX. 
 
 as if one had been employed ; and such pilotage shall be paid to the pilot 
 first speaking or offering his services as pilot to such vessel. 
 
 Any person not holding a license as pilot under this act, or under the 
 laws of the State of New Jersey, who shall pilot, or offer to pilot any ship 
 or vessel to or from the port of New York by the way of Sandy Hook, 
 except such as are exempt by virtue of this act, or any master or person 
 on board a steam-tug or tow-boat, who shall tow such vessel or vessels 
 without such licensed pilot on board such vessel or vessels, he shall be 
 deemed guilty of a misdemeanor, and, on conviction, shall be punished by 
 a fine not exceeding one hundred dollars, or imprisonment not exceeding 
 sixty days ; and all persons employing a person to act as pilot, not holding 
 a license under this act, or under the laws of the State of New Jersey, 
 shall forfeit and pay to the Board of Commissioners of Pilots the sum of 
 one hundred dollars. 
 
 The provisions of this act shall not apply to vessels propelled wholly or 
 in part by steam, owned or belonging to citizens of the United States, and 
 licensed and engaged in the coasting trade. 
 
 Sec. 30. This act shall not repeal, or in any way affect the provisions of 
 an act, entitled " An act concerning the pilots of the channel of the East 
 River, commonly called 'Hell Gate,'" passed April 15, 1847. 
 
 Sec. 31. All laws now in force, and which are inconsistent with the 
 provisions of this act, are hereby repealed. 
 
 April 24, 1857. 
 
 BY-LAWS. 
 
 1st. The election for President shall take place on the second Tuesday in 
 October, and be for the term of two years, and in case of death or resig- 
 nation the vacancy shall be filled at a regular meeting of the board. 
 
 The Secretary and Assistant Secretary shall be chosen when there is a 
 vacancy; their term of service to be during the pleasure of the Board. 
 
 2d. The President shall preside at the meetings of the Board, and his 
 duties shall be to conduct the examination of candidates for the office of 
 pilot, sign licenses when granted, and exercise a general supervision over 
 the office. In the absence of the President, a Chairman jpro tern, shall be 
 appointed, whose duties shall be the same. 
 
 3d. The duties of the Secretary shall be as provided in sections 8 
 and 28. 
 
 4th. The meetings shall be as provided for in section 7. 
 
 5th. The charge for licenses shall be one dollar for the first issue, and 
 wenty-fiye cents for renewal.
 
 APPENDIX. 721 
 
 6th. The pilots shall pay 2h per cent on the gross amount of pilotage, 
 •which sum shall be paid to the Secretary of the Board within one month 
 from the time said pilotage was earned, and any pilot not so paying shall 
 forfeit his license. 
 
 7th. The pilots shall report to the Secretary at the office of the Board 
 the name and draught of every vessel piloted by them ; where boarded, 
 and what extra services, if any, were rendered ; and such report shall be 
 made within 48 hours after the services have been performed, under a 
 penalty of ten dollars for each vessel not so reported. 
 
 Should a vessel take the ground or meet with any accident while in 
 charge of a pilot, the pilot shall report the same to the Secretary at the 
 office of the Board within 24 hours after arrival in port. Every violation 
 of this Tule shall be punishable by a fine of twenty-five dollars. 
 
 8th. The boats shall keep station at or near the Hook, alternately, for 
 four days each, and in accordance with a list to be made out by the 
 Secretary. When on station, the boat shall have a conspicuous signal at 
 the masthead. It shall be the duty of the boat on station to render every 
 necessary aid for taking out and receiving pilots from outward bound ves- 
 sels, and give every facility for sending said pilots to the city of New York 
 or quarantine. 
 
 In case a pilot is carried off to sea in consequence of the non-attendance 
 of the station boat, except by unavoidable accident, the company of said 
 boat shall pay to him at the rate of $100 per month during his necessary 
 absence. 
 
 The boat on station shall remain until relieved ; and any boat not being 
 in time to take her station, shall pay to the boat not relieved, $25 per day, 
 and shall likewise have added to her station the time she is absent. 
 
 Signal. — Jack at the foremast head. 
 
 9th. All boats shall have conspicuous numbers in their sails, said 
 numbers to be designated by the commissioners. 
 
 10th. No pilot shall, by any unfair means, or by a reduced rate, take a 
 vessel from another pilot, and in case of his so doing, shall forfeit to the 
 pilot displaced the full amount of the pilotage. 
 
 11th. No boat shall put a boy or other person than a licensed pilot on 
 board a vessel, for the purpose of piloting said vessel, under a penalty of 
 fifty dollars and the amount of pilotage, said sum to be paid by the 
 owners of the boat to the commissioners, and to be applied as directed in 
 section 22. This shall not apply to vessels in distress, providing the 
 masters of such vessels are willing to employ the services of such boy or 
 person ; such boy or person shall keep the Jack flying until the lighthouse 
 on Sandy Hook bears south ; and in case a regular pilot takes charge of 
 the vessel, the person who first took charge shall be entitled to half the in- 
 ward pilotage. 
 
 VOL. IL 46
 
 722 APPENDIX. 
 
 12th. All matters in relation to apprentices shall be left to the commis- 
 sioners, both as to their number, time of service, &c., &c. 
 
 13th. There shall be a register kept in the office of all boat-keepers. 
 Boat-keepers serving the longest time in one boat shall, when an appoint- 
 ment is to be made, have the preference, said time not to be less than three 
 years. Any boat-keeper leaving one boat and going to another, without 
 good and sufficient cause, shall lose all the privileges he may have of be- 
 coming a pilot. 
 
 14th. The names of all persons applying for license to pilot shall be 
 posted up in some conspicuous place in the office of the commissioners, at 
 least thirty days before any examination shall be had, and any person hav- 
 ing any complaint to make against an applicant, shall make the same in 
 writing, giving his reasons therefor, the same to be open to inspection. 
 
 15th. Pilots are required to board the nearest vessel having a signal fly- 
 ing fdt a pilot, except in case there should be a vessel in sight with a sig- 
 nal of distress, under a penalty of fifty dollars. 
 
 16th. Every licensed pilot shall be attached to a pilot boat; no pilot 
 shall remain unattached for more than thirty days, without permission 
 from the commissioners. Any pilot reglecting or refusing to join a pilot 
 boat, within ten days after due notice shall have been given him to join a 
 boat, shall, unless satisfactory reasons are given for the non-compliance of 
 the order, be fined the sum of $10, or be suspended for such time as the 
 commissioners shall deem proper, or have his license revoked, at the option 
 of the commissioners. 
 
 17th. Pilots are required to transport a vessel to any part of the port of 
 New Yoi'k, when applied to, under a penalty of twenty-five dollars, such 
 service to be paid for as per section 21 of the law. 
 
 18th. No master of a pilot boat shall carry to sea on her station, or be 
 in any way aiding or assisting in putting on board any ship or vessel, for 
 the purpose of piloting or conducting her, any person not licensed, or 
 whose license as a pilot shall have been suspended or withdrawn by the 
 commissioners, or shall not have been renewed. If any such person shall 
 be received on board a pilot boat, the pilot or pilots receiving him on board, 
 shall, for every offence, forfeit and pay the sum of $ 25 each ; for a second 
 or subsequent offence, the pilot or pilots shall be liable to suspension, or 
 forfeiture of his or their license or licenses, at the discretion of the 
 commissioners. 
 
 19th. Any pilot destroying or mutilating by erasure or otherwise, any 
 memorial, petition, or other papers posted up in the office, by order of the 
 commissioners, will be subject to a fine of $ 25, or suspension, as the com- 
 missioners may decide. 
 
 20th. A pilot, while on his business as a pilot, found guilty of using
 
 APPENDIX. 728 
 
 abusive or insulting language, or guilty of threatening conduct, shall be 
 suspended, or have his license revoked, as the commissioners may adjudge. 
 
 21st. Pilotage for taking vessels from the old to the new Quarantine: 
 
 For vessels having had death or sickness on board, double outward pilotage. 
 
 For vessels from sickly ports, but having had no sickness on board, 
 single outward pilotage. 
 
 Pilotage of vessels from Lower Quarantine to New York, half pilotage. 
 
 Pilotage of vessels from lower to upper Quarantine quarter pilotage. 
 
 22d. Vessels boarded north or west of a line drawn from the lights on 
 the Highlands of Neversink to the Black Buoy No. 1, of the Bar, thence 
 to the Red Buoy No. 2 of Gedney's Channel, shall pay half pilotage only. 
 If boarded above the Narrows, quarter pilotage. This by-law has no 
 reference to section 21. 
 
 23d. Renewals of masters' licenses shall date from the first license 
 granted. A vessel having made a voyage without renewing her license and 
 paying pilotage, shall not derive any benefit from having paid such pilotage. 
 
 24th. No pilotage, except the regular inward pilotage, shall be allowed, 
 when vessels are detained from the non-vis itmg of the health officer. 
 
 25th. Vessels returning from sea in consequence of head winds or stress 
 of weather, shall pay full pilotage. 
 
 26th. In case of a pilot falling in with a vessel in distress or ashore, it 
 shall be his duty to notify the underwriters as soon as possible. Any pilot 
 omitting to do so shall be liable to a fine of $ 25 ; and whenever any pilot 
 shall observe that any of the buoys are not in their proper places, or that 
 any of the lighthouses are not lighted and extinguished at the proper 
 times, he shall, as soon as he returns to town, report the same to the 
 Secretary, at the office of the Board. 
 
 27th. Every pilot boat shall have a log-book, in which shall be recorded 
 the name, nativity, and age of every person attached to said boat, the 
 regular occurrences of the day, weather, courses and distances, vessels 
 spoken, &c. ; said log-book shall at all times be open to the inspection of 
 the commissioners of pilots, or such person as they may designate, and 
 when such log-book is completed, which shall be on the first day of the 
 months of January, April, July, and October in each year, it shall be de- 
 posited in the office of the Board of Commissioners of Pilots. Should a 
 boat be at sea on the dates designated herein, then the said log-book shall 
 be so deposited within 48 hours after the return of said boat to this port. 
 
 28th. Any pilot bringing in a vessel from sea shall by himself, or one 
 of his boat's company, be entitled to pilot her to sea when she next leaves 
 the port, unless in the mean time a complaint for misconduct or incapacity 
 shall have been made against such pilot, or one of his boat's company, and 
 proved before the Board of Commissioners of Pilots. Any pilot who shall
 
 724 APPENDIX. 
 
 take such vessel to sea without the consent of the pilot who brought her in- 
 to port (such last-mentioned pilot, or one of his boat's company, being 
 ready, and offering to take her to sea) shall pay a sum equal to the legal 
 outward pilotage, which shall be recoverable in the name of the Board of 
 Commissioners of Pilots, for the benefit of the pilot entitled to perform the 
 service. 
 
 29th. Any pilot boat taking or receiving from an outward bound vessel 
 a pilot under suspension, or whose license has been revoked, or a person not 
 holding a license under the laws of this State or of the State of New Jer- 
 sey, will be subject to a fine of twenty-five dollars for each pilot or person 
 60 taken or received on board to be paid by the owners of such pilot boat. 
 
 For a second offence the fine shall be a sum equal to the amount of the 
 pilotage of the vessel from which such pilot or person shall be taken or 
 received. 
 
 30th. The boat-keeper of every station-boat shall report to the Secretary 
 of the Board, in writing, the name of every pilot taken or received by the 
 boat from an outward bound vessel, and also the name of such vessel in 
 connection with the name of the pilot, immediately on her return to port, 
 or in neglecting to do so, shall be subject to a fine of fifty dollars for each 
 pilot so received and not reported. Said fine to be paid by the owners of 
 such boat. 
 
 31st. All pilots holding licenses under this Board, or who may be here- 
 after licensed, shall, whenever required, take and subscribe before the 
 President of the Board an oath of allegiance to the government of the 
 United States, in the form now administered to persons holding ofiice under 
 the general government ; and in case of refusal or omission by any pilot to 
 take and subscribe such oath, he shall be punished by suspension for such 
 period as the Board may determine, or by a revocation of his license. 
 
 32d. No boat shall withdraw from service [except for ordinary repairs] 
 without a written application to the Board, explaining the object of the 
 withdrawal ; the same to be subject to the decision of the Board. 
 
 33d. Every person applying for examination and license as a pilot shall 
 make such application in his own handwriting ; and such applicant should 
 have a knowledge of Navigation, sufficient to enable him to find the lati- 
 tude by an observation of the sun's altitude, to keep a dead reckoning, 
 and to lay down courses upon a chart. 
 
 34th. A pilot boat when in sight of a vessel wanting a pilot shall, if 
 there are no pilots on board, signalize the fact by running her flag or sig- 
 nal up and down twice in the daytime ; and at night by making a like 
 signal with her masthead light. 
 
 35th. No pilot, without special permission from this Board, shall go by 
 vessel, or otherwise, to any neighboring or foreign port for the purpose of
 
 APPENDIX. 
 
 725 
 
 boarding or piloting any vessel bound to the port of New York, nor shall 
 any pilot offer in any neighboring or foreign port, or the waters adjacent 
 thereto, to pilot any vessel to the port of New York, under penalty of for- 
 feiture of the pilotage to the pilot boat which shall first speak the vessel so 
 piloted. 
 
 36th. A pilot in charge of a vessel is required to stay on board until 
 notified by the master that his services are no longer wanted, under the 
 penalty of forfeiting the pilotage. The omission of the master to inform 
 the pilot that his services are not wanted will entitle the pilot to detention 
 money unless the detention is temporary, to take out passengers. 
 
 Rates of Pilotage from April \st to November \st. 
 
 Inward. 
 
 Outward. 
 
 Draught. 
 
 Eate. 
 
 
 Off 
 
 Shore. 
 
 Total. 
 
 Rate. 
 
 
 6 ft 
 
 . Oin. 
 
 $3 75 
 
 $22 50 
 
 $5 62 
 
 $28 12 
 
 $2 70 
 
 $16 20 
 
 6 
 
 6 
 
 3 75 
 
 24 37 
 
 6 09 
 
 30 46 
 
 2 70 
 
 17 55 
 
 7 
 
 
 
 3 75 
 
 26 25 
 
 6 56 
 
 32 81 
 
 2 70 
 
 18 90 
 
 7 
 
 6 
 
 3 75 
 
 28 12 
 
 7 03 
 
 35 15 
 
 2 70 
 
 20 25 
 
 8 
 
 
 
 3 75 
 
 30 00 
 
 7 50 
 
 37 50 
 
 2 70 
 
 21 60 
 
 8 
 
 6 
 
 3 75 
 
 31 87 
 
 7 96 
 
 39 83 
 
 2 70 
 
 22 95 
 
 9 
 
 
 
 3 75 
 
 33 75 
 
 8 44 
 
 42 19 
 
 2 70 
 
 24 30 
 
 9 
 
 6 
 
 3 75 
 
 35 62 
 
 8 90 
 
 44 52 
 
 2 70 
 
 25 65 
 
 10 
 
 
 
 3 75 
 
 37 50 
 
 9 37 
 
 46 87 
 
 2 70 
 
 27 00 
 
 10 
 
 6 
 
 3 75 
 
 39 37 
 
 9 84 
 
 49 21 
 
 ! 2 70 
 
 28 35 
 
 11 
 
 
 
 3 75 
 
 41 25 
 
 10 31 
 
 51 56 
 
 ■2 70 
 
 29 70 
 
 11 
 
 6 
 
 3 75 
 
 43 12 
 
 10 78 
 
 53 90 
 
 2 70 
 
 31 05 
 
 12 
 
 
 
 3 75 
 
 45 00 
 
 11 25 
 
 56 25 
 
 2 70 
 
 32 40 
 
 12 
 
 6 
 
 3 75 
 
 46 87 
 
 11 72 
 
 58 59 
 
 2 70 
 
 33 75 
 
 13 
 
 
 
 3 75 
 
 48 75 
 
 12 19 
 
 60 94 
 
 2 70 
 
 35 10 
 
 13 
 
 6 
 
 3 75 
 
 50 62 
 
 12 65 
 
 63 27 
 
 2 70 
 
 36 45 
 
 14 
 
 
 
 4 50 
 
 63 00 
 
 15 75 
 
 78 75 
 
 3 10 
 
 43 40 
 
 14 
 
 6 
 
 4 50 
 
 65 25 
 
 16 31 
 
 81 56 
 
 3 10 
 
 44 95 
 
 15 
 
 
 
 4 50 
 
 67 50 
 
 16 87 
 
 84 37 
 
 3 10 
 
 46 .50 
 
 15 
 
 6 
 
 4 50 
 
 69 75 
 
 17 43 
 
 87 18 
 
 3 10 
 
 48 05 
 
 16 
 
 
 
 4 50 
 
 72 00 
 
 18 00 
 
 90 00 
 
 3 10 
 
 49 60 
 
 16 
 
 6 
 
 4 50 
 
 74 25 
 
 18 56 
 
 92 81 
 
 3 10 
 
 51 15 
 
 17 
 
 
 
 4 50 
 
 76 50 
 
 19 12 
 
 95 62 
 
 3 10 
 
 52 70 
 
 17 
 
 6 
 
 4 50 
 
 78 75 
 
 19 69 
 
 98 44 
 
 3 10 
 
 54 25 
 
 18 
 
 
 
 5 50 
 
 99 00 
 
 24 75 
 
 123 75 
 
 4 10 
 
 73 80 
 
 18 
 
 6 
 
 5 50 
 
 101 75 
 
 25 44 
 
 127 19 
 
 4 10 
 
 75 85 
 
 19 
 
 
 
 6 50 
 
 104 50 
 
 26 12 
 
 130 62 
 
 4 10 
 
 77 90 
 
 19 
 
 6 
 
 5 50 
 
 107 25 
 
 26 81 
 
 134 06 
 
 4 10 
 
 79 95 
 
 20 
 
 
 
 5 50 
 
 110 00 
 
 27 50 
 
 137 50 
 
 4 10 
 
 82 00 
 
 20 
 
 6 
 
 5 50 
 
 112 75 
 
 28 19 
 
 140 94 
 
 4 10 
 
 84 05 
 
 21 
 
 
 
 6 50 
 
 136 50 
 
 34 12 
 
 170 62 
 
 4 75 
 
 99 75 
 
 21 
 
 6 
 
 6 50 
 
 139 75 
 
 34 94 
 
 174 69 
 
 4 75 
 
 102 12 
 
 22 
 
 
 
 6 50 
 
 143 00 
 
 35 75 
 
 178 75 
 
 4 75 
 
 104 50 
 
 22 
 
 6 
 
 6 50 
 
 146 25 
 
 36 56 
 
 182 81 
 
 4 75 
 
 106 87 
 
 23 
 
 
 
 6 50 
 
 149 50 
 
 37 37 
 
 186 87 
 
 4 75 
 
 109 25 
 
 23 
 
 6 
 
 6 50 
 
 152 75 
 
 38 19 
 
 190 94 
 
 4 75 
 
 111 62 
 
 24 
 
 
 
 6 50 
 
 156 00 
 
 39 00 
 
 195 00 
 
 4 75 
 
 114 00 
 
 24 
 
 6 
 
 6 50 
 
 159 25 
 
 39 81 
 
 199 06 
 
 4 75 
 
 116 37 
 
 25 
 
 
 
 6 50 
 
 162 50 
 
 40 62 
 
 203 12 
 
 4 75 
 
 118 75
 
 726 
 
 APPENDIX. 
 
 Rates of Pilotage from November \st to April 1st. 
 
 (rOUR DOLLARS ADDITIONAL.) 
 
 
 
 
 [nward. 
 
 
 
 Outward. 
 
 Draught. 
 
 Rate. 
 
 
 Off 
 Shore. 
 
 Total. 
 
 Rate. 
 
 
 6 ft 
 
 Oin. 
 
 $3 75 
 
 $26 50 
 
 $5 62 
 
 $32 12 
 
 $2 70 
 
 $20 20 
 
 6 
 
 6 
 
 3 75 
 
 28 37 
 
 6 09 
 
 34 46 
 
 2 70 
 
 21 55 
 
 7 
 
 
 
 3 75 
 
 30 25 
 
 6 56 
 
 36 81 
 
 2 70 
 
 22 90 
 
 7 
 
 6 
 
 3 75 
 
 32 12 
 
 7 03 
 
 39 15 
 
 2 70 
 
 24 25 
 
 8 
 
 
 
 3 75 
 
 34 00 
 
 7 50 
 
 41 50 
 
 2 70 
 
 25 60 
 
 8 
 
 6 
 
 3 75 
 
 35 87 
 
 7 96 
 
 43 83 
 
 2 70 
 
 26 95 
 
 9 
 
 
 
 3 75 
 
 37 75 
 
 8 44 
 
 46 19 
 
 2 70 
 
 28 30 
 
 9 
 
 6 
 
 3 75 
 
 39 62 
 
 8 90 
 
 48 52 
 
 2 70 
 
 29 65 
 
 10 1 
 
 
 
 3 75 
 
 41 60 
 
 9 37 
 
 50 87 
 
 2 70 
 
 31 00 
 
 10 
 
 6 
 
 3 75 
 
 43 37 
 
 9 84 
 
 53 21 
 
 2 70 
 
 32 35 
 
 11 
 
 
 
 3 75 
 
 45 25 
 
 10 31 
 
 55 56 
 
 2 70 
 
 33 70 
 
 11 
 
 6 
 
 3 75 
 
 47 12 
 
 10 78 
 
 57 90 
 
 2 70 
 
 35 05 
 
 12 
 
 
 
 3 75 
 
 49 00 
 
 11 25 
 
 60 25 
 
 2 70 
 
 36 40 
 
 12 
 
 6 
 
 3 75 
 
 50 87 
 
 11 72 
 
 62 69 
 
 2 70 
 
 37 75 
 
 13 
 
 
 
 3 75 
 
 52 75 
 
 12 19 
 
 64 94 
 
 2 70 
 
 39 10 
 
 13 
 
 Q 
 
 3 75 
 
 64 62 
 
 12 65 
 
 67 27 
 
 2 70 
 
 40 45 
 
 14 
 
 
 
 4 50 
 
 67 00 
 
 15 75 
 
 82 75 
 
 3 10 
 
 47 40 
 
 14 
 
 6 
 
 4 50 
 
 69 25 
 
 16 31 
 
 85 56 
 
 3 10 
 
 48 95 
 
 15 
 
 
 
 4 50 
 
 71 50 
 
 16 87 
 
 88 37 
 
 3 10 
 
 50 50 
 
 15 
 
 6 
 
 4 50 
 
 73 75 
 
 17 43 
 
 91 18 
 
 3 10 
 
 52 05 
 
 16 
 
 
 
 4 50 
 
 76 00 
 
 18 00 
 
 94 00 
 
 3 10 
 
 53 60 
 
 16 
 
 6 
 
 4 50 
 
 78 25 
 
 18 56 
 
 96 81 
 
 3 10 
 
 55 15 
 
 17 
 
 
 
 4 50 
 
 80 50 
 
 19 12 
 
 99 62 
 
 3 10 
 
 66 70 
 
 17 
 
 6 
 
 4 50 
 
 82 75 
 
 19 69 
 
 102 44 
 
 3 10 
 
 68 25 
 
 18 
 
 
 
 5 50 
 
 103 00 
 
 24 75 
 
 127 75 
 
 4 10 
 
 77 80 
 
 18 
 
 6 
 
 5 50 
 
 105 75 
 
 25 44 
 
 131 19 
 
 4 10 
 
 79 85 
 
 19 
 
 
 
 5 50 
 
 108 50 
 
 26 12 
 
 134 62 
 
 4 10 
 
 81 90 
 
 19 
 
 6 
 
 5 50 
 
 111 25 
 
 26 81 
 
 138 06 
 
 4 10 
 
 83 95 
 
 20 
 
 
 
 5 50 
 
 114 00 
 
 27 50 
 
 141 50 
 
 4 10 
 
 86 00 
 
 20 
 
 6 
 
 5 50 
 
 116 75 
 
 28 19 
 
 144 94 
 
 4 10 
 
 88 05 
 
 21 
 
 
 
 6 50 
 
 140 50 
 
 34 12 
 
 174 62 
 
 4 75 
 
 103 75 
 
 21 
 
 6 
 
 6 50 
 
 143 75 
 
 34 94 
 
 178 69 
 
 4 75 
 
 106 12 
 
 22 
 
 
 
 6 50 
 
 147 00 
 
 35 75 
 
 182 75 
 
 4 75 
 
 108 50 
 
 22 
 
 6 
 
 6 50 
 
 150 25 
 
 36 66 
 
 186 81 
 
 4 75 
 
 110 87 
 
 23 
 
 
 
 6 50 
 
 153 60 
 
 37 37 
 
 190 87 
 
 4 75 
 
 113 25 
 
 23 
 
 6 
 
 6 50 
 
 156 75 
 
 38 19 
 
 194 94 
 
 4 75 
 
 115 62 
 
 24 
 
 
 
 6 50 
 
 160 00 
 
 39 00 
 
 199 00 
 
 4 75 
 
 118 00 
 
 24 
 
 6 
 
 6 50 
 
 163 25 
 
 39 81 
 
 203 06 
 
 4 75 
 
 120 37 
 
 25 
 
 
 
 6 50 
 
 166 50 
 
 40 62 
 
 207 12 
 
 4 75 
 
 122 75 
 
 Transportation North to East River, and vice versa. 
 All vessels .... $ 5.00. 
 
 Pilotage from Quarantine, one quarter of the Inward Pilotage, exclusive 
 of Off Shore. 
 
 Hauling to or from wharf, three dollars. 
 
 Detention three dollars per day.
 
 APPENDIX. 727 
 
 PILOTAGE ACT OF MASSACHUSETTS. 
 
 An Act concerning Pilotage.^ 
 
 Be it enacted, Sfc, as follows : — 
 
 Section 1. All persons holding commissions as pilots in this Common- 
 wealth shall continue to hold the same until the same are revoked, or the 
 authority to act under the same is suspended, as provided herein. 
 
 Sec. 2. The regulations concerning pilotage now in force, being the 
 provisions contained in the schedule hereto annexed except so far as the 
 same are hereby modified or changed, shall remain in force until the same 
 are altered, amended, or annulled pursuant to the provisions of this act. 
 
 Sec. 3. The governor with the advice and consent of the council is 
 authorized to appoint and commission two persons to execute the office of 
 commissioners of pilots for the harbor of Boston who shall hold their 
 office during the term of three years unless sooner removed by the gov- 
 ernor and council : Provided, ahvays, that the said persons shall first be 
 recommended by the trustees of the Boston Marine Society, and that no 
 such commissioner shall at the same time be one of said trustees ; but they 
 shall be persons of experience in maritime and nautical affairs. And if 
 the said trustees shall refuse, decline, or be unable to make the recommen- 
 dation above provided for, the governor and council shall appoint the said 
 commissioners without such recommendation. 
 
 Sec. 4. The said commission ei-s shall grant commissions for pilots in 
 the harbor of Boston to such persons as they shall deem competent to re- 
 ceive them, and who have been approved by the trustees of the Boston 
 Marine Society. They may, upon satisfactory evidence of misconduct, 
 carelessness, or neglect of duty, suspend, until the meeting of the trustees 
 theA next ensuing, any pilot who now holds or may hereafter hold a com- 
 mission as pilot for the harbor of Boston ; and if the said trustees at their 
 said next.meeting shall decide that such commission ought to be revoked, the 
 said commissioners may revoke the same, or may at their discretion con- 
 tinue the suspension of such pilot until the next stated meeting of said 
 trustees and no longer for the same offijnce. They shall see that the laws 
 and regulations for pilotage within the harbor of Boston are duly observed 
 and executed. They shall receive and hear complaints by and against 
 pilots for the harbor of Boston and examine into and decide the same ; — 
 and generally they shall exercise within the harbor of Boston the same juris- 
 diction and have the same powers as are now exercised by the commis- 
 sioners of pilots, except so far as the same are limited by the provisions of 
 this act. 
 
 ' Actof 1862, c. 176.
 
 728 APPENDIX. 
 
 Sec. 5. There shall be appointed by the said commissioners a secre- 
 tary, whose duty it shall be to keep an office and be in attendance during 
 the day to receive all complaints of and against pilots for the harbor of 
 Boston, and all notifications to the same ; and said secretary shall keep a 
 fair record of the doings of said office, to be open at all times for examina- 
 tion and inspection. 
 
 Sec. 6. Once in every three mouths each pilot for the port of Boston 
 shall render to the said commissioners an accurate account of all vessels 
 piloted by him, and of all moneys received by him, or by any person for 
 him, for pilotage, and he shall pay said commissioners tliree ^ per cent on 
 the amount thereof; and the said pilots shall add three^ per cent to the 
 rates established by law at the time of rendering pilot service, and may 
 collect the same as they are authorized to collect pilotage fees ; and if any 
 pilot shall make a false return of moneys received, he shall pay a sum not 
 exceeding fifty dollars ; and from the sums so collected and paid into said 
 office, each commissioner shall receive such compensation as the trustees of 
 the Boston Marine Society may fix, together with such allowances for office 
 rent, clerk hire, and other incidental expenses as the said trustees may 
 think suitable. And if thei-e shall remain any surplus arising from said 
 commissions, after the said payments are made, the same shall be paid into 
 the treasury of the Boston Marine Society. 
 
 Sec. 7. The harbor of Boston, for the purposes of this act, shall be 
 held to include all places or landings accessible to vessels from sea included 
 within the limits of Nahant Rock on the north and Point Alderton on the 
 south. 
 
 Sec. 8. The governor, with the advice and consent of the council, 
 may appoint one or more suitable persons as pilots for the ports of Salem, 
 Marblehead, and Beverly, respectively : Provided, that said persons shall 
 first have the recommendation of the master of the Marine Society, in- Sa- 
 lem, and of the president of the Salem East India Marine Society. 
 
 Sec. 9. Any pilot who now holds, or hereafter may hold, a commission 
 as pilot for the ports named in the preceding section, or either of them, 
 may be removed from office by the governor, with the advice and consent 
 of the council, whenever the master and president of the societies aforesaid 
 shall certify that such pilot is incapable of discharging the duties of said 
 office, or otherwise unsuitable to be continued therein, or that the public 
 interest requires that he should no longer remain in office. 
 
 Sec. 10. The governor, with the advice and consent of the council, may 
 appoint one or more suitable persons to be a branch pilot or pilots for the 
 port of Newburyport : Provided, that every such person shall first obtain 
 from the Marine Society of Newburyport a certificate, signed by its clerk, 
 
 * Changed to four by Act of 1863, c. 75.
 
 APPENDIX. 729 
 
 stating that in the opinion of said society such person is capable and suit- 
 able to be appointed to that office ; and every such person who now holds, 
 or may hereafter hold, a commission as pilot for said port may be removed 
 by the governor and council whenever the said society shall in like manner 
 certify that he is incapable of discharging the duties of said office, or is 
 otherwise unsuitable to be continued therein, or that the public interest re- 
 quires that he should no longer remain in office. 
 
 Sec. 11. There shall be appointed by the governor, with the advice and 
 consent of the council, three persons to be denominated port wardens of the 
 ports of Gloucester and Rockport, who shall hold their offices during the 
 pleasure of the governor and council. They shall recommend to the 
 governor suitable persons to be pilots for the ports of Gloucester, Rockport, 
 and Manchester, respectively, who shall receive commissions as such, if ap- 
 proved by the governor with the consent of the council. 
 
 Sec. 12. There shall be appointed by the governor, with the advice and 
 consent of the council, five persons, two of whom shall reside in New Bed- 
 ford or Fairhaven, two in Dukes County and one in Wareham, to be de- 
 nominated port wardens of the ports upon Buzzard's Bay and the island of 
 Martha's Vineyard, who shall hold their office during the pleasure of the 
 governor and council. They shall recommend to the governor suitable 
 persons to be pilots for the said ports, respectively, who shall receive com- 
 missions as such, if approved by the governor with the consent of the 
 council. 
 
 Sec 13. There shall be appointed by the governor, with the advice and 
 consent of the council, three persons, one of whom shall reside in Fall 
 River, one in Somerset, and one in Taunton, to be denominated port war- 
 dens for Taunton River, who shall hold their offices during the pleasure of 
 the governor and council. They shall recommend to the governor suitable 
 persons to be pilots for Taunton River, and the ports connected with the 
 same, who shall receive commissions as such, if approved by the governor 
 with the consent of the council. 
 
 Sec. 14. There shall be appointed by the governor, with the advice and 
 consent of the council, two persons to be port wardens for the port of 
 Provincetown. The commissioners of pilots for the harbor of Boston, and 
 the port wardens of the port of Provincetown, shall recommend, from time 
 to time, suitable persons, not exceeding six in number, to be bay and har- 
 bor pilots, as mentioned in the schedule hereto annexed for the harbor of 
 Provincetown and other harbors. 
 
 Sec. 15. In all ports and places not mentioned in this act, for which 
 pilots have been heretofore or are now commissioned, the governor, with the 
 consent of the council, shall have power to appoint suitable persons to be 
 pilots, who shall hold their commissions during the pleasure of the gover-
 
 730 APPENDIX. 
 
 nor and council. All pilots in such ports and places may be suspended or 
 removed at any time by the governor and council. 
 
 Sec. 16. In all cases in which any persons or society are authorized, by 
 the provisions of this act, to recommend suitable persons for appointment 
 as pilots, it shall be lawful for the same persons or society to suspend any 
 pilot, whether now commissioned or hereafter to be commissioned, for his 
 misconduct, cai-elessness, or neglect of duty ; and in such case, such sus- 
 pension shall not continue beyond the term of sixty days, unless the same 
 shall be approved by the governor with the consent of the council. When- 
 ever the said persons or society respectively shall certify to the governor 
 that any pilot who now holds or hereafter may hold a commission as pilot 
 within their respective jurisdictions, is incapable of discharging the duties 
 of his office, or is otherwise unsuitable to be continued therein, or that the 
 public interest requires that he should no longer remain in office, such pilot 
 may be removed from office, and his commission revoked by the governor 
 with the consent of the council. 
 
 Sec. 17. The commissioners of pilots for the harbor of Boston, and the 
 persons hereby authorized to recommend suitable persons for appointment 
 as pilots, respectively, may, from time to time, recommend to the governor 
 and council such changes or modifications of the pilotage regulations, for 
 the ports or places within their respective jurisdictions as to them shall seem 
 fit ; and if such modifications or changes, respectively, or any portion of 
 the same, shall be approved by the governor with the consent of the coun- 
 cil, the governor shall make proclamation thereof, and shall cause such 
 modifications or changes to be published for four weeks consecutively, in 
 the paper selected by the secretary of the Commonwealth, pursuant to the 
 provisions of chapter three, section four, of the General Statutes, and the 
 same being so proclaimed and published for four weeks consecutively, shall 
 have the force of law and be obeyed by all persons. All such modifications 
 and changes shall be reported by the secretary of the Commonwealth to 
 the legislature, and the same shall also be published annually with the laws 
 of the Commonwealth. 
 
 Sec. 18. Each pilot receiving a commission shall pay therefor the sum 
 of five dollars. 
 
 Sec. 19. No person shall receive a commission, or exercise the office of 
 pilot, until he has given to the treasurer of the Commonwealth, a bond 
 with two sureties in the penal sum of one thousand dollars for the faithful 
 performance of all the duties of his office. The sureties on the bonds of 
 pilots for the harbor of Boston shall be satisfactory to the commissioners 
 of pilots of the harbor of Boston ; the sureties upon the bonds of pilots 
 for the other ports and places mentioned in this act shall be approved by 
 the persons or societies recommending such persons as pilots ; and the
 
 APPENDIX. 731 
 
 sureties upon the bonds of all other pilots shall be approved by the gover- 
 nor and council. 
 
 Sec. 20. Whenever any surety upon the bond of any pilot shall desire 
 to be discharged from his liability thereon, as provided in the ninth section 
 of chapter fifty-three of the General Statutes, notice of the same shall be 
 given to the commissioners or to the persons or society hereby authorized 
 to approve the sureties upon said bond, as the case may be, or if such bond 
 was approved by the governor and council, notice shall be given to the 
 governor and council ; and notice shall also be given in writing by such 
 surety to such pilot, and the same may be served by any constable of any 
 town in which said pilot may be ; and such notice, with the return of such 
 constable thereon, shall be filed with the treasurer of the Commonwealth, 
 and at the end of thirty days from the date of the filing of said notice 
 with the treasurer, the " liability of such surety for any acts of said pilot, 
 after the expiration of said thirty days, shall cease. If any pilot, being so 
 notified, shall fail to furnish a new bond before the expiration of said thirty 
 days, his commission shall become void. 
 
 Sec. 21. In case of the decease or insolvency of any surety upon the 
 bond of any pilot, said pilot shall give notice of the same to the commis- 
 sioners of pilots for the harbor of Boston, if such pilot is a pilot ^or the 
 harbor of Boston, or to the persons or society who recommended his ap- 
 pointment, or to the governor and council, if such pilot was appointed for 
 any poit or place not specially mentioned in this act, and thereupon a new 
 bond shall be required to be given. 
 
 Sec. 22. Section twelve of chapter fifty-two of the General Statutes is 
 hereby repealed. 
 
 Sec. 23. The board of pilot commissioners is hereby abolished, but re- 
 turns shall be made to such commissioners, by all pilots, of the pilotage fees 
 by them earned or received as provided by section twelve of chapter fifty- 
 two of the General Statutes, up to the day when this act shall take effect, 
 and they shall pay to the said commissioners the amount in said sections 
 provided ; and if any pilot shall fail to make such return and payment, 
 complaint thereof may be made to the governor and council, and if such 
 complaint is found to be true, the commission of such pilot shall be re- 
 voked or suspended at the pleasure of the governor. 
 
 Sec. 24. This act shall take eflfect, so far as concerns the appointment of 
 commissioners and port wardens, upon its passage ; as to all other matters, 
 it shall take effect upon the first day of June next. 
 
 schedule. 
 
 General Regulations for Pilotage in the Commonwealth, of Massachusetts. 
 1. No person not holding a commission as pilot (excepting those actually
 
 732 APPENDIX. 
 
 employed on board of the vessel for the voyage) shall in any case exer- 
 cise the duties of a pilot on board of any vessel within the waters of this 
 Commonwealth, whether said vessel is liable to compulsory pilotage or not, 
 provided a commissioned pilot offers his services, or can be obtained at a 
 reasonable time, under a penalty of not less than twenty, and not exceed- 
 ing fifty dollars for each and every offence. 
 
 2. If at any time the bond of any pilot shall appear to be insufiicient, a 
 new one shall be required. 
 
 3. No vessel shall be liable to pilotage in or out of any port other than 
 her ports of departui-e and destination. But if the aid of a pilot be re- 
 quired, the pilot shall be bound to do the duty and entitled to the regular 
 compensation therefor. 
 
 4. Every vessel inward bound, excepting the vessels provided for in sec- 
 tions 17 and 18, of these general regulations, shall receive the first pilot 
 holding a commission for her port of destination that may offer his ser- 
 vices, and shall be holden to pay such pilot the regular fees for pilotage, 
 whether his services be accepted or not. Outward bound vessels, in all 
 cases, are requested to give a preference to the pilot who may have brought 
 said vessel into port, or to a pilot from the same boat. 
 
 5. It shall be the duty of every pilot to first board vessels (irrespective 
 of size) having signals set for a pilot. When there are no signals to be 
 seen, then the pilots are to offer their services to the first vessel which they 
 can board ; and in case any vessel liable to pilotage should refuse to take a 
 pilot, it shall be the duty of the pilot to inform said vessel that she will be 
 holden to pay the regular fees for pilotage, whether his services are accept- 
 ed or not. 
 
 6. Every pilot shall exhibit his commission, when required, to the master 
 of any vessel of which he may take charge. 
 
 7. No pilot shall take charge of any vessel drawing more water than his 
 commission authorizes, under penalty of suspension or dismission. 
 
 8. Every pilot shall be liable, together with his bondsmen, for all 
 damages that may accrue from his negligence, unskilfulness, or unfaith- 
 fulness. 
 
 9. The period during which winter rates of pilotage shall be allowed 
 shall be uniformly from November 1 to April 30, inclusive ; summer rates 
 from May 1 to October 31, inclusive, for all the ports of the Common- 
 wealth. 
 
 10. The hull and appurtenances of every vessel shall be liable for all 
 legal claims on account of pilotage, either rendered or offered, for the space 
 of sixty days. 
 
 11. All pilots shall anchor vessels carrying alien passengers, or vessels 
 subject to quarantine, at the places assigned for such purpose by the proper
 
 APPENDIX. 733 
 
 authorities, under penalty of suspension or dismission, as well as of the 
 fines by law provided for neglect thereof. 
 
 1 2. All disputes between pilots in relation to their rights, privileges, and 
 duties with each other shall be referred to and settled by three master 
 pilots, to be chosen by the parties for that purpose, to be adjusted and set- 
 tled according to the regulations and the laws. 
 
 13. Whenever any vessel shall be anchored under the regulations for 
 quarantine, or alien passengers, for twelve hours or over, the pilot in charge 
 shall be entitled to twenty-five per cent in addition to the ordinary fees, 
 by afterwards piloting the vessel to her port of destination. 
 
 14. Any pilot who shall be unable to leave a vessel under his charge 
 and be carried to sea, without any negligence or fault of his own, or his 
 associates, shall be entitled to two dollars per day, while necessarily absent 
 from home. 
 
 15. All passenger steam vessels, regulated by the laws of the United 
 States, and carrying a pilot commissioned by United States commissioners, 
 are exempt from the compulsory payment of pilotage. ^ 
 
 16. All national vessels, both inward and outward, shall pay in all 
 ports in the Commonwealth, when they shall employ a pilot, four dol- 
 lars per foot for fifteen feet or less draught of water, and five dollars per 
 foot tor over fifteen feet draught of water. ^ 
 
 17. Every regularly appointed pilot is authorized and directed to take 
 charge of any vessels within the limits of his commission, except fishing 
 vessels (not including whaling vessels), all single-decked vessels of three 
 hundred and fifty tons or under, sailing under a coasting license, and all 
 other vessels bound from a port within this State to another port within this 
 State, unless such vessel shall be in the completion of a voyage from a port 
 or place without the State, and steam vessels as per regulation No. 15. 
 
 18. Vessels of 200 tons burden and under, and liable to pay pilotage, 
 declining the services of a pilot, shall henceforth be liable only for one half 
 of the regular pilotage fees. And also vessels of less than seven feet 
 draught of water shall be exempt from compulsory pilotage in all ports of 
 the Commonwealth. 
 
 [All single-decked vessels of not more than 350 tons, sailing under a 
 coasting license, are exempt from compulsory pilotage, should they decline 
 
 * By an Order of January 3, 1867, Blue Book, 1867, p. 876, § 15 is 
 amended so as to read : " All passenger steam vessels, regulated by the laws of 
 the United States, sailing under a coasting license, and carrying a pilot, com- 
 missioned by United States Commissioners, are exempt from payment of com- 
 pulsory pilotage." 
 
 * By an Order of October 23, 1866, Blue Book, 1867, p. 876, § 16 is 
 amended by inserting after the words " All national vessels," the words " except 
 those ot the United States." See also ante, p. 707.
 
 734 APPENDIX. 
 
 the services of a pilot. Vessels under 200 tons sailing under a register, 
 shall be held to pay half-pilotage only, should they refuse a pilot. But if 
 any vessel requires the services of a pilot, they shall be paid in accordance 
 with the regular rates. Vessels taking steam by the desire of the masters 
 thereof shall pay the full pilotage ; but when steam is taken by direction 
 of the pilot of any vessel, she shall be held to pay 75 per cent of the reg- 
 ula'r pilotage]. 
 
 SPECIAL REGULATIONS. 
 
 Eegulations for the Pilotage of the Harbor of Boston and all Places or Landings accessible to 
 Vessels from Sea included ivithin the Limits of Nahant Rock on the North, and Point Al- 
 derton on the South. 
 
 There shall be not less than six pilot boats constantly employed by the 
 Boston pilots ; each boat shall have a number, which shall be painted in 
 black figures of not less than 48 inches in length, in the mainsail and jib ; 
 the numbers of boats and crews of said boats to be regulated by the com- 
 missioners. 
 
 Each boat shall have a first and second master, who are required to see 
 that all the pilot regulations are strictly conformed to; any non-perform- 
 ance of duty, or insubordination on the part of any pilot, upon the com- 
 plaint of any master, will receive prompt investigation by the commissioners. 
 
 Each one of the pilot boats employed for the harbor of Boston, in alter- 
 nate weeks, and in the order of their numbers, shall cruise on a station at 
 the entrance of Boston harbor, outside of Boston light, and within the lim- 
 its of a line drawn from Minot's Ledge to Nahant Head, and the boat on 
 said station shall at all times show the established pilot boat signal, and 
 shall by day and by night, at all times, remain on said station whenever 
 the weather does not render it impracticable, and be on the lookout for 
 vessels approaching Boston harbor, and shall at all times be furnished with 
 pilots without leaving her station, and shall offer the services of a pilot to 
 all vessels entering said harbor in accordance with the fifth general regu- 
 lation, and she shall receive on board pilots from outward bound vessels, 
 and render to them all the facilities for their return to the city of Boston 
 which is consistent with their duty. The station boat shall not leave said 
 station until relieved by another boat ; and if the boat next in turn for said 
 station shall at any time be unnecessarily absent from said station, the 
 pilots on board of said boat at the time shall collectively be liable to a pen- 
 alty not exceeding two hundred dollars, the amount and apportionment of 
 which shall be decided by the commissioners, and the pilot or pilots so 
 offending shall be liable to immediate suspension or dismissal from the pilot 
 service at the discretion of the commissioners ; but in case of accident or 
 casualty rendering it impossible for said boat to be on her station, the fact
 
 APPENDIX. 
 
 735 
 
 shall be immediately reported 'to the commissioners, who may order any 
 other boat to take said station, and remain until relieved, said boat being 
 subject to the same liabilities, after receiving said order, as though it was 
 her regular turn. In case of a want of pilots at any time on board of the 
 station boat to supply the demand of inward bound vessels, pilots, taken on 
 board from outward bound vessels may, with the consent of the master of 
 the station boat, go on board of inward bound vessels ; but no pilot shall 
 board an inward bound vessel except from the boat to which he belongs, 
 without such permission. 
 
 It shall be the duty of every pilot, after having brought a vessel to the 
 inner harbor of Boston, to have such vessel properly moored in the stream, 
 or secured to a wharf (below the bridges), at the option of the master, 
 within twenty-four hours after arrival, weather and tide permitting, without 
 extra charge. 
 
 If any vessel outward bound,' having a pilot on board, should anchor in 
 Nantasket Roads, it shall be the duty of the pilot to remain on board said 
 vessel, if requested by the master, until the next high water, and if de- 
 tained after that time, he shall be entitled to receive three dollars per day 
 for each and every day so detained. 
 
 No pilot shall leave a vessel outward bound, until to the eastward of 
 George's Island, without permission of the master of said vessel. 
 
 Every pilot is required to perform his full share of the duties of an in- 
 ward, as well as outward pilot, unless prevented by sickness, or causes 
 satisfactory to the commissioners. 
 
 Rates of Pilotage Outwai-d, for the Port of Boston. 
 
 From November 1 t 
 
 April 30 
 
 , inclusive. ' 
 
 
 From May 1 to October 31, inclusive. 
 
 7 feet — per foot 
 
 . $ 95 
 
 7 
 
 feet — per foot . . .^0 80 
 
 8 " 
 
 
 . 
 
 
 95 
 
 8 
 
 
 ' 
 
 
 80 
 
 9 « 
 
 
 
 
 
 1 00 
 
 9 
 
 
 
 
 
 
 
 85 
 
 10 « 
 
 
 
 
 
 
 1 00 
 
 10 
 
 
 
 
 
 
 
 
 90 
 
 11 " 
 
 
 
 
 
 
 1 05 
 
 11 
 
 
 
 
 
 
 
 
 95 
 
 12 « 
 
 
 
 
 
 
 1 10 
 
 12 
 
 
 
 
 
 
 
 
 1 00 
 
 13 " 
 
 
 
 
 
 
 1 15 
 
 13 
 
 
 
 
 
 
 
 
 1 05 
 
 14 " 
 
 
 
 
 
 
 1 20 
 
 14 
 
 
 
 
 
 
 
 
 1 10 
 
 15 " 
 
 
 
 
 
 
 1 25 
 
 15 
 
 
 
 
 
 
 
 
 1 15 
 
 16 « 
 
 
 
 
 
 
 1 30 
 
 16 
 
 
 
 
 
 
 
 
 1 20 
 
 17 " 
 
 
 
 
 
 
 1 35 
 
 17 
 
 
 
 
 
 
 
 
 1 25 
 
 18 " 
 
 
 
 
 
 
 1 45 
 
 18 
 
 
 
 
 
 
 
 
 1 30 
 
 19 « 
 
 
 
 
 
 
 1 50 
 
 19 
 
 
 
 
 
 
 
 
 1 35 
 
 20 " 
 
 
 
 
 
 
 1 60 
 
 20 
 
 
 
 
 
 
 
 
 1 50 
 
 21 « 
 
 
 
 
 
 
 2 00 
 
 21 
 
 
 
 
 
 
 
 
 1 75 
 
 22 « 
 
 
 
 
 
 
 2 50 
 
 22 
 
 
 
 
 
 
 
 
 2 00 
 
 23 " 
 
 
 
 
 
 
 3 00 
 
 23 
 
 
 
 
 
 
 
 
 2 50 
 
 24 " 
 
 
 
 
 
 
 4 25 
 
 24 
 
 
 
 
 
 
 
 
 3 50 
 
 25 " 
 
 
 
 
 
 
 5 00 
 
 25 
 
 
 
 
 
 
 
 
 4 00 
 
 All national vessels of 15 feet or less draught of water $ 4 per foot.^ 
 " « « over 15 feet « « $ 5 " 
 
 ' See ante, p. 707.
 
 736 
 
 APPENDIX. 
 
 Rates of Pilotage Inward, for the Port of Boston. 
 
 From May 1 to October 31, inclusive. 
 
 7 feet — per foo 
 
 vember 
 
 1 to April 30, inclusive. 1 
 
 per feet . . . $ 1 50 | 
 
 *' , 
 
 
 1 50 
 
 
 
 
 
 1 65 
 
 
 
 
 
 
 1 60 
 
 
 
 
 
 
 1 75 
 
 
 
 
 
 
 1 80 
 
 
 
 
 
 
 1 85 
 
 
 
 
 
 
 1 90 
 
 
 
 
 
 
 2 00 
 
 
 
 
 
 
 2 10 
 2 20 
 
 
 
 
 
 
 2 50 
 
 2 90 
 
 3 25 
 
 3 80 
 i 20 
 
 4 50 
 
 5 00 
 
 
 
 
 
 
 5 00 
 
 7 feet 
 
 8 " 
 
 9 « 
 
 10 " 
 
 11 " 
 
 12 " 
 
 13 " 
 U « 
 
 15 " 
 
 16 « 
 
 17 " 
 
 18 " 
 
 19 " 
 
 20 « 
 
 21 " 
 
 22 " 
 
 23 " 
 
 24 « 
 
 25 « 
 
 All national vessels of 15 feet or less draught of water, 
 *' " " over 15 feet " " i 
 
 9 " 
 
 
 10 " 
 
 
 11 " 
 
 
 12 « 
 
 
 13 " 
 
 
 14 " 
 
 
 15 " 
 
 
 16 " 
 
 
 17 » 
 
 
 18 " 
 
 
 19 « 
 
 
 20 " 
 
 
 21 " 
 
 
 22 " 
 
 
 23 « 
 
 
 24 " 
 
 
 25 " 
 
 
 20 
 20 
 30 
 35 
 40 
 45 
 50 
 65 
 65 
 75 
 90 
 00 
 10 
 30 
 75 
 00 
 50 
 00 
 50 
 
 per foot.^ 
 
 Any commissioned pilot that shall offer his services to any vessel bound 
 into the harbor of Boston, without or eastward of a line drawn from 
 Manomet Land, Plymouth, to Thacher's Island, Cape Ann, from the first 
 day of November to the thirtieth day of April, inclusive, shall be entitled 
 to receive twenty per cent in addition to the foregoing rates. 
 
 The fees for hauling a vessel from the stream to a wharf (below the 
 bridges) after the expiration of twenty-four hours from arrival shall be 
 four dollars ; and for hauling a vessel from the wharf to the stream, pro- 
 vided the vessel does not proceed to sea within twenty-four hours from the 
 time of anchoring, four dollars. 
 
 If any commissioned pilot offers himself to any inward bound vessel, 
 liable to take a pilot, outside of a line drawn from Harding's Rocks to the 
 Graves and Bass Point, and the master of the vessel should refuse to take 
 such pilot on board, the master or owner of such vessel or either of them 
 shall be liable to such pilot for the regular pilotage, as if his services had 
 been accepted.^ 
 
 ' See ante, p. 707. 
 
 ' The following amendatory Order was passed November 2, 1866 : " By substi- 
 tuting wherever the words occur ' a line drawn from Harding's Rocks to the 
 Graves and Bass Point,' the words ' a line drawn from Point Alderton to Eastern 
 Point, outer Brewster Island, thence to Eastern Point, Green Island, and thence 
 to Bass Point.' " 
 
 This order has not been published in the Blue Book, but we have examined 
 the original on file in the secretary of state's office and find it to be authentic. 
 
 It was duly proclaimed as directed by the 17th section of the act.
 
 APPENDIX. 737 
 
 Not less than three pilot boats shall at all times cruise in Boston Bay 
 outside of the limits prescribed for the station boat. 
 
 Every commissioned pilot for Boston Bay shall he attached to a pilot 
 boat, and no pilot shall remain unattached for more than thirty days, with- 
 out permission from the commissioners. Any pilot neglecting or refusing 
 to join a pilot boat for ten days after being duly notified to join one, unless 
 satisfactory reasons are gfven for non-compliance, shall be liable to suspen- 
 sion, or to have his commission revoked at the option of the commissioners. 
 
 No pilot shall take charge of any vessel of a larger draught of water. 
 than his commission authorizes, nor shall any other person, not having a 
 commission, be put on boai'd of any vessel from either of the pilot boats in 
 the capacity of pilot. But in the event of the master of any vessel taking 
 on board an unauthorized person to assist him in going into port, the per- 
 son so taken shall state the circumstances to the master of said vessel, and 
 keep the usual signal flying for a pilot until within a line from the Hai'd- 
 ing's Rocks to the Graves and Bass Point, and shall give the vessel up to 
 any authorized pilot who may offer himself. 
 
 Any vessel inward bound, requiring the services of a pilot when inside 
 of a line drawn from Boston Light House to Point Alderton in the Light 
 House Channel, or when abreast of or inside of the outer Brewster Island, 
 in Broad Sound, shall be liable only to two thirds of the established rates 
 of [)ilotage, and if outward bound from Nantasket or President Roads, half 
 pilotage rates only. 
 
 BAY PILOTAGE SOUTH SHORE. 
 
 The rates for piloting from west of a line drawn from Saugkonnet Point 
 to Noman's Land, to the ports herein named, shall be as follows, viz. : — 
 Into Tarpaulin Cove, one dollar and fifty cents per foot ; Wood's Hole, 
 Falmouth Port, and Holmes' Hole, one dollar and seventy-five cents per 
 foot. Into Edgartown and Hyannis, two dollars per foot ; and to the bar 
 of Nantucket Harboi', two dollars and twenty-five cents per foot. And 
 into any other ports on the south coast of Barnstable County or on the 
 Vineyard Sound, one dollar and seventy-five cents per foot. 
 
 The outward rates of pilotage from all the above-named ports and from 
 the bar of Nantucket harbor, if taken westward past Gay Head, shall be 
 three fourths of the above ; and the outward and inward rates shall be in- 
 creased by twenty per cent for all piloting done between the first day of 
 November and the thirtieth day of April, inclusive. 
 
 The rates for piloting vessels into any of the above-named ports, and to 
 the bar of Nantucket harbor, from any point east of a line drawn fi-om 
 Saugkonnet Point to Noman's Land, and between said line and a line 
 drawn due south from Tarpaulin Cove lighthouse, shall be twenty-five per 
 
 YOt. II. 47
 
 738 APPENDIX 
 
 cent less than the above-named rates ; and if said pilot is taken east of a 
 line drawn due south from Tarpaulin Cove lighthouse, fifty per cent shall 
 be deducted from said specified rates ; and in case the master then declines 
 taking a pilot, said pilot offering shall be entitled to one-quarter pilotage, 
 agreeably to these regulations ; and if no pilot shall have offered his 
 services before passing a line drawn from the West Chop lighthouse to the 
 Nobska lighthouse, there shall be no obligation oi^ the part of the master 
 or owner to pay pilotage, if the master shall then decline receiving a 
 jjilot. 
 
 The rates of pilotage for vessels coming from the eastward, bound to the 
 aforesaid ports, shall be from east of a line drawn due north from Nantucket 
 Great Point lighthouse to the bar of Nantucket, one dollar and fifty cents 
 per foot of said vessel's draught. Into Edgartown and Hyannis, one dol- 
 lar and seventy-five cents per foot. Into Holmes' Hole, Falmouth Port, 
 and Wood's Hole, two dollars per foot ; and into all other ports on the 
 south coast of Barnstable County or on the Vineyard Sound, one dollar and 
 seventy-five cents per foot ; and from west of said line drawn due north 
 from Great Point lighthouse, twenty five per cent less than the foregoing. 
 The outward rates, when passing to sea to eastward of Nantucket Shoals, 
 shall be three fourths of the inward rates, and both outward and inward 
 rates shall be increased by twenty-five per cent for all pilotage done be- 
 tween the first of November and the thirtieth of April, inclusive. 
 
 Any commissioned pilot for the harbor of Boston, that may be found 
 mating or combining, or in any way interested with any other pilot in the 
 business of pilotage, except with those pilots belonging to the same boat 
 with himself, shall be liable to forfeit his commission. 
 
 The established pilot signal by day is a white and blue flag, white next 
 to the mast ; and in the night a red light. 
 
 In the division of earnings of any pilot boat among the crew, the fol- 
 lowing allowance shall be made to those pilots holding a commission for a 
 limited draught of water. 
 
 For a commission for 10 feet draught of water, one third of a share. 
 " 12 « " one half 
 
 " " 14 " « two thirds " 
 
 " " 16 " " three fourths " 
 
 The pilots of the port of Boston shall have an office, or keep a desk in 
 some counting-room, in some central situation, where all communications 
 may be left for them, and it shall be the duty of the pilots, when in Bos- 
 ton, to call at said office or desk twice a day at least.
 
 APPENDIX. 739 
 
 REGULATIONS FOR THE PILOTAGE 
 
 Of Nantucket Slioah, Vineyard Sound, and Ports bordering theremi, and also for Buzzard's 
 Bay and Harbors bordering on its waters. 
 
 The rates for piloting vessels through the Vineyard Sound over Nan- 
 tucket Shoals into Boston Bay, or to any port of destination eastward 
 thereof, if the pilot be taken westward of a line drawn due south from 
 Tarpaulin Cove lighthouse, or between said line and a line drawn from 
 Noraan's Land to Saugkonnet Point, from the first day of November to 
 the thirtieth day of April, inclusive, shall be for vessels not drawing more 
 than eleven feet of water, three dollars and fifty cents per foot; if drawing 
 more than eleven feet of water, and not more than fourteen feet, four dol- 
 lars per foot ; if drawing more than fourteen feet, four dollars and fifty 
 fifty cents per foot. And from the first day of May to the thirty-first day 
 of October, inclusive, for vessels drawing not more than eleven feet of 
 water, two dollars and fifty cents per foot ; if drawing more than eleven 
 feet, and not more than fourteen feet, three dollars per foot ; if drawing 
 more than fourteen feet, three dollars and fifty cents per foot. And if the 
 pilot be taken west of said line, drawn from Saugkonnet Point to Neman's 
 Land, ten per cent shall be added to the above specified rates ; and if said 
 pilot be taken at any point east of said line, drawn due south from Tarpau- 
 lin Cove lighthouse, ten per cent shall be deducted from said rates ; and 
 if, during the navigation aforesaid, the pilot is detained in any port at the 
 request of the master, commander, or owner of said vessel, and not from 
 stress of weather, he shall be allowed three dollars per day for all such 
 detention ; and in all cases five dollars shall be added to the rates aforesaid, 
 if the vessel shall be taken to a port of destination east of Cape Ann, and 
 not eastward of Portsmouth ; and if the port of destination be Portsmouth, 
 or eastward thereof, ten dollars shall be added to said rates : Provided, how- 
 ever, that any other rates may be agreed upon, by written contract between 
 the master, commander, or owner of any vessel to be piloted and the pilot 
 taking charge of the vessel. 
 
 The rates of pilotage from one port to another on the Vineyard Sound, 
 including the south coast of Barnstable County, and from the said ports to 
 the bar of Nantucket harbor, and vice versa, shall be uniformly one dollar 
 and twenty-five cents per foot, and twenty-five per cent additional for all 
 pilotage done between the first day of November and the thirtieth day of 
 April, inclusive. And for pilotage inward or outward over the bar of Nan- 
 tucket harbor only, at all seasons of the year, one dollar per foot. 
 
 Any person holding a commission as pilot for Nantucket Shoals is au- 
 thorized to pilot vessels from any part of the Vineyard Sound, Nantucket 
 Shoals, and ports bordering on the waters of the same, to the harbor pilots'
 
 740 APPENDIX. 
 
 limits of any port in Buzzard's Bay or ports west of said bay, at the fol- 
 lowing rates of pilotage : From any point east of a line drawn due north 
 from Cape Poge, at two dollars per foot of such vessel's draught, and if 
 taken westward of said line, drawn due north from Cape Poge, one dollar and 
 fifty cents per foot ; and if no port pilot offers his services, with the consent 
 of the master, they may proceed with said vessel to her destination, and 
 claim the whole amount of pilotage : Provided, however, that no vessel 
 passing through the waters of the Vineyard Sound, or over the Nantucket 
 Shoals to ports beyond them, shall be holden to pay compulsory pilotage. 
 But in no case shall an unauthorized pilot take charge of any vessel when 
 a commissioned pilot can be obtained at a proper time. Pilots holding 
 commissions for Vineyard Sound and Nantucket Shoals, who may have 
 piloted a vessel over said shoals, whose destination is a port in Barnstable 
 or Boston Bay, or eastward thereof, on arrival at the port of her destina- 
 tion, and no harbor pilot offering his services, may, with the consent of the 
 master (but not otherwise), pilot such vessel into her port of destination, 
 and receive the regular port pilot fees therefor. 
 
 NEW BEDFORD AND PAIRHAVEN. ^ 
 
 Pilots especially commissioned for the purpose shall be authorized to 
 pilot vessels from sea, which are bound into the ports of New Bedford and 
 Fairhaven to abreast of Clark's Point lighthouse and to the port pilot 
 limits of other ports in Buzzard's Bay (or westward thereof), and if no 
 port pilot offers his services, they may, with the consent of the master or 
 owner, proceed with such vessel to her port of destination, and claim the 
 full amount of pilotage. 
 
 The rates of pilotage from sea from vessels bound into the ports of New 
 Bedford and Fairhaven to abreast of Clark's Point lighthouse, shall be one 
 dollar and ninety cents per foot, and from abreast of Clark's Point light- 
 house to the inner harbors of New Bedford and Fairhaven, thirty-five cents 
 per foot, and twenty per cent additional to the sea or bay pilotage, from 
 the first day of November to the thirtieth day of April, when a pilot offers 
 
 * May 12, 1864, the following order was passed : " That for the period of one 
 year from date the rates for pilotage, as provided in Chapter 176 of the Acts of 
 1862, be so amended that the pilotage from the ports of New Bedford and Fair- 
 haven to Clark's Point lighthouse, both inward and outward, shall be fifty cents 
 per foot, instead of thirty-five cents, as is now provided, and that the pilotage 
 from the sea inward to abreast of Clark's Point lighthouse shall be two dollars 
 and twenty-five cents per foot instead of one dollar and ninety cents, as is now 
 provided." In the Blue Book for 1867, p. 876, the date of this order is given 
 incorrectly, as we find by examination of the original on file in the Secretary of 
 State's office.
 
 APPENDIX. 741 
 
 his services or is taken west of a line drawn from Saugkonnet Point, to 
 the south point of Noman's Land. 
 
 The outward rates of pilotage from the ports of New Bedford and Fair- 
 haven to abreast of Clark's Point lighthouse shall be thirty-five cents per 
 foot, from abreast Clark's Point lighthouse to sea, one dollar and fifty 
 cents per foot. 
 
 Vessels bound into other ports (than New Bedford and Fairhaven) in 
 Buzzard's Bay, and ports west of said bay, are exempt from paying com- 
 pulsory bay pilotage, when coming from sea, from westward to the port 
 pilot limits of the several ports ; but if a pilot is employed, he shall be en- 
 titled to receive two dollars per foot, and if no port pilot offers his services, 
 he may, with the consent of the master or owner, conduct said vessel to 
 the port of her destination and claim the whole amount of pilotage. 
 
 The rates of port or hai'bor pilotage for all the difierent ports bordering 
 on Buzzard's Bay, and to the westward thereof, excepting New Bedford 
 and Fairhaven, shall be for vessels inward bound drawing less than 
 twelve feet of water, one dollar per foot ; for those drawing from twelve to 
 fifteen feet of water inclusive, one dollar and thirty cents per foot ; for those 
 drawing more than fifteen, and not more than eighteen feet of water, two 
 dollars per foot ; and for those drawing over eighteen feet of water, two 
 dollars and fifty cents per foot ; and the rates of pilotage for vessels out- 
 ward bound from said ports shall be three quarters of said inward rates, 
 and both outward and inward rates shall be increased by twenty per cent 
 for all pilotage done between the first day of November and the thirtieth 
 day of April, inclusive. 
 
 REGULATIONS AND FEES OP PILOTAGE 
 
 Applicable to the following Harbors, viz- : Provincetown, Plymouth, Newburijport, Gloucester, 
 Rockport, Lane's Cove, Annisquam, Salem and Beverly, Marblehead, Taunton River, 
 Merrimack River and Harbors, Dorchester and Neponset, Hingham, Weymouth and Quin- 
 cy, Lynn, Mystic and Charles Rivers. 
 
 Provincetown. — There shall be commissioned from the port of Prov- 
 incetown not more than six persons, who shall be competent as bay and 
 harbor pilots, (and who shall keep a decked boat, suitable for the purpose, 
 not less than fifty tons),^ and shall cruise in all seasons, for the purpose of 
 taking vessels into Provincetown or Cape Cod harbor. Said pilots shall 
 also be entitled to take vessels, when outside the limits of the line hei-ein- 
 after defined, to or within said limits, or until spoken by a Boston pilot. Ves- 
 sels bound into the port of Boston, and liable to pay pilotage, will take such 
 pilots, when first spoken by them, and said pilots shall have authority to pilot 
 any such vessels until spoken by a Boston pilot, when the vessel shall be given 
 
 1 Repealed, Act of 1868, c. 180.
 
 742 APPENDIX. 
 
 up to the first pilot commissioned for the port of Boston who may hail her ; 
 but the Cape pilot slmll continue on board until relieved by a Boston pilot, 
 to whom the vessel shall be given up ; and the pilotage of such vessel shall 
 be divided between the two pilots, 'pro rata, in proportion to the distance 
 each may have charge of her, after passing a line drawn from Plymouth 
 Lights to Thacher's Island, Cape Ann, in which event distance-money shall 
 be wholly for the benefit of the Cape pilots, — otherwise for the Boston 
 pilots ; but the compensation of the first pilot shall in no case be less than 
 five dollars, which amount shall be deducted from the regular pilotage, so 
 that in no instance shall there be any addition to the usual rates of pilotage 
 in consequence of taking such Cape pilots. 
 
 The limits outside of which such Cape Cod or Provincetown pilots may 
 take a vessel bound into Boston shall be a line drawn northeast from the 
 Gurnet or Plymouth Lights ; but all commissioned pilots for the port of 
 Boston shall have the privilege of cruising outside of said line, as heretofore. 
 
 Vessels coming by Cape Cod and bound for the ports of Salem, Beverly, 
 or Marblehead, who may desire the services of a Cape pilot, may take 
 such pilot as may be competent, to the several ports or pilots, under the 
 same restrictions as are provided for vessels bound to Boston, as above. 
 
 The rates of pilotage for all vessels liable to pay pilotage bound into 
 the harbor of Provincetown, if taken south of a line drawn due west from 
 Race Point lighthouse, or between that and a line drawn due south from 
 Wood End Bar, shall be for vessels drawing less than twelve feet of water, 
 one dollar per foot ; for those drawing from twelve to fifteen feet of water, 
 inclusive, one dollar and thirty cents per foot ; for those drawing more 
 than fifteen feet, and not more than eighteen feet of water, two dollai's per 
 foot ; for those drawing more than eigliteen feet, and not more than twenty- 
 one feet of water, two dollars and fifty cents per 'foot ; for those drawing 
 more than twenty-one feet, and not more than twenty-five feet of water, 
 three dollars and fifty cents per foot, and no more. But no vessel shall be 
 liable to pay compulsory pilotage if the services of a pilot are refused 
 after passing a line drawn due south from Wood End Bar. And the out- 
 ward rates of pilotage shall be three fourths the amount of said inward rates. 
 
 Plymouth. — The rates of pilotage for vessels liable to pay pilotage 
 bound into the harbor of Plymouth shall be one dollar per foot. Vessels 
 arriving inside of the Gurnet, and no pilot previously offering his services, 
 are exempt from compulsory pilotage, if a pilot's services are then refused. 
 Rate of pilotage outward, seventy-five cents per foot. 
 
 NewhuTTjport. — The rates of pilotage for vessels liable to pay pilotage 
 bound into or out of the harbor of Newburyport shall be, for outward 
 bound vessels, from seven to twelve feet draught of water, sixty-five cents 
 per foot ; from twelve to fifteen feet, inclusive, eighty-five cents per foot ;
 
 APPENDIX. 743 
 
 upwards of fifteen feet, one dollar and five cents per foot. The summer 
 rates of pilotage for inward bound vessels, drawing from seven to under 
 twelve feet, ninety-five cents per foot ; from twelve to fifteen feet, inclusive, 
 one dollar and twenty-five cents per foot ; over fifteen feet, one dollar and 
 sixty cents per foot. The winter rates of pilotage for inward bound ves- 
 sels, drawing from seven to twelve feet of water, one dollar and twenty- 
 five cents per foot ; from twelve to fifteen feet, inclusive, one dollar and 
 sixty-five cents per foot ; over fifteen feet, two dollars and ten cents 
 per foot. 
 
 The district limits of "the port of Newburyport shall be, from Chebacco 
 Bar, on the south, to the Isle of Shoals, on the north. Vessels not spoken 
 until within the bar shall pay only half pilotage ; if not spoken until with- 
 in the Black Rocks, shall pay no compulsory pilotage. 
 
 The pilots of Newburyport will be required to keep one or more good 
 decked boats, and one boat shall be upon the cruising-ground at all times, 
 when the weather will permit. • 
 
 Rochport, Lane^s Cove, and Annisquam. — The rates of pilotage shall be, 
 for vessels under twelve feet draught of water, seventy-five cents per foot ; 
 of twelve to fifteen feet, inclusive, one dollar per foot ; over fifteen feet, 
 one dollar and fifty cents per foot. 
 
 The inward and outward rates shall be same. 
 
 Gloucester. — The rates of pilotage for vessels liable to pay pilotage 
 bound into the harbor of Gloucester shall be, for vessels drawing less than 
 twelve feet of water, one dollar per foot ; for those drawing from twelve to 
 fifteen feet of water, inclusive, one dollar and thirty cents per foot ; for 
 those drawing more than fifteen feet, and not more than eighteen feet of 
 water, two dollars per foot ; for those drawing more than eighteen feet, and 
 not more than twenty-one feet of water, two dollars and fift}' cents per foot ; 
 for those drawing more tlian twenty-one feet, and not more than twenty- 
 five feet of water, three dollars and fifty cents per foot, and no more. The 
 harbor line shall be a line drawn from Norman's Woe to Dog Bar Buoy, 
 off Eastern Point, within which line there shall be no compulsory inward 
 pilotage. The pilots of Gloucester will be required to keep at least one 
 decked boat, and said boat or boats shall be upon the cruising-ground at all 
 times when the weather will permit. The pilotage on vessels outward 
 bound shall be three fourths of the inward rates. 
 
 Salem and Beverly. — The pilots for the ports of Salem and Beverly, 
 shall keep one or more good decked boats, and shall cruise for the purpose 
 of bringing vessels into said ports, whenever the weather does not render 
 it impracticable. 
 
 The harbor lines of the ports of Salem and Beverly shall be a line run- 
 ning north by east from Half- Way Rock to the northern shore, and a line
 
 744 APPENDIX. 
 
 running northwesterly from Half- Way Rock to Marblehead Fort, within 
 which lines there shall be no compulsory inward pilotage. The rates for 
 pilotage, both for inward and outward bound vessels, shall .be as follows, 
 viz. : For vessels drawng less than nine feet of water, ninety-five cents 
 per foot ; for nine feet and less than eleven feet, one dollar and ten cents 
 per foot ; for eleven feet, and less than thirteen feet, one dollar and thirty 
 cents per foot ; for thirteen feet and less than fifteen feet, one dollar and 
 fifty cents per foot ; for fifteen feet and less than seventeen feet, one dollar 
 and seventy-five cents per foot ; for seventeen feet and upwards, one dol- 
 lar and ninety-five cents per foot. Any Salem and Beverly pilot having 
 brought a vessel in shall have such vessel properly moored in the harbor, 
 or secured at the wharf, at the option of the master, within twelve hours 
 after the arrival of said vessel, if the weather permits, without extra 
 charge ; but, if called upon after the expiration of the twelve hours, to 
 haul any vessel into the wharf, the pilot shall be entitled to receive two 
 dollars for his services, and the same sum for taking a vessel from the 
 wharf into the harbor, if said vessel shall not proceed to sea within twelve 
 hours from the time of her being anchored in the harbor. The signal for 
 the pilot boats for the poi'ts of Salem and Beverly shall be their accustomed 
 signal by day, viz. : a red flag with a white P, and a black ball painted 
 on the upper part of mainsail and jib ; and by night a green light. 
 
 Marhlehead. • — The rates of pilotage for vessels liable to pay pilotage 
 bound into the harbor of Marblehead shall be for vessels drawing from 
 seven to eleven feet of water, sixty-seven cents per foot ; from twelve to 
 fourteen feet, ninety cents per foot ; from fifteen to seventeen feet, one dol- 
 lar and twenty cents per foot ; eighteen feet and upwards, one dollar and 
 sixty cents per foot. 
 
 The harbor limits of Marblehead shall be bounded by a line drawn 
 from the south point of the Neck to Marblehead Rock, thence to Cat 
 Island Rock, and thence westerly to Gerry's Island ; within this line there 
 shall be no compulsory inward pilotage. The outward rates shall be the 
 same as the inward. 
 
 Taunton River. — The pilotage for Taunton River shall not be com- 
 pulsory. When the services of a pilot are required, the rates of pilotage 
 on all vessels piloted from Fall River to Somerset, drawing not over 
 twenty feet of water, two dollars. From Fall River to Digliton, on ves- 
 sels drawing twelve feet of water, seven dollars ; eleven feet, six dollars, 
 and fifty cents ; ten feet, six dollars ; nine feet, five dollars and fifty cents ; 
 eight feet, five dollars ; under eight feet, four dollars. From Somerset to 
 Dighton and Berkley, fifty cents per foot for vessels drawing from eight to 
 twelve f(;ct of water ; under eight feet, three dollars per vessel. The down- 
 ward pilotage from the aforesaid places shall be one half of the upward rates.
 
 APPENDIX. 745 
 
 Merrimack River and Harbors. — The pilotage on the Merrimack 
 River, between Newbiuyport and Haverhill shall not be compulsory. 
 When the services of a pilot are required, the rates of pilotage authorized 
 by the commissioners shall be, between Newburyport and ship-yards at 
 Bellville, thirty cents per foot ; between Newburyport and Salisbury, fifty 
 cents per foot ; between Newburyport and Amesbury, sixty-two and one half 
 cents per foot; between Newburyport and Groveland, eighty-seven and one 
 half cents per foot ; between Newburyport and Havei'hill, one dollar per foot. 
 
 Dorchester and Neponset. — The pilotage for the several landing-places 
 in the towns of Dorchester and Neponset shall not be compulsory. When 
 the services of a pilot are required, and are offered outside of a line drawn 
 from (\\e wharf on Thompson's Island in a direct line to Dorchester Point, 
 the rates of pilotage authorized by the commissioners shall be, viz. : to 
 Commercial Point, thirty cents per foot ; to Neponset, forty cents per foot. 
 The inward and outward rates to be the same. 
 
 Hinghcmi, Weymouth, and Qnincy. — The pilotage for the several land- 
 ing-places in the towns of Hingham, Weymouth, and Quincy, below the 
 bridges, shall not be compulsory. When the services of a pilot are re- 
 quired and are offered outside of a line drawn from Nantasket Point to the 
 east point of Pettick's Island, from thence a line drawn to the northwest 
 point of said Pettick's Island, from thence in a line to Sunk Island, from 
 Sunk Island in a direct line to Hangman's Island. The rates of pilotage 
 authorized by the commissioners shall be, viz. : To Hingham, fifty cents per 
 foot, for vessels drawing ten feet and under ; eleven and twelve feet, sixty 
 cents per foot. To Weymouth, Braintree, or Quincy Point, ten feet and 
 under, fifty cents per foot ; eleven and twelve feet, sixty cents per foot ; 
 thirteen feet, seventy-five cents per foot ; fourteen feet one dollar per foot ; 
 fifteen feet, one dollar and ten cents per foot ; sixteen feet, one dollar and 
 twenty-five cents per foot ; to East Weymouth, ten feet and under, sixty 
 cents per foot ; eleven feet, sixty-five cents per foot ; twelve feet, seventy 
 cents per foot ; thii'teen feet, eighty-five cents per foot ; fourteen feet, one 
 dollar per foot ; over fourteen feet, one dollar and twenty-five cents per 
 foot. The inward and outward rates to be the same. 
 
 Lynn. — The pilotage for the harbor of Lynn shall not be compulsory. 
 When the services of a pilot are required, the rates of pilotage shall be, 
 viz. : To Lynn, on vessels drawing twelve feet or less of water, three dollars 
 per vessel ; to West Lynn, three dollars per vessel. Up the river through 
 bridges, four dollars per vessel. The outward rates shall be one half of 
 said inward rates. 
 
 Mystic River. — The pilotage for Mystic River shall not be compulsory. 
 When the services of a pilot are required, the rates of pilotage shall be, 
 viz. : From outside of Chelsea Bridi>;e in Boston Harbor to Charlestown
 
 746 APPENDIX. 
 
 Neck or Maiden Bridge, thirty-five cents per foot ; to South Maiden, fifty- 
 cents per foot ; from Maiden Bridge or either of the railroad bridges to 
 Medford, Maiden, or Edgevvorth, five dollars per vessel. The upward and 
 downward rates to be the same. 
 
 Charles River. — The pilotage on the Charles River, from outside of 
 Charlestown Bridge, in Boston harbor, shall not be compulsory when the 
 services of a pilot are required. The rates of pilotage shall be : — 
 
 From outside of Charlestown Bridge, in Boston Harbor, to Fitchbicrg Rail- 
 road Wharf, viz. : 
 
 10 feet and under, ..... 25 cents per foot. 
 
 11 to 13 feet, 30 " " 
 
 14 feet and upwards, . . . . . 35 " " 
 
 To Landings within State Prison Bridge. 
 11 feet and under, . . . . .40 cents per foot. 
 
 To Craigie's Bridge, including Lowell Railroad Wharves. 
 
 10 feet and under, ..... 35 cents per foot. 
 
 11 to 13 feet, 40 " " 
 
 14 feet and upwards, . . . . . 45 " " 
 
 To Landings between Craigie's and Cambridge Bridges, including all Land- 
 ings in Cambridgeport. 
 11 feet and under, 40 cents per foot. 
 
 From Cambridge Bridge to Willard's Bridge, in addition to the above rates. 
 
 11 feet and under, 60 cents per foot. 
 
 From Cambridge Bridge to Brighton Corner. 
 
 9 feet and under, $ 6 per vessel. 
 
 10 and 11 feet, 75 cents per foot. 
 
 12 feet, • 80 " " 
 
 13 feet, . . . • . . ' , 85 " " 
 The upward and downward rates to be the same. 
 
 Regulations for Station Boats in Boston Harbor. 
 
 Pilot Boat, No. 1, will take her station as prescribed by the regulations 
 for the port of Boston, and remain on said station one week, when Pilot 
 Boat, No. 2, will take said station. And each successive Monday, said 
 station will be taken by the pilot boats, in the order of their numbers. 
 
 Approved, April 30, 1862.
 
 APPENDIX. * 747 
 
 RULES OF PRACTICE 
 
 OF THE COURTS OP THE UNITED STATES IN CAUSES OF ADMIRALTT 
 AND MARITIME JURISDICTION, ON THE INSTANCE SIDE OF THE COURT, 
 IN PURSUANCE OF THE ACT OF 23d OF AUGUST, 1842, C. 188.^ 
 
 I. 
 
 No mesne process shall issue from the district court in any civil cause 
 of admiralty and maritime jurisdiction until the libel or libel of informa- 
 tion shall be filed in the clerk's ofRce, from which such process is to issue. 
 All process shall be served by the marshal or by his deputy, or where he 
 or they are interested, by some discreet and disinterested person appointed 
 by the court. 
 
 II. 
 
 In suits in personam, the mesne process may be by a simple warrant of 
 arrest of the person of the defendant in the nature of a capias, or by a war- 
 rant of arrest of the person of the defendant with a clause therein, that if 
 he cannot be found, to attach his goods and chattels to the amount sued for, 
 or if such property cannot be found, to attach his credits and effects to the 
 amount sued for in the hands of the garnishees named therein ; or, by a 
 simple monition in the nature of a summons to appear and answer to the 
 suit, as the libellant shall, in his libel or information, pray for, or elect. 
 
 III. 
 
 In all suits iii personam, — where a simple warrant of arrest issues and 
 is executed, the marshal may take bail with sufficient sureties from the 
 party ari-ested by bond or stipulation, upon conditioiT that he will appear in 
 the suit and abide by all orders of the court, interlocutory or final, in the 
 cause, and pay the money awarded by the final decree rendered there in 
 the court to which the process is returnable or in any appellate court. And 
 upon such bond or stipulation, summary process of execution may and shall 
 be issued against the principal and sureties by the court to which such pro- 
 cess is returnable to enforce the final decree so rendered, or upon appeal, 
 by the appellate court. 
 
 IV. 
 
 In all suits in personam, where goods and chattels, or credits and eflfects 
 ^ These rules are printed in 3 Howard.
 
 748 <*■ APPENDIX. 
 
 are attached under such warrant authorizing the same, the attachment may 
 be dissolved by order of the court to which the same warrant is returnable, 
 upon the defendant, whose projjerty is so attached, giving a bond or stipu- 
 lation with sufficient sureties to abide by all orders, interlocutory or final, 
 of the court, and pay the amount awarded by the final decree rendered in 
 the court to which the process is returnable, or in any appellate court ; 
 and upon such bond or stipulation summary process of execution shall and 
 may be issued against the principal and sureties by the court to which 
 such warrant is returnable, to enforce the final decree so rendered, or upon 
 appeal, by the appellate court. 
 
 V. 
 
 Bonds or stipulations in admiralty suits may be given and taken in open 
 court, or at chambers, or before any commissioner of "the court, who is 
 authorized by the court to take affidavits of bail and depositions in cases 
 pending before the court. 
 
 VI. 
 
 In all suits in personam, where bail is taken, the court may, upon mo- 
 tion for due cause shown, reduce the amount of the sum contained in the 
 bond or stipulation therefor ; and in all cases where a bond or stipulation 
 is taken as bail, or upon dissolving an attachment of property as aforesaid, 
 if either of the sureties shall become insolvent pending the suit, new sure- 
 ties may be required by the order of the court to be given, upon motion 
 and due proof thereof. 
 
 VII. 
 
 In suits in personam, no wan*ant of arrest, either of the person or prop- 
 erty of the defendant, shall issue for a sum exceeding five hundred dollars, 
 unless by the special order of the court upon affidavit or other proper proof 
 showing the propriety thereof. 
 
 VIII. 
 
 In all suits in rem against a ship, her tackle, sails, apparel, furniture, 
 boats, or other appurtenances, if such tackle, sails, apparel, furniture, 
 boats, or other appurtenances are in the possession or custody of any third 
 person, the court may, after a due monition to such third person, and a 
 hearing of the cause, if any, why the same should not be delivered over, 
 award and decree that the same be delivered into the custody of the mar- 
 shal or other proper officer, if upon the hearing the same is required by 
 law and justice.
 
 APPENDIX. 749 
 
 IX. 
 
 In all cases of seizure and in other suits and proceedings in rem, the 
 process, unless otherwise provided for by statute, shall be by a warrant of 
 arrest of the ship, goods, or other thing to be arrested, and the marshal 
 shall thereupon arrest and take the ship, goods, or other thing into his pos- 
 session for safe custody ; and shall cause public notice thereof and of the 
 time assigned for the return of such process and the hearing of the cause, 
 to be given in such newspaper within the district as the district court shall 
 order, and if there is no newspaper published therein, then in such other 
 public places in the district as the court shall dii'ect. 
 
 X. 
 
 In all cases where any goods or other things are arrested, if the same 
 are perishable, or are liable to deterioration, decay, or injury by being 
 detained in custody, pending the suit, the court may, upon the application 
 of either party, in its discretion order the same, or so much thereof to be 
 sold as shall be perishable or liable to depreciation, decay, or injury, and 
 the proceeds or so much thereof as shall be a full security to satisfy in 
 decree to be brought into court, to abide the event of the suit ; or the 
 court may, upon the application of the claimant, order a delivery thereof 
 to him upon a due appraisement to be had under its direction, either upon 
 the claimant's depositing in court so much money as the court shall order, 
 or upon his giving a stipulation with the sureties in such sum as the court 
 shall direct to abide by and pay the money awarded by the final decree 
 rendered by the court or the appellate court, if any appeal intervenes, as 
 the one or the other course shall be ordered by the court, 
 
 XL 
 
 In like manner where any ship shall be arrested, the same may, upon 
 the application of the claimant, be delivered to him upon a due appraise- 
 ment to be had under the direction of the court, upon the claimant's de- 
 positing in court so much money as the court shall order, or upon his 
 giving a stipulation with sureties as aforesaid ; and if the claimant shall 
 decline any such application, then the court may in its discretion, upon the 
 application of either party, upon due cause shown, order a sale of such 
 ship, and the proceeds thereof to be brought into court, or otherwise dis- 
 posed of as it may be deemed most for the benefit of all concerned, 
 
 XII, 
 
 In all suits by material men for supplies or repairs, or other necessa- 
 ries for a foreign ship or for a ship in a foreign port, the libellant may
 
 750 APPENDIX. 
 
 proceed against the ship and freight in rem, or against the master or 
 owner alone in personam. And the like proceeding in personam, but not 
 in rem, shall apply to cases of domestic ships, for supplies, repairs, or other 
 necessaries.^ 
 
 XIII. 
 
 In all suits for mariners' wages, the libellant may proceed against the 
 ship, freight, and master, or against the ship and freight, or against the 
 owner or master alone in personam. 
 
 XIV. 
 
 In all suits for pilotage, the libellant may proceed against the ship and 
 master, or against the ship, or against the owner alone, or the master 
 alone, in personam. 
 
 XV. 
 
 In all suits for damage by collision the libellant may proceed against 
 the ship and master, or against the ship alone, or against the master or the 
 owner alone, in personam.. 
 
 XVI. 
 
 In all suits for an assault or beating on the high seas or elsewhere 
 within the admiralty and maritime jurisdiction, the suit shall be in per- 
 sonam only. 
 
 XVII. 
 
 In all suits against the ship or freight founded upon a mere maritime 
 hypothecation, either express or implied, of the master for moneys taken 
 up in a foreign port for supplies or repairs or other necessaries for the 
 voyage, without any claim of marine interest, the libellant may proceed 
 either in rem or against the master or the owner alone in personam. 
 
 XVIII. 
 
 In all suits on bottomry bonds, properly so called, the suit shall be in 
 
 ' This is the new Twelfth Rule, which went into effect May 1, 1859. 21 How. 
 iv. The old rule was as follows : " In all suits by material men for supplies "or 
 repairs or other necessaries for a foreign ship or for a ship in a foreign port, the 
 libellant may proceed against the ship and freight in rem, or against the master 
 or the owner alone in personam. And the like proceeding in rem shall apply 
 to cases of domestic ships, where by the local law a lien is given to material 
 men for supplies, repairs, or other necessaries."
 
 APPENDIX. 751 
 
 rem only against the property hypothecated, or the proceeds of the prop- 
 erty in whosesoever hands the same may be found, unless the master has 
 without authority given the bottomry bond, or by his fraud or misconduct 
 has avoided the same, or has subtracted the property, or unless the owner 
 has by his own misconduct or wrong lost or subtracted the property, in 
 which latter cases the suit may be in personam against the wrong-doer. 
 
 XIX. 
 
 In all suits for salvage, the suit may be in rem against the property 
 saved, or the proceeds thereof, or in personam against the party at whose 
 request and for whose benefit the salvage service has been performed, 
 
 XX. 
 
 In all petitory or possessory suits between part-owners or adverse pro- 
 prietors, or by the owners of a ship or the majority thereof against the 
 master of a ship for the ascertainment of the title and delivery of the pos- 
 session, or for the possession only, or by one or more part-owners against 
 the others to obtain security for the return of the ship from any voyage 
 undertaken without their consent, or by one or more part-owners against 
 the others to obtain possession of the ship for any voyage upon giving 
 security for the safe return thereof, the process shall be by an arrest of the 
 ship and by a monition to the adverse party or parties to appear and make 
 answer to the suit. 
 
 XXI. 
 
 March 24, 1862. "Ordered that the 21st Rule in Admiralty be abolished, 
 and that the following be substituted in its place : — 
 
 " In all cases of a final decree for the payment of money, the libellant 
 shall have a writ of execution in the nature of a fieri facias, commanding 
 the marshal or his deputy to levy and collect the amount thereof out of 
 the goods and chattels, lands and tenements, or other real estate of the 
 defendant or stipulators." ^ 
 
 ^ 1 Black, 6. The original rule was as follows : — 
 
 In all cases where the decree is for the payment of money, the libellant may, 
 at his election, have an attachment to compel the defendant to perform the 
 decree, or a writ of execution in the nature of a capias and of a fieri facias, com- 
 manding the marshal or his deputy to levy the amount thereof of the goods and 
 chattels of the defendant, and for want thereof to arrest his body to answer the 
 exigency of the execution. In all other cases the decree may be enforced by an 
 attachment to compel the defendant to perform the decree ; and upon such attach- 
 ment the defendant may be arrested and committed to prison until he performs 
 the decree, or is otherwise discharged by law, or by the order of the court.
 
 752 APPENDIX. 
 
 XXII. 
 
 All informations and libels of information upon seizures for any breach 
 of the revenue or navigation or other laws of the United States, shall state 
 the place of seizure, whether it be on land, or on the high seas, or on 
 navigable waters within the admiralty and maritime jurisdiction of the 
 United States ; and the district within which the property is brought and 
 where it then is. The information or libel of information shall also pro- 
 pound in distinct articles the matters relied on as grounds or causes of 
 forfeiture, and aver the same to be contrary to the form of the statute or 
 statutes of the United States in such case provided, as the case may re- 
 quire, and shall conclude with a prayer of due process to enforce the for- 
 feiture and to give notice to all persons concerned in interest to appear 
 and show cause at the return-day of the process why the forfeiture should 
 not be decreed. 
 
 XXIII. 
 
 All libels in instance causes, civil or maritime, shall state the nature of 
 the cause, as for example, that it is a cause civil and maritime, of contract, 
 or of tort or damage, or of salvage, or of possession, or otherwise, as the 
 case may be, and if the libel be in rem, that the property is within the dis- 
 trict; and if in' personam, the names and occupations and places of resi- 
 dence of the parties. The libel shall also propound and articulale in 
 distinct articles the various allegation of facts, upon which the libellant 
 relies in support of his suit, so that the defendant may be enabled to 
 answer distinctly and separately the several matters contained in each 
 article ; and it shall conclude with a prayer of the process to enforce his 
 rights in rem, or in personam (as the case may require), and for such 
 relief and redress as the court is competent to give in the premises. And 
 the libellant may further require the defendant to answer on oath all inter- 
 rogatories propounded by him touching all and singular the allegations in 
 the libel at the close or conclusion thereof. 
 
 XXIV. 
 
 In all informations and libels in causes of admiralty and maritime juris- 
 diction, amendments in matters of form may be made at any time on 
 motion to the court as of course. And new counts may be filed and 
 amendments in matters of substance may be made upon motion at any 
 time before the final decree upon such terms as the court shall impose. 
 And where any defect of form is set down by the defendant upon special 
 exceptions, and is allowed, the court may, in granting leave to amend, 
 impose terms upon the libellant.
 
 APPENDIX. 753 
 
 XXV. 
 
 In all cases of libels in personam, the court may in its discretion, upon 
 the appearance of the defendant, where no bail has been taken and no 
 attachment of property has been made to answer the exigency of the suit, 
 require the defendant to give a stipulation with sureties in such sum as 
 the court shall direct, to pay all costs and expenses, which shall be 
 awarded against him in the suit upon the final adjudication thereof, or by 
 any interlocutory order in the process of the suit. 
 
 XXVI. 
 
 In suits in rem, the party claiming the property shall verify his claim 
 on oath or solemn affirmation, stating that the claimant, by whom or on 
 whose behalf the claim is made, is the true and bond Jide owner, and that 
 no other person is the owner thereof. And where the claim is put in by 
 an agent or consignee, he shall also make oath, that he is duly authorized 
 thereto by the owner, or if the property be at the time of the arrest in the 
 possession of the master of a ship, that he is the lawful bailee thereof for 
 the owner. And upon putting in such claim, the claimant shall file a 
 stipulation with sureties in such sum as the court shall direct, for the pay- 
 ment of all costs and expenses which shall be awarded against him by the 
 final decree of the court, or upon an appeal, by the appellate court. 
 
 XXVII. 
 
 In all libels in causes of civil and maritime jurisdiction, whether in rem 
 or in personam, the answer of the defendant to the allegations in the libel 
 shall be on oath or solemn affirmation ; ^ and the answer shall be full and 
 explicit and distinct to each separate article and separate allegation in the 
 libel, in the same order as numbered in the libel ; and shall also answer 
 in like manner each interrogatory propounded at the close of the libel. 
 
 XXVIII. 
 
 The libellant may except to the sufficiency or fulness or distinctness or 
 relevancy of the answer to the articles and interrogatories in the libel ; 
 and if the court shall adjudge the same exceptions or any of them to be 
 good and valid, the court shall order the defendant forthwith within such 
 time as the court shall direct, to answer the same, and may further order 
 the defendant to pay such costs as the court shall adjudge reasonable. 
 
 ' This does not apply to cases where the sum or value in dispute does not exceed 
 S50, unless the judge of the district court shall, for the purposes of justice, so pre- 
 scribe. See post, p. 758. 
 
 VOL. II. 48
 
 754 APPENDIX. 
 
 XXIX. 
 
 If the defendant shall omit or refuse to make due answer to the libel 
 upon the return-day of the process, or other day assigned by the court, 
 the court shall pi'onounce him to be in contumacy and default, and there- 
 upon the libel shall be adjudged to be taken pro confesso against him, and 
 the court shall proceed to hear the cause ex parte and adjudge therein as 
 to law and justice shall appertain. But the court may in its discretion 
 set aside the default, and upon the application of the defendant, admit 
 him to make answer to the libel at any time before the final hearing, and 
 decree, upon his payment of all the costs of the suit up to the time of 
 granting leave therefor. 
 
 XXX. 
 
 In all cases where the defendant answers, but does not answer fully 
 and explicitly and distinctly to all the matters in any article of the libel, 
 and exception is taken thereto by the libellant, and the exception is 
 allowed, the court may, by attachment, compel tlie defendant to make 
 further answer thereto, or may direct the matter of the exception to be 
 taken pro confesso against the defendant to the full purport and effect of 
 the article to which it purports to answer, and as if no answer had been 
 put in thereto. 
 
 XXXI. 
 
 The defendant may object by his answer to answer any allegation or 
 interrogatory contained in the libel which will expose him to any prose- 
 cution or punishment for a crime, or for any penalty or any forfeiture of 
 his property for any penal offence. 
 
 XXXII. 
 
 The defendant shall have a right to require the personal answer of the 
 libellant upon oath or solemn affirmation to any interrogatories which he 
 may at the close of his answer propound to the libellant, touching any 
 matters charged in the libel, or touching any matter of defence set up in 
 the answer, subject to the like exception as to matters which shall expose 
 the libellant to any prosecution, or punishment, or forfeiture, as is provided 
 in the 31st Rule. In default of due answer by the libellant to such 
 interrogatories, the court may adjudge the libellant to be in default and 
 dismiss the libel, or may compel his answer in the premises by attach- 
 ment, or take the subject-matter of the interrogatory pro confesso in favor 
 of the defendant, as the court in its discretion shall deem most fit to pro- 
 mote public justice.
 
 APPENDIX. 755 
 
 XXXIII. 
 
 Where either the libeUant or the defendant is out of the country, or 
 unable from sickness or other casualty to make an answer to any inter- 
 rogatory on oath or solemn affirmation at the proper time, the court may 
 in its discretion, in furtherance of the due administration of justice dis- 
 pense therewith, or may award a commission to take the answer of the 
 defendant when and as soon as it may be practicable. 
 
 XXXIV. 
 
 If any third person shall intervene in any cause of admiralty and mari- 
 time jurisdiction in rem, for his own interest, and he is entitled, according 
 to the course of admiralty proceedings, to be heard for his own interest 
 therein, he shall propound the matter in suitable allegations, to which if 
 admitted by the court, the other party or parties in the suit may be 
 required by order of the court to make due answer ; and such further 
 proceedings shall be had and decree rendered by the court therein as to 
 law and justice shall appertain. But every such intervener shall be 
 required, upon filing his allegations, to give a stipulation with sureties to 
 abide by the final decree rendered in the cause, and to pay all such costs 
 and expenses and damages as shall be awarded by the court upon the final 
 decree, whether it is rendered in the original or appellate court. 
 
 XXXV. 
 
 Stipulations in admiralty and maritime suits may be taken in open 
 court, or by the proper judge at chambers, or under his order, by any 
 commissioner of the court, who is a standing commissioner of the court, 
 and is now by law authorized to take affidavits of bail, and also depositions 
 in civil causes pending in the courts of the United States. 
 
 XXXVI. 
 
 Exception may be taken to any libel, allegation, or answer for sur- 
 plusage, irrelevancy, impertinence, or scandal, and if upon reference to a 
 master, the exception shall be reported to be so objectionable, and allowed 
 by the court, the matter shall be expunged at the cost and expense of the 
 party in whose libel or answer the same is found. 
 
 XXXVII. 
 
 In cases of foreign attachment, the garnishee shall be required to 
 answer on oath or solemn affirmation, as to the debts, credits, or effects of
 
 756 APPENDIX. 
 
 the defendant in his hands, and to such interrogatories touching the same 
 as may be propounded by the libellant ; and if he shall refuse or neglect 
 so to do, the court may award compulsory process in personam against 
 him. If he admit any debts, credits, or effects, the same shall be held in 
 his hands liable to answer the exigency of the suit. 
 
 xxxvirr. 
 
 In cases of mai-iners' wages, or bottomry, or salvage, or other proceed- 
 ings in rem, where freight, or other proceeds of property are attached to, 
 or are bound by the suit, which are in the hands or possession of any 
 person, the court may, upon due application by petition of the party inter- 
 ested, require the party charged with the possession thereof to appear and 
 show cause why the same should not be brought into court to answer the 
 exigency of the suit ; and if no sufficient cause be shown, the court may 
 order the same to be brought into court to answer the exigency of the 
 suit, and upon failure of the party to comply with the order, may award 
 an attachment or other compulsive process to compel obedience thereto. 
 
 XXXIX. 
 
 If in any admiralty suit, the libellant shall not appear and prosecute his 
 suit according to the course and orders of the court, he shall be deemed 
 in default and contumacy, and the court may, upon the application of the 
 defendant, pronounce the suit to be deserted, and the same may be dis- 
 missed with costs. 
 
 XL. 
 
 The court may in its discretion, upon the motion of the defendant and 
 the payment of costs, rescind the decree in any suit in which on account 
 of his contumacy and default, the matter of the libel shall have been 
 decreed against him, and grant a rehearing thereof, at any time within 
 ten days after the decree has been entered, the defendant submitting to 
 such further orders and terms in the premises as the court may direct. 
 
 XLI. 
 
 All sales of property under any decree in admiralty shall be made by 
 the marshal or his deputy or other proper officer assigned by the court, 
 where the marshal is a party in interest, in pursuance of the orders of 
 the court ; and the proceeds thereof, when sold, shall be forthwith paid 
 into the registry of the court by the officer making the sale, to be disposed 
 of by the court according to law.
 
 APPENDIX. 757 
 
 XLII. 
 
 All moneys paid into the registry of the court shall be deposited in 
 some bank designated by the court, and shall be so deposited in the 
 name of the court, and shall not be drawn out except by a check or 
 checks signed by a judge of the court and countersigned by the clerk, 
 stating on whose account and for whose use it is drawn, and in what suit 
 and out of what fund in particular it is paid. The clerk shall keep a 
 regular book containing a memorandum and copy of all the checks so 
 drawn and the date thereof. 
 
 XLIII. 
 
 Any person having an interest in any proceeds in the registry of the 
 court shall have a right by petition and summary proceeding to inter- 
 vene per interesse suo, for a delivery thereof to him ; and upon due 
 notice to the adverse parties, if any, the court shall and may proceed 
 summarily to hear and decide thereon, and to decree therein according to 
 law and justice ; and if such petition or claim shall be deserted, or upon 
 a hearing be dismissed, the court may in its discretion award costs against 
 the petitioner in favor of the adverse party. 
 
 XLIV. 
 
 In cases where the court shall deem it expedient or necessary for the 
 purposes of justice, the court may refer any matters arising in the prog- 
 ress, of the suit to one or more commissioners to be appointed by the 
 court to hear the parties and make report therein. And such commis 
 sioner or commissioners shall have and possess all the powers in the 
 premises which are usually given to or exercised by masters in chancery 
 in references to them, including the power to administer oaths to and 
 examine the parties and witnesses touching the premises. 
 
 XLV. 
 
 All appeals from the district to the circuit court must be made while 
 the court is sitting, or within such other period as shall be designated by 
 the district court by its general rules, or by an order specially made in the 
 particular suit. 
 
 XLVI. 
 
 In all cases not provided for by the foregoing rules, the district and 
 circuit courts are to regulate the practice of the said courts respectively, 
 in such manner as they shall deem most expedient for the due adminis- 
 tration of justice in suits in admiralty.
 
 758 APPENDIX. 
 
 XLVII. 
 
 These rules shall be in force in all the circuit and district courts of the 
 United States from and after the first day of September next [1845]. 
 
 It is ordered by the court, That the foregoing rules be and they are 
 adopted and promulgated as Rules for the regulation and government of 
 the practice of the circuit courts and district courts of the United States 
 in suits in admiralty on the instance side of the courts. And that the 
 reporter of the court do cause the same to be published in the next volume 
 of his reports ; and that he do cause such additional copies thereof to be 
 published, as he may deem expedient for the due information of the bar 
 and bench in the respective districts and circuits. 
 
 ADDITIONAL ADMIRALTY RULES. 
 
 DECEMBER TERM, 1850. 10 Howard, v. 
 
 Ordered, that the following supplemental rules be added to the rules 
 heretofore adopted by this court for regulating proceedings in admiralty. 
 
 In all suits in personam, where a simple warrant of arrest issues and is 
 executed, bail shall be taken by the marshal and the court in those cases 
 only in which it is required by the laws of the State, where an arrest is 
 made upon similar or analogous process issuing from the State courts. 
 And imprisonment for debt on process issuing out of the admiralty court 
 is abolished in all cases where by the laws of the State in which the court 
 is held imprisonment for debt has been or shall be hereafter abolished upon 
 similar or analogous process issuing from a State court. 
 
 The twenty-seventh rule shall not apply to cases where the sum or 
 value in dispute does not exceed fifty dollars exclusive of costs, unless 
 the district court shall be of opinion that the proceedings prescribed by 
 that rule are necessary for the purposes of justice, in the case before the 
 court. 
 
 All rules and parts of rules heretofore adopted inconsistent with this 
 order are hereby repealed and annulled. 
 
 DECEMBEK TERM, 1851. 13 Howard, vi. 
 
 Ordered, that further proof, taken in a circuit court upon an admiralty 
 appeal, shall be, by deposition, taken before some commissioner appointed 
 by a circuit court, pursuant to the acts of Congress in that behalf, or before
 
 APPENDIX. 759 
 
 some officer authorized to take depositions by the thirtieth section of the 
 act of Congress of the 24th of September, 1 789, upon an oral examination 
 and cross-examination, unless the court in wliich sucli appeal shall be 
 pending, or one of the judges thereof, shall, upon motion allow a commis- 
 sion to issue to take such deposition upon written interrogatories and 
 cross-interrogatories. When such deposition shall be taken by oral ex- 
 amination, a notification from tlie magistrate before whom it is to be 
 taken, or from the clerk of the court in which such appeal shall be pend- 
 ing, to the adverse party, to be present at the taking of the same, and to 
 put interrogatories if he think fit, shall be served on the adverse party or 
 his attorney, allowing time for their attendance after being notified, not 
 less than twenty-four hours, and, in addition thereto, one day, Sundays 
 exclusive, for every twenty miles' travel. 
 
 Provided, that the court in which such appeal may be pending, or either 
 of the judges thereof, may, upon motion, increase or diminish the length of 
 notice above required. 
 
 Ordered, that, when oral evidence shall be taken down by the clerk of 
 the district court, pursuant to the above-mentioned section of the act of 
 Congress, and shall be transmitted to the circuit court, the same may be 
 used in evidence on the appeal, saving to each party the right to take the 
 depositions of the same witnesses, or either of them, if he should so elect. 
 
 DECEMBER TERM, 1854. 17 Howard, vi. 
 
 Ordered, that the following supplemental rules be added to the rules 
 heretofore adopted by this court, for regulating proceedings in admiralty. 
 
 Rule No. LII. 
 
 When the defendant in his answer alleges new facts, these shall be con- 
 sidered as denied by the libellant, and no replication, general or special, 
 shall be allowed. But within such time after the answer is filed as shall be 
 fixed by the district court, either by general rule or by special order, the 
 libellant may amend his bill, so as to confess and avoid, or explain or add 
 to the new matters set forth in the answer ; and within such time as may 
 be fixed in like manner, the defendant shall answer such amendments. 
 
 Rule No. LIII. 
 
 The clerks of the district courts shall make up the records to be trans- 
 mitted to the circuit courts, on appeals, so that the same shall contain the 
 following : — 
 
 1. The style of the court.
 
 760 APPENDIX. 
 
 2. The names of the parties, setting forth the original parties, and 
 those who have become parties before the appeal, if any change has taken 
 place. 
 
 3. If bail was taken, or property was attached or arrested, the process 
 of arrest or attachment, and the service thereof, all bail and stipulations, 
 and if any sale has been made, the orders, warrants, and reports i-elating 
 thereto. 
 
 4. The libel, with exhibits annexed thereto. 
 
 5. The pleadings of the defendant, with the exhibits annexed thereto. 
 
 6. The testimony on the part of the libellant, and exhibits not annexed 
 to the libel. 
 
 7. The testimony on the part of the defendant, and any exhibits not 
 annexed to his pleadings. 
 
 8. Any order of the court to which exception was made. 
 
 9. Any report of an assessor or assessors if excepted to, with the orders 
 of the court respecting the same, and the exceptions to the report. If the 
 report was not excepted to, only the fact that a reference was made and 
 so much of the report as shows what results were arrived at by the asses- 
 sor, are to be stated. 
 
 10. The final decree. 
 
 11. The prayer for an appeal and the action of the district court 
 thereon, and no reasons of appeal shall be filed or inserted in the tran- 
 script. 
 
 The following shall be omitted : — 
 
 1. The continuances. 
 
 2. All motions, rules, and orders not excepted to, which are merely pre- 
 paratory for trial. 
 
 3. The commissions to take depositions, notices therefor, their captions 
 and certificates of their being sworn to, unless some exception to a depo- 
 sition in the district court was founded on some one or more of these ; in 
 which case so much of either of them as may be set out. In all other 
 cases it shall be sufficient to give the name of the witness, and to copy the 
 interrogatories and answers, and to state the name of the commissioner, 
 and the place where, and the date when, the deposition was sworn to. And 
 in copying all depositions taken on interrogatories, the answer shall be in- 
 serted immediately following the question. 
 
 The clerk of the district court shall page the copy of the record thus 
 made up, and shall make an index thereto ; and he shall certify the entire 
 document, at the end thereof, under the seal of the court, to be a transcript 
 of the record of the district court in the cause named at the beginning of 
 the copy made up, pursuant to this rule ; and no other certificate of the 
 record shall be needful or inserted.
 
 APPENDIX. 
 
 761 
 
 It is further ordered, that these rules be published in the next volume of 
 the reports of the decisions of this court, and that the clerk cause them to 
 be forthwith printed and transmitted to the several district courts. 
 
 January 22, 1855. 
 
 General Rule, No. 9. 
 
 DECEMBER TERM, 1858. 21 Howard. 
 
 [This rule has changed in some respects the Sixty-Third Rule, passed December term, 
 185.3, 16 Howard. The changes are indicated in the notes.] 
 
 First. In all cases where a writ of error or an appeal shall be brought 
 to this court from any judgment or decree rendered thirty days before the 
 commencement of the term, it shall be the duty of the plaintiff in error or 
 appellant, as the case may be, to docket the cause, and file the record 
 thereof with the clei'k of this court within the first six days of the terra ; 
 and if the writ of error or appeal shall be brought from a judgment or 
 decree rendered less than thirty days before the commencement of the 
 term, it shall be the duty of the plaintiff in error or appellant to docket 
 the cause and file the record thereof with the clerk of this court within the 
 first thirty days of the term ; and if the defendant in error or appellant 
 shall fail to comply with this rule, the plaintiff" in error or appellee may 
 have the case docketed and dismissed upon producing a certificate from the 
 clerk of the court wherein the judgment or decree was rendered, stating 
 the cause and certifying that such writ of error or appeal has been duly 
 sued out and allowed. 
 
 And in no case shall the plaintiff in error or appellant be entitled to 
 docket the cause and file the record after the same shall have been dock- 
 eted and dismissed under this rule, unless by order of the court.^ 
 
 Second. But the defendant in error or appellee may, at his option, 
 docket the case and file a copy of the record with the clerk of the court ; 
 and if the case is docketed and a copy of the record filed with the clerk of 
 this court, by the plaintiff in error or appellant,^ within the periods of time 
 above limited and prescribed by this rule, or by the defendant in error or 
 appellee at any time thereafter during the term the case shall stand for 
 argument at the term. 
 
 Third. In all cases where the period of thirty days is mentioned in this 
 rule, it shall be extended to sixty days in writs of error and appeals from 
 California, Oregon, Washington, New Mexico, and Utah. 
 
 ^ In the Sixty-Third Rule, the words " or consent of the opposite party " were 
 added. 
 
 - In the Sixty-Third Rule this sentence read " by either party within the periods
 
 762 APPENDIX. 
 
 General Rule. 
 
 DECEMBER TERM, 1867. 6 Wallace. 
 
 Rule No. 31. 
 
 Appearance. — Notice of Motions. 
 
 Ordered, That upon the filing of the transcript of a record brought up 
 by writ of error or appeal, the appearance of the counsel for the plaiutifF in 
 error or appellant shall be entered, and no motion to dismiss, except on 
 special assignment by the court, shall be heard, unless previous notice has 
 been given to the adverse party, or the counsel or attorney of such party. 
 
 Rule No. 32. 
 Supersedeas. 
 
 Supersedeas bonds in the circuit courts must be taken, with good and 
 sufficient security, that the plaintiff in error or appellant shall prosecute 
 his writ or appeal to effect and answer all damages and costs if he fail to 
 make his plea good. Such indemnity, where the judgment or decree is 
 for the recovery of money not otherwise secured, must be for the whole 
 amount of the judgment or decree, including "just damages for delay," and 
 costs and interest on the appeal ; but in all suits where the property in 
 controversy necessarily follows the event of the suit, as in real actions, 
 replevin, and in suits on mortgages ; or where the property is in the cus- 
 tody of the marshal, under admiralty process, as in the case of capture or 
 seizure ; or where the proceeds thereof, or a bond for the value thereof, is 
 in the custody or control of the court, indemnity in all such cases is only 
 required in an amount sufficient to secure the sum recovered for the use or 
 detention of the property, and the costs of the suit and "just damages for 
 delay," and costs and interest on the appeal. 
 
 Rule No. 33. 
 
 In cases where final judgment is rendered more than thirty days before 
 the first day of the next term of this court, the writ of error and citation, if 
 taken before, must be returnable on the first day of said term, and be 
 served before that day ; but in cases where the judgment is rendered less 
 than thirty days before the first day, the writ of error and citation may be 
 made returnable on the third Monday of the said term, and be served 
 before that day. 
 
 of time above limited and prescribed by this rule, the case shall stand for argu- 
 ment at tlie term."
 
 APPENDIX. 763 
 
 : DISTRICT COURT RULES IN ADMIRALTY. MASSACHUSETTS 
 
 DISTRICT. 
 
 In cases in admiralty in which an appeal is permitted by law, an appeal 
 may be claimed at any time within ten days, Sundays inclusive, from the 
 time of entering up the final decree, and not afterwards, unless the court 
 for cause shown, shall prescribe a longer or shorter time. 
 
 ADMIRALTY RULE, adopted June 27th, 1855. 
 
 In suits 171 personmHy where the defendant cannot be legally arrested, 
 the mesne process may be a warrant to attach his goods and chattels to 
 the amount sued for, or if such property cannot be found, to attach his 
 credits and effects to the amount sued for in the hands of the garnishees 
 named therein, or by a simple monition in the nature of a summons to 
 appear and answer to the suit as the libellant shall in his libel or informa- 
 tion pi'ay for or elect. 
 
 FORMS. 
 
 Much space is generally devoted in works on Admiralty Practice to 
 forms of libels and answers ; but this, we think, is, to a great extent, 
 unnecessary. The narrative part of each libel depends so much on the 
 particular facts of the case, that no form can be literally followed, and the 
 commencement and close of all libels and answers are so similar to each 
 other, that we do not deem it necessary to give more than one form, and 
 then state the peculiarities of the different causes of action. 
 
 The libel is generally entitled 
 
 United States of Ameeica, ) 
 
 District, j 
 
 To the Honorable Judge of the District Court of the United 
 
 States, within and for the District of . 
 
 According to the forms given in Dunlap's Admiralty Practice, and 
 which are generally followed in Massachusetts, the libel begins as follows : 
 
 " The libel and complaint of A. B. of , in the district aforesaid,^ in 
 
 a cause of contract.''^ And thereupon this libellant alleges and articulately 
 propounds as follows." 
 
 ^ If the libel is in rem, it must state that the property is within the district, and 
 if it is in personam, the names, and occupations, and places of residence of the 
 parties must be stated. 23d Admiralty Rule. 
 
 " Or of tort or damage, or of salvage, or of possession, or otherwise, as the case 
 may be. 23d Admiralty Rule.
 
 764 APPENDIX. 
 
 This form of commencement is, perhap?:, not strictly grammatical, and 
 we prefer the form which seems to be in use in other districts, and which 
 we have known used in Massachusetts. This omits the clause, " And 
 thereupon your libellant," etc., and adds the words " alleges as follows." 
 Thus making the libel allege instead of leaving the nominative without a 
 predicate. 
 
 Another form is : A. B. of , exhibits this his libel, etc. And 
 
 thereupon the said A. B. alleges and articulately propounds as follows. 
 
 The following pleadings in a suit in rem against a vessel for non- 
 delivery of goods will serve as a guide for all cases of contract. After 
 one of the above headings, the libel would proceed as follows : — 
 
 First. That on the day of 185 , the said ship, whereof 
 
 A. B. was master, being then in the port of , bound on a voyage 
 
 upon the high seas, and on waters within the admiralty and maritime juris- 
 diction of the United States and of this honorable court, to wit, from the 
 
 said port of to , the libellant [or here give the name of the 
 
 shipper of the goods, if the libellant is not the shipper] being the owner 
 of certain goods [describe them], shipped them on board the said vessel 
 in good order and well-conditioned, to be carried and transported in said 
 
 ship to the said , and there to be delivered to your libellant, or his 
 
 assigns,, in like good order, dangers of the sea only excepted, for the 
 
 freight of ; with per cent primage and average accustomed, 
 
 to be paid by your libellant or his assigns. And the said , master 
 
 as aforesaid, at the said port of , received said merchandise, and 
 
 on the day of , in the year aforesaid, signed two bills of 
 
 lading, and delivered the same to the shipper of said merchandise. 
 [Copies of the bills of lading should be annexed.] 
 
 Second. That on or after the said day of said , the said 
 
 ship sailed from the port of for the said port of , at which 
 
 port she duly arrived and now is ; but notwithstanding your libellant has 
 been at all times and still is ready to receive the whole of said merchan- 
 dise in good order, and on so receiving the same, to pay the freight and 
 charges thereon, according to the tenor and effect of the said bills of 
 
 lading, yet of the value of dollars, part of tl)e said 
 
 , shipped as aforesaid, the said master has not yet delivered, but 
 
 refuses so to do, and owing to the negligent, improper, and careless man- 
 ner in which the said were partially transported, and for want of 
 
 proper care on the part of said master and persons employed by him, the 
 
 said were thrown into the water by the bursting of the boiler, or 
 
 some portion of the steam apparatus of the steam-lighter, which your 
 
 libellant avers was not a danger of the sea, wherein the said , 
 
 master as aforesaid, was transporting said from the shore at said
 
 APPENDIX. 765 
 
 port of • to said ship.^ By reason of which said casting of said 
 
 goods into the water, as aforesaid, the said master did not ti'ansport to said 
 
 port of the said [describe the goods not delivered] and has so 
 
 informed your libellant. By reason of which non-performance of the 
 terms of said contract, as_ set forth in said hills of lading, on the part of 
 said master, as hereinbefore set forth, your libellant has sustained damage 
 to the amount of dollars. 
 
 Third. That all and singular the premises are true, and within the 
 admiralty and maritime jurisdiction of the United States and of this hon- 
 orable court. 
 
 Wherefore the libellant prays that process in due form of law, accord- 
 ing to the course of this court in cases of admiralty and maritime juris- 
 diction, may issue against the said vessel, her tackle, apparel, and furni- 
 ture, and that all persons claiming any interest therein, may be cited to 
 appear and answer all and singular the matters aforesaid, and that this 
 honorable court would be pleased to decree the payment of the damages 
 aforesaid, with costs ; and that the said vessel may be condemned and 
 sold to pay the same, and that the libellant may have such other and 
 further relief in the premises as in law and justice he may be entitled to 
 receive. 
 
 A. B. 
 
 , Proctor for libellant. 
 
 A second count might be filed in such a case, declaring on an agree- 
 ment to carry the goods by the respondents, independent of the contract 
 of which the bill of lading is the evidence. 
 
 The claim may be as follows : — 
 
 United States of A:hekica : 
 District Court of the United States. District. 
 
 IN ADMIRALTY. 
 
 Libellants, versus Ship . 
 
 And now comes before said court, , of , in the district of 
 
 , and CLAIMS that the said ship is owned by him the said 
 
 , and [state names of owners] all of , in the district of 
 
 -, and that, according to his best knowledge and belief, no other per- 
 
 son is owner thereof; and that he, the said , is the agent of the 
 
 said other owners of said ship, duly authorized to make this claim. 
 
 Wherefore he prays that said ship and appurtenances may be delivered 
 
 * Or, if the goods are delivered in a damaged condition, it is sufficient to state 
 this fact, setting forth the nature and extent of the damage, and the burden of 
 proof is then on the respondeat to show the cause of the injury.
 
 766 APPENDIX. 
 
 to him, upon his entering into such stipulations therefor as this honorable 
 court shall order in the premises. 
 
 [Signed.] . 
 
 District, ss. [Date.] 
 
 Sworn to by said , before me, 
 
 ANSWER 
 
 To the Honorable , Judge of the District Court of the United 
 
 States for the District of . 
 
 The answer of , of , , part owner of the ship called 
 
 the , to the libel of against said ship. 
 
 First. This respondent says that in the month of December last, the said 
 
 gliip was lying in said port of , bound for , and that 
 
 the libellant proposed and agreed to ship on board thereof [describe the 
 goods], upon the terms of freight mentioned in the said libel, to be trans- 
 ported and delivered to the libellants, the dangers of the seas only excepted. 
 But this respondent denies that the whole amount of said goods was ever 
 
 shipped on board of said vessel, or any larger amount than , which 
 
 have been transported and duly delivered to the libellants, besides 
 
 hereinafter mentioned, which have been tendered to the libellants or their 
 agent. 
 
 Second. This respondent says that there are no wharves at 
 
 where vessels of the size of the can lie, and that the merchandise 
 
 to be laden on board of such vessels is taken to them on board of lighters 
 propelled by steam, and that on the 20th day of said December, certain 
 goods, being part of those agreed to be shipped, were put on board of a 
 
 steam lifhter called the , and while the same were on board thereof, 
 
 the boiler thereof exploded, and the said goods were thrown into the water, 
 of which part were saved in a wet and damaged condition, in consequence 
 of which it was necessary and expedient to sell them, and they were sold ; 
 
 part were afterwards put on board of the and brought to , 
 
 and have been delivered or tendered to the libellants ; part are in the 
 
 hands of the agent of the libellants in , for account of the libellants, 
 
 and the rest were lost ; the said goods being those referred to in the said 
 libel as having been shipped on board of the said ship, and not delivered, 
 which said shipment your respondent denies ever to have been made. 
 
 Third. This respondent says that the said steam lighter , was a 
 
 steamer regularly qualified and certified for such business, duly licensed 
 and constantly employed therein, and that so far as this respondent knows 
 or behevcs, and as he alleges, was fit, suitable, and proper for such employ-
 
 APPENDIX. 767 
 
 ment, and what is there termed bay-worthy ; and if she was not, which the 
 respondent does not admit but denies, he still insists that the owners of said 
 ship are not in any wise responsible therefor, or liable for any loss which 
 may happen to goods on board thereof intended to be laden on board of the 
 said ship, and being transported thereto ; but insists that during the time 
 of such transportation, such goods are at the risk of the owners thereof, and 
 are so considered by the usage of merchants, and that insurance is always 
 made thereon by the owners to cover the same w^hile on board of lighters, 
 and that the said goods were insured on behalf of the libellants against the 
 risk of lighterage, and that the insurers thereon had paid or agreed to 
 pay the loss thereon, and that this libel is promoted for their benefit and at 
 their expense^ 
 
 Fourth. This respondent further answering says : that the employment 
 of steam lighters at said port of is usual, necessary, and unavoid- 
 able, and that in such cases all perils peculiar and incident to that particular 
 kind of navigation are, and ought to be, deemed pei'ils of the seas, for loss 
 and damage, whereby the owners of ships are not and ought not to be held 
 responsible, inasmuch as they cannot by any care or diligence on their part, 
 or that of their servants, or agents, prevent or guard against the same, and 
 that the owners of vessels are not, and ought not, to be held bound to 
 insure the owners of goods against such losses, or any want of care, negli- 
 gence, or defect in the care, management, navigation, or construction of 
 said steam lighters, because they have no control over the same. And this 
 respondent insists, that if the owners of said ship were ever responsible for 
 said goods, which he wholly denies, yet that they would not be responsible 
 for any loss or damage thereto, by reason of the explosion of the boiler of 
 a steam lighter, the same being a peril of the seas, incident to navigation, 
 in said port. 
 
 Fifth. This respondent admits that after the said loss occurred, to wit, 
 
 on said , the master of said ship signed two bills of lading, copies of 
 
 which are annexed to the said libel, for a certain number of packages of 
 goods, which included those on board of the said lighter, at the time of the 
 said explosion, and of which fourteen only were on board of the said ship 
 when said bills were signed. And this respondent alleges that the said 
 bills were signed by said master under a mistaken idea that he was bound 
 to do so because said goods had been put on board of the said lighter, and 
 under the apprehension and threat that the vessel would be arrested and 
 detained, and loss and damage incurred, if he refused to sign them. And 
 your respondent alleges and insists, that the master of a ship has no 
 authority to sign bills of lading for goods and merchandise, until the same 
 are actually laden on board, and that the owners of vessels are not in any 
 wise responsible on account of bills so signed, unless the goods are actually
 
 768 APPENDIX. 
 
 shipped on board thereof; and so the owners of said vessel are not liable 
 for any loss or damage to said goods. 
 
 Sixth. This respondent further insists, that if the owners of vessels are 
 liable on contracts for the transportation of goods made by the master 
 before the goods are actually shipped on board of the vessel, which he does 
 not admit but denies, yet that, by the maritime law, the vessel itself is not 
 and does not become liable and accountable therefor, until the goods are 
 actually laden on board thereof, and that no suit against the vessel can be 
 maintained for any loss or damage thereto, unless the goods are on board 
 thereof at the time when the same shall occur. 
 
 Seventh. This respondent denies that by reason of the matters and 
 things alleged in said libel, the said libellants have sustained damage to 
 
 the amount of dollars, or any damage or loss for which said vessel 
 
 is liable. 
 
 "Wherefore this respondent prays that the said libel may be dismissed, 
 and the said vessel restored to him, and for his costs. 
 
 A. B. 
 
 C. D. Proctor. 
 
 ■ District [date]. 
 
 Signed and sworn to, before me, 
 
 . (J. S. Commissioner. 
 
 Suit in rem tinder Charter-part!/ for Non-delivery of Goods. 
 
 A libel in rem under a charter-party against the vessel, for non- 
 delivery of goods, would be very similar to the above, and the charter- 
 party should properly be annexed together with the bills of lading, if any 
 are given. 
 
 Suit in personam for Breach of Charter-pm-ty or of Contract of 
 Affreightment. 
 
 In a suit in personam for breach of either an ordinary contract of 
 affreightment or under a charter-party, the libel should set forth that the 
 respondents are owners of the vessel. 
 
 Suit in rem for Freight. 
 
 A libel in rem against goods for the freight due should set forth the 
 reception of the goods, the arrival of the ship, the notice to the consignee 
 that the goods were ready for delivery, and that an opportunity for 
 inspecting the goods was given, but that the consignee would not receive 
 the goods, nor pay the freight, etc.
 
 APPENDIX. 769 
 
 Suit in personam for Freight. 
 
 A libel 171 personam should, if against the owner of the goods, allege 
 the performance of the contract by a delivery, or offer of delivery, and 
 if against the consignee, the libel should allege that the consignee had 
 received the goods. ■ 
 
 Suit in remybr Repairs or Supplies. 
 A libel in rem for repairs or supplies furnished a foreign vessel should 
 state that at the time the repairs were made, or supplies furnished, the 
 vessel was not owned or enrolled in the State where the supplies were 
 furnished and the repairs made. It should also represent that on a cer- 
 tain day the vessel being at a certain port within the admiralty and mari- 
 time jurisdiction of the United States, and being unseaworthy, or needing 
 supplies or repairs, the libellant was requested by the master to repair 
 the vessel, or furnish her with supplies, and that he did so. The repairs 
 or supplies should be stated at length. It should also be alleged that the 
 repairs or supplies were furnished on the credit of the ship, and were 
 necessary and suitable, and that the amount due has not been paid. It 
 has also been held that it is necessary to allege that the supplies or repairs 
 could not have been procured on the credit of the owner of the vessel. 
 
 Suit in personam for Repairs or Supplies. 
 Libels in personam against the master or owner, in cases of foreign or 
 domestic vessels, are very similar to those in rem, and no difficulty will be 
 found in drawing them. 
 
 Suits under Act of 1845. 
 Libels under the Act of 1845, conferring jurisdiction upon the district 
 courts over the great lakes and navigable waters connecting the same, 
 should state that the vessel is of twenty tons burden and upwards, that 
 she was at the time enrolled and licensed for the coasting-trade, and 
 employed in commei'ce between ports in different States and Territories 
 upon the lakes or navigable waters connecting the same. 
 
 Suits for Wages. 
 In suits for mariners' wages, the voyage should be accurately described, 
 and the hiring, the performance of duty, and the breach, should be fully 
 set forth. The libel may also pray that the respondent be ordered to 
 produce a copy of the shipping articles. 
 
 Suits on Bottomry Bonds. 
 
 A libel on a bottomry bond, if it is made by the master, should state 
 VOL. II. 49
 
 770 APPENDIX. 
 
 the necessity which occasioned the giving of the bond, and that the master 
 had no other means of procuring means to make the repairs. It should 
 also allege the making of the bond, its terms, the departure of the vessel, 
 and her safe arrival at the port where the bond was, by its terms, payable, 
 and that the amount of the bond has not been paid. A copy of the bond 
 should be annexed. 
 
 Suits for Salvage. 
 
 In libels for salvage, when the libellants are many in number, the 
 names of the libellants may be inserted in a paper annexed. The libel 
 should describe the position of the vessel or property saved, the danger 
 it was in, with some minuteness of detail, and the services rendered. 
 
 Suits in Causes of Collision. 
 
 The libel should set forth the ownership of the vessel, the voyage on 
 which she was bound, and that she was seaworthy and sufficiently pro- 
 vided with tackle, apparel, and furniture. It should then state the time 
 and place of the accident as nearly as possible, the force and direction of 
 the wind, the state of the weather, and the course the vessels were respec- 
 tively steering. The position of the crew on deck in respect to the look- 
 out, and all measures which were adopted to prevent the collision, should 
 also be stated. It should also aver that the collision and loss were caused 
 wholly by the culpable carelessness and negligence of those on board the 
 other vessel, and that they would not have happened if due caution and 
 proper diligence had been used by those on board the colliding vessel, 
 and that they were in no way caused by those on board the vessel injured. 
 The damage done should then be stated, and if the suit is in rem, there 
 should be an allegation that the property is within the jurisdiction of the 
 court. 
 
 Suit in a Cause of Damage for an Assault. 
 
 The libel should state the voyage on which the libellant was shipped, 
 and that during the voyage he well and truly performed his duty, and 
 obeyed all the lawful commands of the master and other officers on board 
 the ship. Each injury received, or assault complained of, should be then 
 set forth in a distinct article. 
 
 Possessory Suits. 
 
 In a possessory suit the libel should state the ownership of the vessel, 
 setting forth the proportion owned by the libellant, and the reasons which 
 entitle him to the possession, and there should be a prayer that all docu- 
 ments relating to the national character of the vessel be delivered up to
 
 APPENDIX. 771 
 
 the libellant. The circumstances which may entitle the owner to the 
 possession are so various, that no particular form can be given. 
 
 Petition for the Sale of the Vessel. 
 
 No particular form is necessary for this. The libel should set forth the 
 facts in extenso which render the sale necessary, and pray that the court 
 order the same to be made. 
 
 Suits against Proceeds in the Registry. 
 
 These should be by petition, and should state the nature of the peti- 
 tioner's demand, and should conclude with a prayer that the court will 
 pronounce for the demand, and direct it to be paid out of the proceeds, 
 and for such other relief as the petitioner is in right and justice entitled 
 to, and as the court is competent to give. If a claimant has appeared, 
 there should also be a petition that he be summoned to appear and show 
 cause, if any he has, why the petition should not be granted. 
 
 ANSWERS. 
 
 The manner of beginning and ending answers in admiralty will be 
 seen from the form that we have before given. The same form will also 
 show the manner of drawing the articles which state the defence, and for 
 the matters which may be set up in defence, we refer to several subjects 
 which we have considered in the body of our work.
 
 INDEX. 
 
 A. 
 
 ACTIONS, trover for conversion of ship by one part-owner, i. 93, 94, n. 1, 
 
 whether ship's husband can bring, i. 111. 
 
 by and against part-owners, i. 116 - 127. See Part-Owners, VIII. 
 
 joinder of part-owners in, for tort and in contract, i. 116-119. 
 
 between part-owners for contribution, i. 119. 
 
 against vessels by name, i. 119, 120. See Part-Owners, VIII. 
 
 by one part-owner in name of vessel, i. 122, n. 
 
 trespass against steamboats by name, i. 122, n. 
 
 assumpsit for freight between part-owners, i. 117, n. 1. 
 
 assumpsit for wages upon shipping articles signed by one party, ii. 42, and n. 2. 
 ACT OF CONGRESS. See Statute. 
 
 " ACT OF GOD," exception of perils by, in bills of lading, i. 253, 254. 
 ADJUSTMENT, in general average, i. 444-472. See General Average. 
 ADMINISTRATOR, may sue in Admiralty when, ii. 371. 
 
 evidence of, ii. 437. 
 ADMIRALTY, sale of ship under decree of, i. 74-78. See Sale of Ship, V. 
 
 care of seamen in. See Seamen. 
 ADMIRALTY, JURISDICTION OF, ii. 159-190. 
 
 I. As DETERMINED BT PlACE, 11. 159-174. 
 
 in England confined to places outside body of county, ii. 159. 
 and within ebb and flow of tide, ii. 159. 
 permanent where tide always flows, ii. 159. 
 
 between high and low water mark, when tide covers place, ii. 159. 
 and ceasing when tide leaves, ii. 159. 
 what body of county comprehends, ii. 160, n. 
 in America conferred by statutes, ii. 159, 160. 
 and defined and measured thereby, ii. 160, 161. 
 at first confined to sea or waters within ebb and flow of tide, ii. 162. 
 then extended to places where tide was not strong enough to turn back cur- 
 rent, ii. 162. 
 but merely to cause regular rise and fall of water, ii. 162. 
 though within body of county, ii, 163. 
 
 but voyage was required to be substantially maritime, ii. 163, 164. 
 act of 1845, extending, constitutional, ii. 164. 
 limitation to tide waters inapplicable in America, ii. 165. 
 extends now over navigable waters, ii. 165.
 
 774 INDEX. 
 
 ADMIRALTY, JUEISDICTION OY —Continued. 
 
 however remote from tide, ii. 165. 
 
 meaning of navigable waters, ii. 165. 
 
 this depends on circumstances of case, ii. 165. 
 
 constitutionality sustained in later cases, ii. 166. 
 
 as Mississippi and Alabama rivers, ii. 166. 
 
 discussion of decision of United States Supreme Court as to constitutionality, 
 ii. 167, 168. 
 
 Welland canal, navigable water, ii. 168, and n. 
 
 whether it extends to carriage of goods between ports in same State, ii. 1 68, 
 510. 
 
 no suit maintainable for supplies furnished a vessel trading exclusively be- 
 tween ports in the same State, ii. 169. 
 
 whether admiralty has jurisdiction in salvage when vessel saved was engaged 
 in internal trade, ii. 170. 
 
 locality the test in case of tort, ii. 170. 
 
 in prize, depends on subject matter, ii. 173. 
 
 prize cannot be tried at common law, ii. 173, n. 
 
 in mixed cases, where services are principally maritime, ii. 170, 171. 
 
 liens, like those in admiralty, given by local law, ii. 171, 172. 
 
 and admiralty will enforce, ii. 171. 
 
 so far as appertaining to maritime matters, ii. 171, 172. 
 
 not to matters not cognizable in admiralty, ii. 172. 
 
 so of lien given by foreign government or law, ii. 172. 
 
 extends to captures on land by co-operation of naval force, ii. 173. 
 
 all cases of prize within, ii. 173, n. 
 
 act of 1861, as to confiscation of property used for insurrectionary purposes, ii. 
 173, 174. 
 
 circuit and districts courts have jurisdiction under, ii. 174. 
 applies to seizures on land as well as on sea, ii. 174. 
 proceedings to be in conformity to admiralty, ii. 174. 
 but issues of fact may be tried by jury, ii. 174. 
 
 II. As DETERMINED BY SUBJECT-MATTEK OF ACTION, ii. 174 - 190. 
 
 prior to Richard III., extended to all maritime contracts, ii. 174. 
 
 and all offences on high seas or tide waters, ii. 174. 
 
 conflict between common law and admiralty courts as to, ii. 175, 176, 
 
 meaning of admiralty and maritime jurisdiction, ii. 176. 
 
 settled by Marshall, C. J., Story and Washington, JJ., ii. 176. 
 
 coequal with ancient English, ii. 176. 
 
 and embraces all maritime contracts, torts, injuries, and offences, ii. 176. 
 
 salvage, bottomry and respondentia, seamen's wages, ii. 177. 
 
 seizures under impost, navigation, and trade laws, ii. 177, 178. 
 
 prizes, ransoms, and charter-parties, ii. 178. 
 
 contracts of affreightment in voyages between different States, ii. 178. 
 
 whether between ports in same State, ii. 169, 179, n. 185. 
 
 contracts for conveyance of passengers, ii. 179. 
 
 contracts with material men, ii. 179. 
 
 this now limited by Twelfth Admiralty Rule, ii. 172, n. 2, 179, n. 2. 
 
 jettisons, maritime contributions, and averages, ii. 179. 
 
 pilotage, surveys of ship and cargo, ii. 180.
 
 INDEX. 775 
 
 ADMIRALTY, JURISDICTION OF — Continued. 
 
 assaults, damages, and trespasses on high seas, ii. 180. 
 
 torts on tide waters within foreign ports, ii. 180. 
 
 whether to those on places above tide waters, ii. 181. 
 
 whether to policies of insurance, ii. 181. 
 
 who mat/ sue in, ii. 1 82 - 186. 
 
 seamen, pilots, engineers, and deck hands on board steamboat, ii. 182. 
 
 and any person serving materially in navigation of vessel, ii. 182. 
 
 as mate and engineer of towing steamer, ii. 182. 
 
 pursers, stewards, cooks, ship carpenters, coopers on whaling voyages, and all 
 
 officers except the master, ii. 182. 
 whether surgeon or physician may, not entirely settled, ii. 182, 183. 
 woman performing seaman's work may, ii. 183. 
 and wreckers, when, ii. 183. 
 landsmen may not, ii. 184. 
 nor barbers, ii. 184. 
 nor musicians, ii. 184. 
 canal-boat not subject to libel, ii. 185. 
 libel sustainable for services of seamen in fitting up vessel which did not go to 
 
 sea, ii. 185, n. 3. 
 not for services as watchman or keeper, if voyage is ended, ii. 186. 
 otherwise if voyage is temporarily delayed and seaman not discharged, ii. 
 
 186. 
 assignee of seaman's wages cannot maintain action in rem, ii. 186. 
 in England, formerly not to petitory suits, ii. 186. 
 hut now extended to them, ii. 186. 
 in America, petitory suits within, ii. 187. 
 to contracts of consortship, wharfage, and towage, ii. 188. 
 but not to matters of account between part-owners, ii. 188. 
 equitable co-owners cannot sue other co-owners, when, ii. 188. 
 and admiralty has no jurisdiction over contracts in trade, ii. 188. 
 hut master may sue, for wages, though part-owner, ii. 188. 
 nor between owners and general agent, for money paid to their use, ii. 188. 
 nor to decree sale of ship for unpaid mortgage, ii. 189. 
 nor to decree possession to mortgagee, ii. 189. 
 action for breach of limited partnership will not lie in, ii. 189. 
 ship-broker has lien for obtaining crew, ii. 189. 
 stevedores have no lien in rem, ii. 189. 
 nor in personam, ii. 189. 
 
 but may proceed against remnants in the registry, ii. 1 89. 
 person hired to take care of vessel in port cannot sue in, ii. 189, 190. 
 otherwise, if he navigates vessel from one anchorage to another, ii. 190. 
 person hired to scrape vessel has no lien, ii. 190. 
 or to compress cargo, ii. 190. 
 or for advertising, commissions for procuring freight, or wages of lightermen, 
 
 ii. 190. 
 or for drawing a contract, ii. 190. 
 
 nor to preliminary agreement to execute maritime contract, ii. 190. 
 III. Equity Jurisdiction of. See Equity Jurisdiction and Practice of Courts of 
 
 Admiralty, ii. 344 - 346.
 
 776 INDEX. 
 
 ADMIEALTY, JURISDICTION OF — Continued. 
 
 IV. Suits by Foreignees in, ii. 223 - 230. 
 commerce the general subject of jurisdiction, ii. 223. 
 
 courts will sometimes enforce decrees of other admiralty courts, ii. 223. 
 
 citizens of one nation may sue in another, ii. 223. 
 
 will act in matters belonging to international law, ii. 223. 
 
 as in case of bottomry bonds, ii. 223, 227. 
 
 and in seamen's wages, ii. 223, 227. 
 
 if suit is begun by consent of representative of coimtry of ship, ii. 224. 
 
 and sometimes where such consent cannot be had, ii. 224. 
 
 consent of foreign minister essential to exercise of discretion, ii. 224. 
 
 this perliaps more necessary in America than in England, ii. 229, 230. 
 
 but consent not essential to jurisdiction, ii. 224, 229. 
 
 will not enforce mere foreign municipal law, ii. 224. 
 
 although having jurisdiction over subject-matter, ii. 224. 
 
 will not take jurisdiction of possessory suits between foreigners, ii. 225. 
 
 in America, jurisdiction entertained in suits between foreigners, ii. 226. 
 
 if subject in dispute is of maritime nature, ii. 226. 
 
 this a question of discretion, ii. 226. 
 
 claims for salvage depending on international law, considered, ii. 226, 227. 
 
 usually invoked in cases of seamen's wages, ii. 227. 
 
 and cognizance taken when justice demands, ii. 227. 
 
 as where voyage is broken up at foreign port, ii. 227. 
 
 or seamen compelled to desert for cruel treatment, ii. 227, 228. 
 
 or entitled to discharge for deviation, ii. 228. 
 
 whether if discharged by their own wish or consent, ii. 228. 
 
 not if they leave before end of voyage, ii. 228. 
 
 and when they could return home, ii. 228. 
 
 American courts will enforce foreign statute, if necessary, ii. 228. 
 
 stipulations in shipping articles preventing seamen from suing save in home 
 
 port, inapplicable, if voyage is broken up in foreign country, ii. 228, 229. 
 jurisdiction sustained in case brought by alien, against consul, also alien, to 
 
 recover fees improperly exacted, ii. 230. 
 
 V. Jurisdiction over Proceeds in Registry, ii. 231-235. 
 power to distribute unquestioned, ii. 231. 
 
 as to right to decree proceeds to third parties unable to proceed against prop- 
 erty in rem, ii. 231. 
 
 this not settled on authority, ii. 231. 
 
 in England, before late statute, material men unable to enforce lien in admi- 
 ralty, ii. 231. 
 
 but could receive, on petition, amount due, from surplus in registry, ii. 231. 
 
 but decisions conflicting, ii. 231. 
 
 mortgagee not in possession denied share of, ii. 232. 
 
 policy more liberal in America, ii. 232. 
 
 proceeds delivered to party establishing lawful ownership, ii. 232. 
 
 right limited to those having lien on ship, ii. 233. 
 
 or other thing out of which the money came, ii. 233. 
 
 may be enforced if lien is waived by intendment of law, ii. 233. 
 
 or lost by neglect to enforce it within proper time, ii. 233. 
 
 whether subject to claims of master, after satisfaction of liens, ii. 233.
 
 INDEX. 777 
 
 ADMIRALTY, JURISDICTION OF — Continued. 
 
 this doctrine held, even where master can only sue in personam, ii. 233. 
 
 also in stevedore's claim, ii. 233. 
 
 and in matters of account between part-owners, ii. 233. 
 
 but this doctrine unsupported on principle or authority, ii. 233. 
 
 no distinction between mortgagee in, or out of possession, ii. 233. 
 
 but proceeds given to either in preference to general creditor, ii. 233. 
 
 surety on bond or stipulation in admiralty, entitled to, ii. 234. 
 
 after payment of claims for which vessel was libelled, ii. 234. 
 
 his right no greater than that of original debtor, ii. 234. 
 
 and postponed to creditors having liens, ii. 234. 
 
 when proceeds insufficient to satisfy all demands, paid by precedence, ii. 234. 
 
 seamen's wages first, ii. 234. 
 
 then bottomry bond, ii. 234. 
 
 then claim of material men, ii. 234. 
 
 when several claims are filed by material men, and one has obtained decree, he 
 to be paid first, and otiiers share ratably, ii. 234. 
 
 if party injured by collision institutes proceedings, he to be paid before other 
 injured party who has taken no part in litigation, ii. 234. 
 
 priority in bringing suit does not give priority in payment unless, ii. 234. 
 
 lien of shipwright subject to liens on vessel when taken into the yard, ii. 234. 
 
 when master in England cannot enforce lien for wages, ii. 234. 
 
 lien of master for freight and general average precedes that on bottomry 
 bond, ii. 235. 
 
 proceeds in registry not attachable by process of common law court, ii. 235. 
 
 money decreed to be paid to libellant not appropriated to payment of his 
 debts, ii. 235. 
 
 how balance, after sale of vessel and satisfaction of claim, is appropriated, 
 ii. 235. 
 ADMIRALTY JURISPRUDENCE, PRINCIPLES OF, ii. 236-259. 
 I. Rights and Duties or Ship-owners, ii. 236-246. 
 
 held in England that party holding bill of sale has legal title, ii. 236. 
 
 and entitled to possession against all equitable claims, ii. 236. 
 
 court, as to possession, looks only to legal title, ii. 236, 237. 
 
 and no respect paid to equitable interests, ii. 187, n., 237. 
 
 doubtful whether this would be held in America, ii. 237. 
 
 and so perhaps in England, ii. 237. 
 
 but regular bill of sale of much force, ii. 238. 
 
 legal ownership decided by bill of sale, ii. 238. 
 
 and equitable interests in claimants immaterial thereto, ii. 238. 
 
 distinction between petitory and possessory suits in England prevents admi- 
 ralty decisions there from applying fully to America, ii. 238, 239. 
 
 majority of part-owners may dispose of ship, ii. 239. 
 
 if they give dissenting minority security for her safe return, ii. 239. 
 
 and if majority refuse to employ, minority may, ii. 239, 243. 
 
 possession given to those desiring to employ, ii. 240. 
 
 but security for safe return must be given, ir. 240, n. 
 
 in England decree of possession refused to owner of moiety, ii. 241, 242. 
 
 employment must not be unsafe, ii. 242. 
 
 necessity of security to those refusing to employ, ii. 243.
 
 778 INDEX. 
 
 ADMIRALTY JURISPRUDENCE, PRINCIPLES 0¥ — Continued. 
 whether those refusing are entitled to freight, ii. 243. 
 in England, British part-owner of foreign ship cannot arrest vessel to procure 
 
 bail for safe return, ii. 244. 
 omission to comply with law in regard to return of old license does not pre- 
 vent owner, in this country, from applying to court for security for safe 
 
 return, ii. 244. 
 if such omission is not fraudulent, ii. 244. 
 decree of court ordering possession not a sale, and does not free vessel from 
 
 incumbrances, ii. 244'. 
 in England, if owner of greater part brings suit against master, who is also an 
 
 owner, he will not be allowed to retain possession on giving security, ii. 245. 
 and master's removal necessary if he commits fraud, ii. 245, 246. 
 See Sale by ordei- of Admiralty, ii. 338-343. 
 II. Contracts of Affreightment, ii. 246 -253. 
 
 same law applicable in admiralty whether goods are carried on freight or by 
 
 charter, ii. 246. 
 unless charterer hires vessel wholly, and mans, equips, and sails her himself, 
 
 ii. 246. 
 owner, in such case, has no lien on cargo, ii. 246. 
 charterer has lien, ii. 246. 
 
 ship-owner has lien on cargo, for freight due, ii. 246. 
 this the rule at law, and in admiralty, ii. 246. 
 admiralty process more prompt and effective, ii. 246. 
 admiralty originally acted in personam, ii. 246. 
 and now action in rem subordinate to its general authority, ii. 247. 
 actual possession, by court, of property libelled, not essential, ii. 247. 
 court may order it into custody of law, ii. 247. 
 and will presume it there, for purposes of justice, ii. 247, 
 ship has lien on cargo, ii. 248. 
 application of law of lien to freight, liberal, ii. 248. 
 diversity of opinion as to origin, nature, and principles of this law, 
 
 ii. 248-251. 
 regarded in England by common-law courts as common-law lien, ii. 248. 
 meaning of privilegium, ii. 248. 
 does not depend upon possession, ii. 248. 
 lien at common law requires possession, ii. 249. 
 lien in admiralty not a common-law lien, ii. 249. 
 nor mere continuance of right of possession, ii. 249. 
 in part & privilegium, ii. 249. 
 
 but may by agreement be converted into a lien, ii. 250. 
 what amounts to such agreement, ii. 250. 
 this is a question of difficulty, ii. 250. 
 
 delay of ship-owner to enforce privilegium, may destroy, ii. 250. 
 owner of cargo has lien on ship for injury by fault of ship or master, ii. 251. 
 lien may be sustained in admiralty by suit in rem, ii. 252. 
 vessel regarded as pledged to owner from time of misfortune, ii. 252. 
 and this claim prior to that of general creditors, ii. 252. 
 not defeated by sale in good faith with transfer of possession, ii. 252. 
 if made before shipper could enforce, ii. 252.
 
 INDEX. 779 
 
 ADMIRALTY JURISPRUDENCE, PRINCIPLES OF — Continued. 
 although purchaser was ignorant of lien, ii. 252. 
 unless delay was such as to cause purchaser to buy, ii. 2.52. 
 acceptance of goods by consignee will not defeat, ii. 2.52. 
 nor receipt of delivery of goods in good order, ii. 252. 
 unless made with knowledge of injury, ii. 252. 
 or circumstances show intent to waive, ii. 252. 
 
 jurisdiction over actions m personam for non-delivery of cargo, ii. 253. 
 III. Of Freight in Cases of Prize, ii. 253-259. 
 questions concerning, belong to admiralty, ii. 253. 
 
 neutral vessel carrying hostile cargo may claim freight of captors, ii. 253. 
 otherwise if cargo is contraband, ii. 254. 
 or voyage quasi contraband, ii. 254. 
 
 or undertaken to relieve enemy from distress caused by war, ii. 254. 
 as by carrying on her colonial or coasting trade, ii. 254. 
 so if master ceases to act as neutral, ii. 254, 255. 
 as by spoliation of papers, ii. 255. 
 capture equivalent to delivery, ii. 255. 
 where captor possesses himself of right of enemy, ii. 255. 
 and prevents earning of freight, ii. 255. 
 freight not payable if ship is lost by accident, ii. 255, 256. 
 or by superior force, ii. 256. 
 
 if incapacity to proceed fall on ship and cargo, loss divided, ii. 256. 
 if neutral sail under license, no freight allowed on goods not enumerated 
 
 therein, ii. 256. 
 freight not earned unless goods are delivered, ii. 256. 
 this applicable to capture, ii. 256. 
 if captor delivers, freight is earned, ii. 256, 257. 
 admiralty will not carefully consider expense and profit, ii. 257. 
 if captor injure goods, he is liable to claim by way of offset, ii. 257. 
 if prize master negligently lose ship ordered to be restored, freight decreed 
 
 against captor, ii. 257. 
 though only part of goods are saved, ii. 257. 
 
 captor held to pay freight, not bound by terms of charter-party, ii. 257, 258. 
 freight due from vessels seized in port before hostilities, goes to the crown, ii. 258. 
 but owners may deduct money advanced for repairs, ii. 258. 
 in capture and restitution, freight takes precedence over claim of captor for 
 
 expenses, ii. 258. 
 but this claim prior to that of neutral master for expenses, ii. 258. 
 prize cargo sent in for adjudication in transport chartered by government, not 
 liable to any charges in favor of owners of vessel, ii. 259. 
 ADMIRALTY PRACTICE, ii. 354-508. See Amendments, ii. 429-432; Answer, 
 ii. 422-428; Appeals, ii. 496-508; Claim, ii. 402-421 ; Commissioners, ii. 455-457 ; 
 Contumacy and Default, ii. 400; Costs, ii. 479-483; Decrees, ii. 487-493; Final 
 Process, ii. 494; Mesne Process in Personam, ii. 388-395; Mesne Process in Rem, 
 ii. 396-398; Mesne Process in Rem and in Personam, ii. 399 ; Prize Causes, ii. 458- 
 478; Proctors, ii. 358-360; Set Offs and Cross Libels, ii. 433; Suit, ii. 361-387 ; 
 Tenders, ii. 484 - 486 ; Trial, ii. 435-454. 
 ADMISSIONS, of one part-owner do not bind others, i. 116. 
 AFFIDAVITS, admissibility of, in evidence, ii. 439.
 
 780 INDEX. 
 
 AFFREIGHTMENT, contracts of. See Admiralty Jurisprudence, principles of, 
 ii. 246-253. 
 contracts of, under Missouri statute allowing suit against steamboat by name, 
 i. 122, n. 
 AGENCY, rules of, as applied to sale of ship, i. 86 - 88. See Sale of Ship, VIII. 
 as governing the liability of part-owners, i. 106. 
 
 the liens of part-owners, i. 91, 107, 108, 114. 
 the liability of owners, charterers, mortgagors, and mortgagees. 
 See Ownei's. 
 of ship's husband, i. 109. 
 
 when agent must use name of principal in order to bind him ; distinction be- 
 tween contracts under seal and those not, i. 276, n. 
 proper signature of agent, i. 276, n. 
 
 whether bottomry bond may be given to an agent, i. 155-158, and note, 
 of master, i. 68 - 74, 86 ; 146, 276 ; ii. 13 - 31. See Sale of Ship, IV. ; VI. ; 
 Master ; and Hypothecation by Bottomry. 
 AGENTS, ii. 402, 403. 
 AGREEMENT. See Contract. 
 ALIEN ENEMY, when he can stop goods in transitu. See Stoppage in Transitu, V. 
 
 i. 517. 
 ALIENS, rights of, under registry laws, i. 25 -49, 74 - 78. See Registry and Naviga- 
 tion Laws ; Sale of Ship, Y.; Admiralty, Jurisdiction of, IV. 
 ALLOWANCE, ii. 75-77. See Seamen, IV. 
 ALTERATION, of charter- party, effect of, i. 274, 275. 
 
 in sliipping articles, ii. 45, 46. 
 AMENDMENTS IN ADMIRALTY, ii. 429-432. 
 
 in matters of form made at any time, as of course, on motion to court, ii. 
 
 429. 
 new counts may be filed before final decree, upon such terms as court shall 
 
 impose, ii. 429. 
 libellant cannot amend by adding interest to claim, in order to make amount 
 
 sufScicnt to justify appeal, ii. 429, 430. 
 in answer, in circuit, on appeal f-om district court, ii. 430, n. 2. 
 
 leave given, in respect to matters of substance, with great caution, ii. 430, 
 
 n. 2. 
 if containing denial of facts previously admitted, reasons to be clearly 
 
 shown by affidavit, ii. 430, n. 2. 
 so in allegation of new facts showing new defence, ii. 430, n. 2. ' 
 
 each proposed change in answer to be exhibited separately, ii. 430, n. 2. 
 with apt references to original answer, ii. 430, n. 2. 
 respondent not allowed to require formal proof of written documents 
 
 admitted by answer to be authentic, ii. 430, n. 2. 
 unless by affidavit denying signatures, ii. 430, n. 2. 
 and explaining former admission, ii. 430, n. 2. 
 original documents not required where copies, admitted as correct, were 
 
 used on previous trial, ii. 430, n. 2. 
 without proof that originals were under control of libellant, ii. 430, 
 
 n. 2. 
 and can be produced without causing delay, ii. 430, n. 2. 
 and that production is material, ii. 430, n. 2.
 
 INDEX. 
 
 781 
 
 AMENDMENTS IN ADMIRALTY — Co«anM<'(^. 
 
 withdrawal of admission of matter of fact, on ground of mistake of law, 
 
 admissible, if ever, only under extraordinary circumstances, ii. 430, n. 2. 
 
 answer cannot be entirely recast, if manner of so doing was shown in 
 
 opinion of district court, so as to shift burden of proof, ii. 430, n. 2. 
 or to obtain other legal advantage, ii. 430, n. 2. 
 not allowed on account of mei-e defect of skill in drafting original answer, 
 
 ii. 430, n. 2. 
 form of action cannot be changed by, ii. 430, 431. 
 district court may make amendment, ii. 431. 
 and appellate court can remand case for, ii. 431. 
 if suit is improperly brought against vessel in rem and owner in personam, court 
 
 may order owner's name to be struck out, ii. 431. 
 so if libel is improperly brought in prize, ii. 431. 
 
 and if party to suit has lost interest, his name may be struck off, ii. 431. 
 whether appellee who was libellant in district court may amend libel in circuit 
 
 court to claim damages above costs for vexatious delay, ii. 431, 432. 
 motions and petitions for adding and subtracting parties, allowed with freedom, 
 
 ii. 432. 
 so for distribution, sale, or incidental purposes, ii. 432. 
 no objection, that rights of sureties may be affected, ii. 432. 
 rules of court seldom interfere with proceedings of this kind, ii. 432. 
 always admitted when required by justice, ii. 432. 
 none admitted in Supreme Court, ii. 432. 
 but Supreme Court may remand case for, ii. 432. 
 ANSWER IN ADMIRALTY, ii. 422-428. 
 should correspond with libel, ii. 422. 
 
 caption should state court, judge, parties, and kind of case, ii. 422. 
 and answer libel, article by article, ii. 422. 
 and each interrogatory therein, ii. 422. 
 in the same order as numbered, ii. 422. 
 admissions to be unreserved, ii. 422. 
 not by way of hypothesis, ii. 422. 
 belief may be stated and then defence, ii. 423. 
 no rules similar to those in special pleading, ii. 423. 
 must be precise, ii. 423. 
 
 and consistent with facts, or knowledge of facts, ii. 423. 
 all facts to be set forth in due form, ii. 423. 
 
 new clause in shipping articles, if relied upon, must be specially pleaded, ii. 423. 
 defendant may rest upon mere denial of plaintiff's allegations, ii. 423. 
 or upon new matter, ii. 423, 
 to be verified by oath, ii. 423. 
 
 except where sum is less than fifty dollars, ii. 423, 424. 
 this exclusive of costs, ii. 424. 
 but court may order otherwise, ii. 424. 
 defendant may object to respond, ii. 424. 
 
 because answer may expose him to prosecution for crime, ii. 424. 
 or for penalty or forfeiture for penal offence, ii. 424. 
 may require answer of libellant to interrogatories, ii. 424. 
 subject to like exceptions, ii. 424.
 
 782 INDEX. 
 
 ANSWER IN ADUmAJjTY — Continued. 
 
 court may adjudge plaintiff in default, for refusal, ii. 424. 
 
 and dismiss libel, ii. 424. 
 
 or compel answer by attachment, ii. 424. 
 
 or take subject-matter as confessed, ii. 424. 
 
 may be dispensed with, if libellant is out of country, ii. 424. 
 
 or unable by sickness or casualty to answer, ii. 424. 
 
 or court may order commissioner to take, ii. 424. 
 
 may be verified by oath of proctor or agent, ii. 424. 
 
 who must make oath of their authority, ii. 424, 425. 
 
 nothing in admiralty answering precisely to plea in abatement, ii. 425. 
 
 or demurrer and exceptions, ii. 425. 
 
 but they exist so far as of substance, ii. 425. 
 
 exceptions to libel filed as such, ii. 425. 
 
 either to jurisdiction, or for insufBciency of libel, ii. 425. 
 
 either in form or substance, ii. 425. 
 
 exceptions for frivolity and impertinency, ii. 425. 
 
 unintelligibleness and impropriety, ii. 425. 
 
 prior judgment may be pleaded, ii. 425, 426. 
 
 and settlement by compromise, ii. 426. 
 
 may admit facts of libel and deny sufficiency in law, ii. 427. 
 
 want of jurisdiction arising from subject-matter, fatal, ii. 427. 
 
 if brought to notice of court at any stage prior to remanding of case by 
 
 Supreme Court, ii. 427, n. 1. 
 but if a mere personal exemption, answer may be waiver of objection, ii. 427. 
 suit may be brought in State court and discontinued and suit brought in ad- 
 miralty, ii. 427. 
 pendency of another action on the same cause in foreign court, not good plea 
 as in abatement, ii. 427. 
 
 State court foreign in this respect to United States court, ii. 427. 
 plea should show that other court has jurisdiction, ii. 427, 428. 
 
 and should be verified by affidavit, ii. 428. 
 
 errors to be corrected by supplemental answer, ii. 428. 
 
 or by amendment, ii. 428. 
 
 adverse party not permitted to profit by error made innocently, ii. 428. 
 
 new matter in avoidance of, to be set up by amended libel, ii. 428. 
 
 no double pleading in admiralty, ii. 428. 
 
 distinct counts to be met with distinct answer, ii. 428. 
 " APOSTLES," meaning of, in appeals, ii. 502, n. 7. 
 APPAREL, of ship, what included in the term, i. 78. 
 APPEALS, ii. 204 - 217 ; ii. 496 - 508. 
 
 judgment and decree of court suspended thereby, ii. 204. 
 
 whole cause heard anew in appellate court, ii. 204. 
 
 both as to law and fact, ii. 204. 
 
 no cause res adjudicata till final sentence of appellate court, ii. 204. 
 
 statutes passed before final decree to be considered, ii. 204. 
 
 and cases, arising on statutes repealed or expired before final decree, at an end, 
 ii. 204, 205, 
 
 but court, where property remains, may make proper order concerning it, 
 ii. 205, 206.
 
 INDEX. 783 
 
 APPEALS — Continued. 
 
 effect of joinder of parties on right of, ii. 206. 
 
 parties unable to join at law, may join in admiralt}^ ii. 206. 
 
 but no party can appeal, unless amount of separate claim gives right, ii. 206. 
 
 or unless opposite j^arty has recovered against him separately an equal amount, 
 
 ii. 206. 
 a whole crew may join in libel for wages, but only those whose separate claim 
 
 amounts to fifty dollars can appeal, ii. 206. 
 if interest of separate parties is joint, an appeal lies, ii. 206. 
 though amounts belonging to each is less than amount required, ii. 206, 207. 
 in salvage claims, no appeal lies to Supreme Court where amount due from 
 
 any one owner is less than two thousand dollars, ii. 208. 
 though the whole amount exceeds that sum, ii. 208. 
 though suit is in rem against all property saved, yet rights and liabilities of 
 
 each owner are distinct, ii. 208. 
 but salvors may all appeal, if united interest amounts to requisite sum, ii. 208. 
 provided amount due from any one owner was sufficient, ii. 208. 
 only salvors resting on community of service, merit, and demand, should join, 
 
 ii. 208. 
 as to advantage of appealing by one party when other appeals, ii. 208, 209. 
 in libels for maritime trespass, with several decree, each defendant has same 
 
 right of appeal as if libels had been separate, ii. 210. 
 and if decree is joint, rule the same, if defendants sever in their answers, 
 
 ii. 210. 
 or if answer, though joint, be a denial in nature of plea of general issue, ii. 210. 
 but if they join in justification, they must join in appeal from joint decree, 
 
 ii. 210. 
 must be joint when interest is joint, ii. 210, n. 1. 
 and several, where separate, and represented by independent parties in same 
 
 suit, ii. 210, n. 1. 
 as to joinder in cases of tort and trespass, ii. 211, n. 
 desertion of appeal, ii. 211. 
 
 usual in circuit court, in desertion of appeal, to affirm decree, ii. 211. 
 or to remit cause to court below for final proceedings, ii. 211. 
 appeal from lower court may lie on execution of mandate of higher, ii. 212. 
 but nothing prior to mandate comes before appellate court, ii. 212. 
 all prior proceedings, and evidence, in hands of appellate court, ii. 212. 
 in general decree of restitution by Supreme Court, no new claims can be set up 
 
 in court below, ii. 212, 213. 
 even if they would have been allowed if asserted before original decree, ii. 
 
 213. 
 interest if not mentioned in decree will not be allowed, ii. 213. 
 if bond is given in district court to pay in case of condemnation there, and an 
 
 appeal to circuit court and condemnation there, bond forfeited, ii. 213. 
 appeal takes up whole case, ii. 213. 
 which will be decided on its merits, ii. 213. 
 
 appellate court unwilling to vary decree of lower, in respect to salvage, ii. 213. 
 reason of this, ii. 213. 
 useless to appeal on questions of fact when both district and circuit courts 
 
 have agreed, ii. 214.
 
 784 INDEX. 
 
 APPEALS — Continued. 
 
 where evidence is nicely balanced circuit court will not interfere with deci3ion 
 
 of court below, ii. 215. 
 must be from final decree, ii. 215. 
 
 decree dismissing libel in rem for want of prosecution is not, ii. 215. 
 so of determination of assessor as to damages, ii. 215. 
 or master's decision, ii. 215. 
 so, of decree accepting, ii. 215. 
 so, if property is ordered to be restored with costs and damages, no appeal 
 
 lies till damages are ascertained, ii. 215, 216. 
 "final decree," definition of, ii. 216. 
 what is a " final" decree, ii. 216. 
 what is, in case of prize, ii. 216. 
 
 decree in respect to discretionary matters not appealable, ii. 217. 
 instances of, ii. 217. 
 provisional decrees, ii. 217. 
 
 value of property at time of seizure determines right of, in such cases, ii. 217. 
 See Supreme Court, ii. 191 - 193; Circuit Court, ii. 193-196; District Court, 
 
 ii. 196 - 203 ; Seizures, ii. 218 - 222. 
 APPEALS, manner of taking, ii. 496 - 508. 
 
 I. From District to Circuit Court, ii. 496-499. 
 
 in cases of admiralty and maritime jurisdiction by act of 1789, ii. 496. 
 
 lie where sum in dispute exceeds fifty dollars, ii. 496. 
 
 this exclusive of costs, ii. 496. 
 
 to be made to next circuit court, ii. 496. 
 
 as to meaning of word " appeals," ii. 496, 497. 
 
 begun next after entry of decree in district court, though term of district court 
 
 is not ended, ii. 497. 
 to be taken in open court, ii. 497. 
 before adjournment without day, ii. 497. 
 unless otherwise provided by rule of district court, ii. 497. 
 party not bound to appeal before entry of decree, ii. 497. 
 if not drawn up till vacation, not to be entei'ed as of preceding terra, ii. 497. 
 but continued to next term, ii. 498. 
 rule in Massachusetts, ii. 498. 
 
 construction of this rule, ii. 498. • 
 
 if appellant desert, circuit court may remit case, ii. 498. 
 or affirm decree of district court, ii. 498. 
 if wrongfully disallowed by district court, appellant may file transcript of 
 
 record in circuit court, ii. 498, 499. 
 and move court for leave to enter, ii. 499. 
 or may apply for mandamus, ii. 499. 
 mandamus to be directed to judge, not to clerk, ii. 499. 
 
 II. From Circuit to Supreme Court, ii. 499-508, 
 
 may be taken at any time within five years after rendering of decree, ii. 499. 
 
 if to operate as supersedeas, to be taken, and copy lodged in clerk's office, and 
 
 bond filed, witliin ten days, ii. 500. 
 obligation of l)ond that appellant will prosecute appeal, ii. 500. 
 and answer for damages and costs, if he fails to make, ii. 500. 
 damages does not mean damages for delay, ii. 500.
 
 INDEX. 785 
 
 APPEALS — Continued. 
 
 penalty must be sufficient to cover amount of judgment, ii. 500, 501. 
 
 provisions of, ii. 501. 
 
 sufficiency of, determined in first instance by judge signing citation, ii. 501. 
 
 after allowance of appeal. Supreme Court may take cognizance, ii. 501. 
 
 all appellants to join in appeal, ii. 501. 
 
 but need not join in bond, ii. 501. 
 
 if transcript shows bond not to be filed, appeal dismissed, ii. 501, 502. 
 
 appellant, when entitled to supersedeas, ii. 502. 
 
 ten days do not begin to run till final entry of decree, ii. 502. ^ 
 
 need not be in writing, or taken in court, ii. 502. 
 
 if in open court, no citation necessary, ii. 502. 
 
 otherwise citation must be signed by judge of circuit court or of Supreme 
 
 Court, ii. 502. 
 provisions of, ii. 502. 
 exception to, ii. 502. 
 
 otherwise citation to be signed by judge, not by clerk, ii. 503. 
 citation should name all parties to suit, ii. 503. 
 and be served before commencement of term, ii. 503. 
 
 citation to be served personally on appellee or his attorney of record, ii. 504. 
 attorney cannot, after decision below, withdraw name to avoid service, ii. 504. 
 if attorney is dead not sufficient to sei-ve on any representative of, not appearing 
 
 of record, ii. 504. 
 service on husband of female married after judgment, sufficient, ii. 504. 
 if not served, appellee should move dismissal of appeal, ii. 504. 
 , so if served irregularly, ii. 504. 
 
 entry of appearance a waiver of irregularity, ii. 504, 505. 
 
 issue and service of citation no part of record of court below, ii. 505. 
 
 no evidence without the record admissible to disprove it, ii. 505. 
 
 but if defective, should be corrected by certiorari, ii. 505. 
 
 appeal may be taken at any time within five years, ii. 505. 
 
 writ of error to be filed in Supreme Court before expiration of time, ii. 505. 
 
 though issuing from circuit court in season, ii. 505. 
 
 whether same construction applicable to appeal, ii. 505. 
 
 if suit is, dismissed for irregularity in taking appeal, another may be taken 
 
 within five years, ii. 505. 
 same case cannot be docketed again without another appeal, ii. 505. 
 bond to be given to clerk of Supreme Court for fees, ii. 507. 
 penalty thereof, two hundred dollars, ii. 507. 
 or a deposit of that amount to be made, ii. 507. 
 record must be complete, ii. 507, 508. 
 provisions of new acts relating to, ii. 508. 
 See Rules of Practice, — Appendix. 
 APPEARANCE, effect of, ii. 427. 
 APPRAISEMENT IN ADMIRALTY, ii. 416. 
 APPRENTICE, share of, in salvage, ii. 301. 
 APPURTENANCES, of ship, i. 78 - 82. See Sale of Ship, VL 
 ARKANSAS, statute of, allowing actions against vessels by name, i. 119, n. See Part- 
 
 Owners, VIII. 
 ARREST, of ship or master, bottomry bond given to avoid, i. 153, and n., 154, and n. 
 VOL. II. 50
 
 78(5 INDEX. 
 
 ARREST. See Mesne Process, ii. 388 - 390. 
 
 ASSETS, marshalling of, to satisfy several bottomry bonds, i. 167, 168, and n. 
 
 marshalling of different, to satisfy one bottomry bond, i. 167. 
 ASSIGNEE of seaman's wages cannot maintain action in rem, ii. 186. 
 ASSISTANCE, uninjured ship bound to render in case of collision, i. 529. 
 
 even though injured ship caused the collision, i. 529. 
 
 this duty enjoined by statute in England, i. 529. 
 ASSUMPSIT. See Actions. 
 
 ATTACHMENT, foreign. See Mesne Process, ii. 392, 394. 
 AVERAGE. See Ge>ie)-al Average, i. 338, 478. 
 
 accustomed, i. 381, 402. 
 AUCTION, sale by, if fairly conducted, strong evidence of market value of goods, 
 
 i. 273. 
 
 B. 
 
 BAGGAGE of passengers does not contribute in general average, i. 455, 
 BAIL, on deliveiy of the property. See 31esne Process, ii. 406 - 416. 
 BALLAST, whether term furniture includes, i. 78, n. 
 
 when to be supplied by ship-owner, i. 290. 
 BANK BILLS do not contribute to general average unless carried as merchandise, 
 
 i. 457. 
 BANKRUPTCY. See Insolvency. 
 BARBERS cannot sue in admiralty for wages, ii. 184. 
 BARGE, necessary to steamboat, hire of, lien as material, ii. 148. 
 BELLIGERENT. See Military Salvage, ii. 31 5 - 321 . 
 BILLS IN EQUITY, filed on account of profits, who must be parties to, i. 92. 
 
 between part-owners for adjustment of accounts, i. 117. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, origin of, i. 6. 
 
 if note of one part-owner is dishonored, other part-owners liable, except, i. 104. 
 
 when payment, i. 104, n., 305. 
 BILLS OF LADING. See Carriage of Goods, III., VIII., i. 184 - 203. 
 
 usually given, notwithstanding charter-party, i. 287, 288. 
 
 effect of, when so given, i. 288. 
 
 if master sign, stipulating to carry goods at less rate of freight than that con- 
 tained in charter-party, i. 288, and n. 
 
 effect of, upon the right of stoppage in transitu, i. 504 - 512. See Stoppage in 
 Transitu. 
 
 indorsement and delivery of, as collateral to respondentia bond, i. 166. 
 
 ship-owner not liable for goods unless nature and value are declared in, ii. 123. 
 BILLS OF SALE, i. 59-67. See Sale of Skip. 
 
 what recital must contain, i. 32. 
 
 none necessary independent of statute, i. 53, 58, 59, n. 
 
 when may be executed, i. 59, n. 
 
 grand, i. 59, 60, 67. 
 
 misrecital of certificate in, i. 60, n. 
 
 recording of, i. 60. 
 
 parol evidence to vary, i. 86, 87, and n. 
 BLOCKADE suspends or annuls contract for carriage of goods, i. 331, 332. 
 
 all citizens to take notice of, i. 332.
 
 INDEX. . 787 
 
 BLOCKADE — Continued. 
 
 intended, rights of parties, i. 333. 
 
 actual, what constitutes, rights and duties of parties, i. 333, and n. 
 breach of, i. 333, 334. 
 
 sailing to blockaded port with intention of entering, i. 334, 335 ; ii. 22. 
 seizure for breach of, ii. 22. 
 
 how far act of master in attempting to enter blockaded port is act of owners, ii. 22. 
 BOATS, as appurtenant to ship, i. 79, n. 
 BOND, registration, i. 34. 
 
 bottomry. See Bottomry, Hypothecation by. 
 BOTTOMRY, HYPOTHECATION, BY, i. 132-169. 
 I. Of a Bottomry Bond, i. 132-138. 
 how analogous to mortgage, i. 132, 
 what it is, i. 132. 
 distinguished from pledge, i. 132. 
 
 possession necessary to pledge, i. 132. 
 not to hypothecation, i. 132. 
 jurisdiction of admiralty in, i. 133. 
 validity of, made at home port, i. 133. 
 enforcement of, by common law process, i. 133. 
 effect of U. S. statute of 1850, and of State statutes, requiring registration, 
 
 upon unrecorded bottomry bond, i. 134. 
 its essentials, i. 134. 
 
 binds the ship if it arrive in safety, i. 134. 
 of no force if ship is lost, i. 134. 
 what words sufficient to create, i. 134, n. 4. 
 as "one month after the ship arrives at her port," i. 134, n. 4. 
 and "after my arrival," i. 134, n. 4. 
 
 to make ship liable " whether she do or do not arrive at London," i. 134, n. 4. 
 reason for allowing maritime interest, i. 135, and n. 
 whether it may provide for common interest, i. 135, and n. 
 and for payment by owner, whether ship safe or lost, i. 135. 
 permitted by law-merchant, i. 135. 
 if none given, lender has lien on ship in addition to common law remedy, 
 
 i. 135. 
 owner liable for money borrowed, if necessity is caused by fault of master, 
 
 i. 135, n. 2. 
 bond with simple interest, binding ship, to be paid at all events, i. 136, n. 
 payable not alone when ship arrives safely, i. 137. 
 but when voyage is broken up by third party, i. 137. 
 by owner, i. 137. 
 by master, i. 137. 
 by deviation, i. 137. 
 but not from necessity, i. 137. 
 by a sale, i. 137. 
 
 by intended wreck, i. 137, and n. 
 not necessary to say in, that ship is not to be put to any other uses or purposes, 
 
 for the law implies this, i. 137, 138. 
 lien of lender on, free from laches, good against a bond Jide purchaser, without 
 notice, i. 138.
 
 788 INDEX. 
 
 BOTTOMRY, HYPOTHECATION BY — Continued. 
 
 maritime interest, if requisite, may be presumed to be included in principal 
 
 sum, i. 138. 
 should describe risk assumed by lender, i. 138. 
 what sufficient to indicate this, i. 138. 
 risk such as to justify maritime interest, i. 138. 
 debt on, survives with maritime interest if ship is lost by peril or cause not 
 
 enumerated, i. 138. 
 if lost through misconduct of owner or master, i. 138. 
 n. Of Bottomry Bonds made bt the owner, i. 138, 139. 
 in home ports, i. 138, and n. 6. 
 
 if owner is also master, i. 138, n. 6. 
 no necessity requisite, i. 138, 139. 
 
 owner may make, hypothecating ship before sailing on her first voy- 
 age, i. 139. 
 when they are legal loans for usurious interest, i. 139. 
 if colorable and for purposes of getting usurious interest, i. 139. 
 question for jury, i. 139. 
 
 marine interest, no limit or measure to, i. 135, 139. 
 abroad, generally payable next voyage, i. 139. 
 to be described with reasonable accuracy, i. 139. 
 if under control of government, not invalid if voyage not described, 
 i. 139, n. 5. 
 m. When the RIaster may make a Bottomry Bond, i. 140 - 147. 
 only abroad, i. 140. 
 
 this power analogous to his power to sell, i. 140. 
 requires a less necessity, i. 140. 
 
 any person lawfully master, however appointed, i. 140. 
 if appointed by underwriters, i. 140, n. 3. 
 by consignees of cargo, i. 140. 
 hy foreign merchant, i. 140. 
 by charterer, i. 140. 
 by consul, ii. 18, 19. 
 master of transport hired by government, i. 140. 
 
 of belligerent ship in foreign port by virtue of a cartel, i. 140. 
 upon belligerent ship, is discharged by its capture, i. 140, 141. 
 
 and will not be enforced in courts of captors, i. 141. 
 master, [(functus officio, cannot give, i. 141. 
 
 if ship captured and restored to owners, not a loss of ship, i. 141, and n. 
 condemned and sold, and proceeds restored to owner by decree, loss of ship, 
 
 i. 141. 
 and owner holds proceeds free from bondholder's claim on the bond, i. 141. 
 how bondholder may enforce his claim, i. 141, and n. 
 necessity must be real and a sufficient one, i. 141. 
 cannot make, for money borrowed for his own use, i. 141, and n. 
 nor so pledge the freight, i. 142. 
 
 otherwise if he is both master and mortgagor in possession, i. 142. 
 must be a necessity of the ship, i. 142. 
 cannot make, of ship for freight or cargo, t. 142. 
 what a sufficient necessity, i. 142.
 
 INDEX. 
 
 789 
 
 BOTTOMRY, HYPOTHECATION BY — Continued. 
 
 in foreign port to enable him to return home, i. 142. 
 
 if owner can act, master may not judge of the necessity, i. 142. 
 
 whether master may bottom in one State, if home port in another, i. 142. 
 
 if in British provinces, and owner in Maine, i. 142. 
 
 must be a foreign port in sense of distant port, i. 142. 
 
 may, where impossible to communicate with the 'owners though residing in 
 
 same country, i. 142, 143, n. 
 also pledge credit of owners, i. 143, n. 
 but not if delay would work no injury, i. 143, n. 
 what places are foreign ports, i. 143, n. 
 New York, as to St. Johns, N. B., i. 143, n. 
 if telegraph is between the places, i. 143, n. 
 given by consent of owners on ship, freight, and cargo, if owners of cargo 
 
 refuse to advance money, i. 143, n. 
 master must at least attempt to communicate with owners, i. 143, n. 
 where fact of advertisement for loan is known to owner of cargo but he has 
 
 no direct communication, i. 144, n, 
 master has no power, if he has funds of owner within his reach, i. 143. 
 or if he can borrow on owner's personal credit, i. 144. 
 or if consignee with funds of owner, or agent there, i. 144. 
 or perhaps if master have funds of his own, i. 145. 
 certainly if funds of owner on board, i. 145, n. 
 or if master have goods on board and can also procure money at port of dis- 
 tress, i. 145, n. 
 but if latter element wanting, i. 145, n. 
 
 what owner must do if necessity for supplies, &c., is once made out, i. 144, n. 
 non-existence of, and inability to get, funds, equal to distress, i. 145, n. 
 whether he can make to himself, i. 145. 
 
 or charge more than legal interest for use of his own money, i. 145. 
 not bound, and perhaps has no right to take money on board belonging to 
 
 shippers, i. 145. 
 reasonable discretion must exercise in this, that there may be the least sacrifice, 
 
 i. 145, n. 2. 
 if part-owner, or agent of part-owner, present, i. 146. 
 whether to the agent himself, i. 146, n. 2. 
 to secure former debts of owner, i. 146, and n. 147. 
 if given by owner, merges other debts, i. 147. 
 master may give to a consul in a foreign country, when, i. 147. 
 duty of master to raise money upon, to avoid selling ship, i. 72. 
 IV. Duty and Obligation op Lender on Bottomry, i. 147-149. 
 lender must see that necessity exists, i. 147, 157, n. 
 
 what can never be presumed in such cases, by, i. 147, n. 4. 
 what inquiries necessary by, i. 147, n. 4. 
 
 not bound to inquire into the expediency of incurring expense of 
 repairs with reference to owner's interest, i. 147, n. 4, 148, n. 
 in an action on bond, production, and proof of execution, will not entitle 
 holder to a decree, i. 148, n. 
 
 must prove necessity and exhibit account of items, i. 148, n. 
 if mistaken, as to necessity after due inquiry, i. 148.
 
 790 INDEX. 
 
 BOTTOMRY, HYPOTHECATION BY — Continued. 
 
 if he connive at any fraud of master, this avoids bond, i. 148. 
 
 and he loses his lien on ship for money advanced, i. 148. 
 if not conusant of master's fraud, i. 148. 
 
 not bound to see that master applies funds to ship's necessities, i. 148. 
 if owner resists payment on account of fraud, burden of proof, i. 148. 
 proper inquiries presumed, i. 148. 
 master not competent witness for libellant to prove necessity of repairs, and 
 
 why, i. 148. 
 but competency now generally admitted, i. 149. 
 especially if released, i. 149, n. 
 
 if lender in debt to shipowner, must apply debt to ship's necessities, i. 149. 
 and cannot, by advancing, bind ship with maritime interest, i. 149. 
 if he connives with master to send ship on new voyage, avoids bond, i. 149. 
 master may thus raise money to perform what voyages, i. 149, and n. 5. 
 V. When Lender mat take Additional Security, i. 149- 152. 
 
 lender may take, when discharge of bond discharges the security, i. 149. 
 
 repayment more certain if ship arrives, i. 149. 
 
 gives no claim if ship lost, i. 149, 150. 
 
 property mortgaged to secure a bond, mortgage defeated by whatever avoids 
 
 the bond, i. 150, n. 
 bottomry bond, when gives any claim against owners personally, i. 150, andn. 
 written so as to confine lender to ship, i. 150. 
 right of owner to abandon to lender, on ship's arrival, and exempt 
 
 himself from responsibility, i. 151. 
 whether parties might make different bargain, i. 151. 
 by Rule 18, of Supreme Court of U. S., confined to claim on property 
 
 and suits in rem, except, i. 151, and n. 
 in case of fraud of master, i. 151, n. 
 if ship prevented from arriving by wrong of master or owner, remedy 
 
 against them personally, i. 151, n. 
 or if master or owner destroys the ship, i. 151. 
 or if by their fault, lender lost the security of ship, i. 151. 
 under this rule, must be distinctly for owner's wrong doing, to sustain 
 action against him, i. 151, n. 2. 
 enforced against proceeds of ship, the cargo of which had been sold, and that 
 
 transshipped, i. 151, n. 2. 
 owner by abandonment may make total loss to insurer, i. 151. 
 but not against bottomry bondholder, i. 151. 
 no salvage or average upon bottomry bond, i. 151. 
 except by special contract, i. 151, 152. 
 
 and then contributes only on value of property hypothecated without maritime 
 interest, and is entitled to contribution and salvage, i. 152. 
 VI. Of a Bottomry Bond for Supplies and Repairs, i. 152-154. 
 
 if so given, good when supplies originally intended to be furnished on credit 
 
 of ship, i. 152. 
 not good when advances made on personal credit of master or owner, i. 152, 
 
 n. 3. 
 if advances made without any original understanding or contract, presumption 
 that bond contemplated, i. 152, n. 3.
 
 INDEX. 
 
 791 
 
 BOTTOMRY, HYPOTHECATION BY — Continued. 
 
 valid, if given to cover sums advanced with no contemplation of, and for 
 other sums with such contemplation,!. 152, n. 3. 
 
 given for expenses of investigating a mutiny and restoring master to his com- 
 mand, when the vessel arrived in distress, and the crew in a state of mutiny 
 and no mention made of bond at outset, valid, i. 152, n. 3, 153, n. 
 
 invalid, if original purpose to furnish on personal credit of master or owner, 
 or hoth, i. 153. 
 
 if no other way of liberating ship from such debt in a foreign port, valid, if 
 
 made in good faith, i. 153. 
 presumption in favor of, and against personal credit, if lien on ship by law of 
 
 country where bond given, i. 153, n. 2. 
 master not justified in giving, upon a mere threat to arrest ship for pre-existing 
 
 debt, i. 153, n. 2. 
 whether he can hypothecate, in any case, where vessel is or might be arrested, 
 
 i. 153, n. 2. 
 made by master to release vessel, and lender knowing to be so used, held 
 
 invalid when, i. 154. 
 cannot be given to release master from arrest, i. 154. 
 though arrested for debt contracted for ship, as master, i. 154. 
 invalid, if attaching creditor is obligee, when given to release ship, i. 153, 154. 
 the reasons therefor, i, 154, n. 2. 
 
 VII. Of a second Bottomry Bond, i. 155. 
 
 funds necessary to pay first may enter into, i. 155. 
 
 holders of, stand as assignees of first, i. 155. 
 
 how far good, if first bad, i. 155. 
 
 given to discharge a prior loan, i. 155, n. 
 
 application of loan as by borrower, does not affect the lender, in good faith, 
 
 i. 15,5, n. 
 by owner, to secure an old debt, how regarded, i. 155, n. 
 by second master, of a sum equal to amount borrowed by first master, 
 
 1. 155, n., 156, n. 
 
 VIII. To WHOM A Bottomry Bond may be made, i. 155-158. 
 
 ' whether to consignee, or to one holding to ship-owner relation of agent, i. 155, 
 156, n. 
 if consignee has funds of owner, cannot lend his own on, i. 156, n. 
 propriety of consignee taking, i. 156, n. 
 not bound to risk his property without taking, i. 156, n. 
 given to consignee of cargo and agent of charterer, 1. 156, n. 
 when an agent may take, i. 156. n. 
 when consignee acts fraudulently, i. 157. 
 given to consignee, what care and vigilance necessary, i. 157. 
 what must be shown, i. 157. 
 
 consignee held to strict accountability of an agent, i. 157. 
 to agent, no right to ship his own property, which might be dangerous, and 
 
 when it became so, charge owner for relanding, i. 157, n., 158, n. 
 given to agent, his duty, i. 158. n. 
 
 all transactions connected with the giving, how viewed by court, i. 156. 
 lender on, bound to see that necessity exists, i. 157. See ante, IV. 
 given to consignee by master appointed by him, i. 157, 158.
 
 792 INDEX. 
 
 BOTTOMKY, HYPOTHECATION BY — Continued. 
 to charterer, same rules as above, i. 158. 
 
 to a part-owner attempting to bind other owners to pay extra interest for re- 
 pairs not valid, i. 158. 
 IX. A Bond may be good in part and a-oid in part, i. 138, 159. 
 given for sums of money in items, some lawful, others not, i. 158. 
 court will analyze claims, and require proof of each, i. 159. 
 and decree in favor of those only properly substantiated, i. 159. 
 where the larger sum not properly subject of bond, i. 159, n. 2. 
 whether courts of law have this power, i. 159. 
 X. Of the Hypothecation of the Freight, i. 159, 160. 
 
 hypothecation of ship not necessarily hypothecation of freight, i. 159. 
 
 master may hypothecate freight as he may under same circumstances the ship, 
 
 i. 159. 
 general hypothecation of freight in foreign port construed to include what, 
 
 i. 159. 
 whether earned or not, i. 160. 
 if it has not been paid to master or owner, i. 160. 
 of subsequent voyage, held liable, i. 160, n. 
 liable to contribute po rata with ship, i. 160, n. 
 freight earned by sub-shippers, i. 160, n. 
 XI. Of the Construction of a Bottomry Bond, i. 160-164. 
 preferred to any other lien, i. 160, 138, n. 
 except prior claims for damage, when, i. 160, n. 3. 
 and lien for seamen's wages, i. 160. 
 
 wages earned before a salvage service not entitled to a priority, 
 
 i. 160, n. 4. 
 on outward voyage before bond, i. 161, n. 
 on several voyages, lien extends to all, i. 161, n. 
 and liens of material men, for repairs indispensable to ship's safety, 
 i. 160, 161. 
 reason of rule giving priority, i. 161. 
 
 exceptions to rule, i. 161. 
 several given, last takes precedence of former, i. 161. 
 if at same place and on same voyage and risk, i. 161, n. 3. 
 if of several bonds, some are on ship, some on freight, and some on cargo, 
 
 marshalling of assets, i. 161, n. 3. 
 privilege of priority confined to bonds given under necessity in a foreign 
 
 port, i. 162, D. 
 holder of, discharging demand of seamen for wages, becomes assignee of their 
 
 claims and takes their places, i. 161, 162. 
 has a right to pay them and so stand, i. 162, n. 
 cannot exact of them formal assignment, i. 162, n. 
 
 nor payment of his proctor's fees, i. 162, n. 
 nor upon offer to pay wages require them to defer prosecution, 
 i. 162, n. 
 whether owner's assent required, or some security, i. 162. 
 what lender on, may include in his claim, i. 162. 
 advances made for indispensable repairs and supplies, i. 162. 
 from reason that it saved the ship, construed liberally, i. 162.
 
 INDEX. 793 
 
 BOTTOMRY, HYPOTHECATION BY — Contmued. 
 
 intention of parties, if possible can-ied into effect, i. 162. 
 
 necessity of in mercantile affairs, i. 162, n. 4. 
 
 creature of necessity and distress, i. 162. 
 
 lender acting in good faith protected from technical objection, i. 162. 
 owner, against oppression, i. 163. 
 
 "of a high and sacred character," meaning of phrase discussed, i. 163, n. 
 
 principles of equity applied to, by admiralty courts, i. 163. 
 
 no limits to maritime interest, i. 139, 163. 
 
 court of admiralty will reduce it when, i. 163. 
 
 practice in England to refer items of bond and premium to i-egistrar and mer- 
 chants, i. 163, n. 4. 
 
 power of court upon their return, i. 163, n. 4. 
 
 when legal interest only is allowed, i. 163, 164. 
 
 when lender should enforce and realize his lien, i. 164. 
 
 permitting ship to voyage about with lien unrecorded, i. 164. 
 
 does not create an absolute interest in ship, i. 164. 
 
 nor give indissoluble lien, i. 164. 
 
 if lender delays enforcing lien unreasonable time, i. 164. 
 
 third party acquiring vessel without knowledge of lien, i. 164. 
 
 lender will be held to have waived- and lost lien, i. 164. 
 
 suit on, commenced and abandoned, and another suit on same bond, 
 i. 164. 
 
 when ship arrested and damages pronounced for, and second action subse- 
 quently commenced for subsequently discovered damage, i. 164, n. 3. 
 XII. Of a Respondentia Bond, i. 165- 167. 
 
 master may hypothecate part or whole of cargo, i. 165. 
 
 only a part can be sold to raise funds, and reason thereof, i. 165. 
 
 hypothecation effected by a respondentia bond, i. 165. 
 
 usual form, i. 165. 
 
 same to goods as bottomry bond to ship, i. 165. 
 
 master no authority to give bond on cargo alone, i. 165, n. 2. 
 
 if he does, ship and freight first liable, i. 165, n. 2. 
 
 may be made by owner of goods at home without any necessity, i. 165. 
 
 so made as to take up former bond, i. 165. 
 
 not necessary that money so raised should be expended for or about the goods 
 i. 165. 
 
 if made by master, can be only from necessity, i. 165. 
 
 loan on, is a loan on maritime interest, i. 165. 
 
 and gives lender no claim if goods lost, i. 165, 166. 
 
 where difference between amount lent on, and goods on board, i. 166, n. 
 
 obligee in, holds goods as collateral and as transferred by indorsement and 
 delivery of bills of lading, i. 166. 
 
 and has constructive possession thereby, i. 166. 
 
 contract gives no lien upon cargo, if the cargo is to be sold free of lien and 
 proceeds returned, i. 166, n. 2. 
 
 return cargo not in existence at time of giving, cannot be subjected to a lien, 
 i. 166, n. 2. 
 
 bottomry bond on " the ship and freight " binds only them, and excludes 
 cargo, i. 166.
 
 794 INDEX. 
 
 BOTTOMRY, HYPOTHECATION BY — Continued. 
 
 even if master compelled to take up the money on " said schooner, her cargo 
 
 and freight," i. 166. 
 whether if portion of cargo is pledged there is a right of contribution, as against 
 
 ship-owners and other shippers, i. 166, 167. 
 when ship would be responsible in first place, i. 166. 
 
 rest of cargo would contribute when ship could not be made to pay, i. 167. 
 shippers contributing, to recover from the ship, i. 167. 
 owner of goods sold not entitled to recover what they would have realized, at 
 
 port of delivery unless ship arrives, i. 167, n. 
 it is necessary therefore to aver ship's arrival, i. 167, n. 
 XIII. Some special Rules in Regard to Bottomry Bonds, i. 167 - 169. 
 in payment of, assets to be marshalled, i. 167. 
 
 ship-owner's property first applied, i. 167, 168. 
 money of master next, i. 168. 
 and then goods of shipper, i. 168. 
 
 both ship and freight liable before cargo, though bond given on cargo 
 alone, i. 168, n. 
 what constitutes the principal in making up decree, i. 168. 
 legal interest added thereto from what time, i. 168. 
 
 interest allowed in England only on bond, and not on bond and in- 
 terest, i. 168, n. 2. 
 after judgment, interest allowed when, i. 168, n. 2. 
 when legal holders reside out of the country and no agent, i. 168, 
 n. 2. 
 when several concurrent bonds given if property will not pay all, i. 168. 
 will be paid pro rata, though different bonds bear different dates, i. 168. 
 in admiralty generally regarded as negotiable instrument, and payment en- 
 forced by holder, i. 163. 
 but guaranty of payment by indorsement does not extend to maritime in- 
 terest, i. 168, n. 4. 
 on ships in service of foreigners, trading within limits of East India Company's 
 
 charter, void, i. 168, n. 
 belonging to English subjects, require to be made only on ship and cargo, 
 
 i. 169. 
 jurisdiction exercised over, in England, by equity and admiralty courts, i. 169. 
 obtained from master by duress, void, i. 169. 
 that master was under a duress at time, no proof of bond being so given, 
 
 i. 169. 
 if it contain clauses proper to mortgages, not prevented from being bond, i. 169. 
 sale of ship to pay, i. 74. 
 BRACTON, i. 5. 
 
 BRIDGE, no action in rem lies against, for injuries received by vessel colliding with, 
 i. 532, n. 3. 
 
 nor by owners of, against vessel tn rem, i. 532, n. 4. 
 . BRITTON, i. 5. 
 BROKER, has lien on ship for what services, ii. 141, 142. 
 BROOKE, i. 5. 
 
 BUILDER, sale of ship by, i. 63-67. See Sale of Ship. 
 right of, to complete after sale, i. 64- 67, n.
 
 INDEX. 795 
 
 BUILDER — Continued. 
 
 certificate of, i. 63 - 67. 
 
 lien of, ii. 141, 155. 
 
 (See also Repairs and Supplies.) 
 BURDEN OF PROOF. See Evidence. 
 BURDEN OF VESSEL, provisions and stipulations as to in charter-party, i. 283. 
 
 effect if erroneous or fraudulent, i. 283. 
 
 C. 
 
 CANAL BOATS, when common carriers, i. 297, n. 2 and 3. 
 material men have no lien upon, ii. 142. 
 cannot be libelled for wages, ii. 185. 
 
 whether suit lies against, for breach of contract of affreightment, ii. 185. 
 CAPTAIN. See Master. 
 
 CAPTURE, by foreigners, when vessel cannot be registered after, i. 36. 
 when discharges bottomry bond, i. 141. 
 duty of master upon, ii. 22. 
 
 delay by, whether gives ground for demurrage, i. 312-316. 
 charterer liable for time lost by, i. 317. 
 
 when suspends and when annuls contract for carriage of goods, i. 336, 337. 
 See Salvage, ii. 260, 321. 
 CARGO, not appurtenant to ship, i. 81. n. 
 
 partnership in, and part-ownership in vessel, i. 91, 97, n., 98, n. 
 ship's husband no power to purchase, i. 110. 
 carriage of. See Carriage of Goods. 
 damages for inability to carry full cargo, i. 289. 
 what constitutes a full cargo, i. 291, and n. 
 contributory value of, in general average, i. 427-429. 
 power of master over, ii. 20-23. 
 respondentia of. See Bottomry and Respondentia. 
 CARRIAGE OF GOODS, i. 170. 
 
 I. Carriage of Goods on Freight, i. 170-183. 
 ship, importance of, i. 170. 
 
 public policy in regard to, i. 170. 
 system of liens, how affected by this policy, i. 1 70. 
 freight, meaning of; compensation for carriage of owner's goods, for carriage 
 
 of goods belonging to others, and for hire of ship, i. 171, 172. 
 reciprocal rights and liens of ship and cargo, i. 171. See also Charter Par- 
 ty, III. 
 
 ship owner undertakes : 
 
 how to carry goods, i. 171. 
 
 that ship is sea-worthy, i. 171. See i. 75, and also Seamen, IV. 
 and sufficiently manned, i. 171. 
 how to lade and deliver goods, i. 171. 
 to avoid delay and deviation, i. 171. 
 upon deviation, insurer's risk upon cargo ceases, and ship-owner liable as 
 insurer, i. 172, n. 
 
 even if loss does not arise from deviation, i. 172, n. 
 the rule of damages for injury to shipper by deviation, i. 173, n.
 
 796 INDEX. 
 
 CARRIAGE OF GOODS— Con^enwed. 
 
 intention to deviate, i. 173, n. 
 
 usage to deviate, i. 173, n. 
 
 if goods are laden on deck, i. 1 73, n. See also Deck. 
 
 goods sent by ship not specified, i. 173, n. 
 
 when shipper may proceed against ship-owner or ship, i. 172, 173, 
 
 and n. 1. 
 whether against ship, if owner not liable, i. 173, n. 1. 
 power of master to bind ship and owner by contract of affreight- 
 ment, i. 173, n. 
 lien of the shipper not waived by consignee's signing receipt of 
 
 goods " in good order," i. 173, 174. 
 to constitute waiver of damages, an intention to abandon remedy 
 must be stated, i. 174. 
 ship-owner's lien on goods properly transported, i. 173-179, 199, 200, 
 289, and n. 
 conflicting views as to the origin and nature of, i. 173, n., 174, 
 
 n., 175, n., 199, 200, and n. 
 the same, whether the goods are sent under a charter-party, or by 
 
 bill of lading, i. 175, n. 
 nature of, as distinguished from that on ship, i. 175, n., 199, n., 
 
 200, n. 
 distinguished from common-law liens requiring possession of the 
 
 property, i. 176, n., 177, n. 
 distinguished from that of common carrier, i. 177, n. 
 delivery of goods procured by fraud does not avoid, i. 177, n. 
 election of ship - owner to proceed against goods or shipper, 
 
 i. 178, n. 
 loss of waiver of, i. 178, n. 
 none for dead freight, that is, freight on unoccupied portion of 
 
 ship, i. 178, n., 179, n., 244. 
 right to carry goods once on board,, i. 176, 179, and n., 231, 232, 238. 
 damages, if shipper removes goods once on board, or breaks con- 
 tract to carry, i. 179, and n. 1, and 180, n. 
 if master re-demands goods after lading, i. 180, n. 1. 
 law of freight consists of what, i. 180. 
 
 difficulties in enforcement of lien of cargo on ship, at common law and in 
 equity, i. 180. 
 enforced in admiralty by process in rem, i. 181. 
 when enforced, as against third parties, i. 181. 
 "general ship," what, i. 181. 
 
 how advertised for freight and sailing, i. 181. 
 when so offered, how far owner bound; warranty, i. 181, and n. 
 notice of change, i. 182, 183, n. 1. 
 II. Delivery to the Vessel, i. 183. 
 
 reception of goods by master on board, or on wharf near by, binds ship to safe 
 
 carriage of goods, i. 183, n. 
 so if received by person authorized by owner or master, i. 183, n. 
 mere putting goods on board without delivery to some person, not good, 
 i. 185, n.
 
 INDEX. 797 
 
 CARRIAGE OF GOODS — Continued. 
 
 III. Bill or Lading, i. 184-203. See aho post, V. 
 its antiquity, i. 184. 
 its universality, i. 185. 
 where sometimes signed and delivered, and by whom, i. 185. 
 
 signed by clerk of owners, when master thereby bound, i. 185. 
 written receipt, prima facie evidence of reception, i. 186. 
 
 who signs receipt, i. 186, n. 2. 
 used by railroad companies and common carriers, i. 186. 
 properly a sea document, i. 186. 
 equal force in shipping and land carriage, i. 186. 
 what are the essential elements of, i. 186. 
 by whom it must be signed, i. 186, n. 
 what held not to constitute, i. 186, n. 
 
 not to be signed and delivered until goods are actually received, i. 187. 
 if only signed and not delivered, of no force, i. 187. 
 statements of, must be accurate, i. 187. 
 
 if signed before goods are on board, when it may apply to goods shipped after- 
 ward, i. 187. 
 when, only, master has authority to sign, i. 187. 
 
 binding effect of, upon owners, when signed before goods are received, i. 1 87, 188. 
 agreement for, i. 187, n. 1. 
 
 prima facie evidence of condition of goods therein described, at that time, i. 1 88. 
 loss or damage of goods in, presumption of law, carrier's fault, i. 188, n. 2. 
 
 burden of pooof on him to show otherwise, i. 188, n. 2. 
 if bill contains clause " loss by breakage or leakage excepted," burden of proof 
 
 on shipper to prove negligence of carrier, i. 1 89. 
 clause does not exempt from loss by carelessness, i. 190. 
 if loss is by excepted peril, shipper must show want of reasonable care in 
 
 carrier, i. 190. 
 its twofold character, as receipt and contract, i. 190. 
 as receipt, open to explanation, i. 190. 
 as between shipper and ship-owner as a receipt may be explained, 
 
 i. 190. 
 as between ship-owner and assignee for value, not to be explained, 
 
 i. 190. 
 as contract, not altered or explained by parol, i. 191, n. 
 who consignor in, i. 192. 
 who consignee in, i. 192. 
 a quasi negotiable instrument, i. 192, 193. 
 word "assigns " in, i. 193. 
 transferable by indorsement, how far, i. 193. 
 indorsement of, with delivery, prima facie evidence of transfer of goods, 
 
 i. 193. 
 indorsee of, cannot sue on, in his own name, except, i. 193, and n., 214, n. 1. 
 
 but may sue for detention or conversion when, i. 193, n. 
 when ship bound to deliver goods to indorsee of, i. 193. 
 meaning of indorsement "without recourse" on, i. 193, n. 4. 
 when indorsement and delivery of, binding, i. 193. 
 right of consignor in, to stop in transitu, i. 194, 196, 197.
 
 798 INDEX. 
 
 CARRIAGE OF GOODS — Continued. 
 
 indorsement of, as security for a pre-existing debt of consignee, i. 194. 
 indorsee of, for no consideration, no right as against a subsequent bond fide 
 
 transferee or attaching creditor, i. 194. 
 when agreement to assign a, is an assignment, i. 194. 
 if goods are shipped under agreement by which consignee makes advances 
 
 thereon, he has lien as against holder of second bill, i. 194. 
 though second bill was issued before delivery of first, i. 194. 
 property in goods covered by, how transferred without indorsement and de- 
 livery, i. 194, 195. 
 transfer of goods shipped without, i. 195, n, 
 
 effect of a condition in, or a condition in the indorsement, i. 195, 197. 
 signed in sets of three, i. 195. 
 disposition of the sets, i. 195, 196. 
 consignee in, when his title is complete, i. 195. 
 goods at the risk of, i. 195. 
 divested, by what, i. 195. 
 when indorsee of, same as consignee, i. 196. 
 bona fide indorsee of, for value, without notice, holds property as against party 
 
 who has paid value, on the faith of a contract to purchase, i. 196, n. 
 sent to a third party without indorsement, gives no rights to third party, but 
 
 simply a notice, i. 196. 
 consignor in, what risk he takes by making vendee, consignee, i. 197. 
 constructive delivery, i. 197. 
 
 stringent obligations on master, to deliver goods according to, i. 197. 
 evidence against master or owner, of what, i. 197. 
 how goods described in, i. 197. 
 
 "contents unknown," "said to contain," effect of in, i. 198. 
 if words, "containing, etc." added, master and ship held to deliver what, 
 
 i. 198. 
 right of lien reserved in, i. 198. 
 
 waived expressly or by implication in, i. 199, and n. 
 master bound to deliver goods, when, i. 198. See V. post. 
 shipper or consignee bound to pay freight, when, i. 199. 
 construction of, as to master's, or owner's lien, i. 199, and n. 
 charter-party, construction of, i. 199, n. See Charter-Party. 
 lien by, when lost, when waived, when retained, i. 198. See Charter- Partt/, III. 
 waived expressly, and by implication, i. 199, and n. 2. 
 waiver of lien, by stipulation that freight shall be paid subsequent to 
 
 delivery of goods, i. 199, and n. 2. 
 of ship on goods, maritime, or common law? i. 173, n. 174, n., and 
 
 175, n., 199, n., and 200, n. 
 if delivery is induced by fraud, i. 202. 
 consignee in, right to goods detained wrongfully by third person, i. 202. 
 
 as to disposal of goods and their proceeds, i. 202. 
 unusual stipulations in, i. 199-201. 
 
 stipulations must indicate an agreement that law merchant is not to prevail, 
 i. 203. 
 
 and must be in writing signed by the parties, i. 203. 
 (for the construction of various phrases in bills of lading, see post, VIII.)
 
 INDEX. 799 
 
 CARRIAGE OF GOODS — Continued. 
 
 IV. Liability for Freight, i. 204-220. 
 
 freight, contract for, entire, when, i. 204. See post, VI. 
 exceptions thereto, i. 204. 
 as to quantity of goods, i. 204, 221. 
 completion of voyage, i. 204. 
 consignee must pay freight for M'hat is delivered, when, i. 205. 
 if part delivered, and accepted, of entire cargo, when freight of that part to be 
 
 paid, i. 205. 
 when consignor not bound to pay pro rata freight, i. 205. 
 freight due for what is shipped, i. 205, and notes, 
 delivery of part, and payment for rest by owner, entitles him to whole freight, 
 
 when, i. 206. 
 shipper's claim for goods not delivered, i. 206. 
 
 when ship-owner not responsible for full value of goods, not delivered, i. 207. 
 liability of consignee, his indorsee, or assignee party not owner, agent and 
 party to whom another's goods are consigned, for freight, i. 207, 
 208. 
 if indorsee of bill of lading obtains goods in another way, i. 208. 
 if indorsee once liable continues so, i. 209. 
 these remarks apply in absence of charter-party only, i. 209. 
 
 implied agreement for freight, by delivery and reception of goods, 
 i. 209, 302. 
 liability of consignor when bill of lading stipulates that consignee shall pay 
 
 freight, i. 209, n. 6, 303, 304. 
 recovery of freight money paid in advance, when voyage is not performed, 
 i. 210-213. 
 recovery of passage money for breach of contract to carry, i. 211, n. 
 question of fact to determine intention of parties, i. 210. 
 the question discussed, i. 210, 212. 
 
 authority of master to take freight money in advance, i. 213. 
 recovery by consignee of excess above legal freight paid to obtain goods, 
 
 i. 213. 
 reasonable freight if amount is not stipulated, i. 213. 
 
 value of pound sterling, i. 213. 
 none earned by illegal voyage, i. 213, 214. 
 smuggling or contraband, i. 214. 
 sailing under license from enemy, i. 214. 
 violation of foreign law does not render illegal, i. 214. 
 question of freight as between vendor and vendee of ship with cargo on board, 
 i. 214. 
 liability of shipper to vendee for freight, i. 214. 
 in whose name suit may be brought, i. 214, n. 
 mortgagee not in possession not entitled to freight unless, i. 215. 
 right of captor to freight, i. 215, 216. 
 
 injury to property by captor, i. 215. 
 
 if shipper has advanced money on credit of freight, master may claim 
 this as against captor, i. 216. 
 contract for the carriage of passengers, i. 216. 
 
 passage money sometimes master's perquisite, i. 216.
 
 800 INDEX. 
 
 CARRIAGE OF GOOT)S — Continued. 
 
 if so, and he dies, rights of his personal representatives, and of his 
 
 heirs, i. 216. 
 if passage money is paid in advance and voyage never begins, or is 
 interrupted and not finished, i. 216, n. 
 if goods arrive at port of destination damaged, whether owner may abandon 
 them to master and pay no freight, i. 216, 217. 
 if the cargo remains in specie, i. 217, n. 
 if barrels or boxes arrive, and contents disappear, i. 218. 
 freight of animals, if some die on the voyage, i. 219. 
 if freight to be paid on lading, i. 219. 
 if for transporting, 1. 219. 
 
 carriage of passengers or animals, whether freight, and by what rules 
 governed, i. 219. 
 if ship does not break ground, i. 220. 
 
 whole freight payable if ship finally arrives and delivers cargo in good order, 
 notwithstanding delay, i. 220. 
 if delay was unavoidable, i. 220. 
 V. Delivery by the Vessel, i. 220-231. 
 
 when voyage is not completed, and consequent non-delivery at the terminus, 
 
 i. 220, 204, and n. See post, VI. 
 condition precedent to action for freight, i. 220. 
 prevented by fault of shipper or consignee ; claim for freight, i. 220, 
 wrongful seizure by custom-house officers, i. 220, n. 2. 
 tender at end of voyage, and delivery prevented by prohibition of government, 
 
 whole freight earned and due, i. 221, n. 1. 
 prevented b}' blockade, freight not earned, i. 221. 
 
 atttachment, freight earned, i. 221, n. 1. 
 at quarantine, by usage delivery at port, i. 221. 
 
 no particular port of, mentioned, presumption that general port is meant, i. 222. 
 personal, necessary, as general rule of carriers, i. 222. 
 
 applicable to hoyman plying to wharf, i. 222, n. .5. 
 not applicable to ships, i. 222. 
 on wharf, with notice to consignee, sufficient, i. 222. 
 wharf must be suitable for cargo, i. 223. 
 
 if insufficient, no delivery, and vessel liable, i. 223. 
 carrier's liability revives if goods reshipped, i. 224. 
 delivery on wharf, how to be made ; different consignments, how to be landed, 
 
 i. 224. 
 what notice master mustgive to consignees, i. 224. 
 casual knowledge of consignee not sufficient, i. 224. 
 newspaper notice ; proof that consignee read it, i. 225. 
 
 when sufficient, i. 225. 
 want of notice, when excused, i. 225. 
 
 master's wrongful omission to sign bill of lading no excuse for not giving no- 
 tice, i. 225. 
 if it is shipper's fault that there is no bill of lading, what notice is sufficient, 
 
 i. 225. 
 what duty of master if no consignee is named in bill of lading, or cannot be 
 found after reasonable exertion, i. 225, n. 2.
 
 INDEX. 801 
 
 CARRIAGE OF GOODS — Continued. 
 
 •when consignee refuses to receive goods, i. 225. 
 
 must have reasonable time to determine whether to accept or not, 
 
 i. 225. 
 not liable for freight until acceptance of goods, i. 225. 
 when delivery must be made, i. 226. 
 
 on proper day, as to weather, i. 226. . 
 
 on business day, i. 226. 
 at proper hour of such day, i. 226. 
 
 must be reasonable in time, place, and circumstance, i. 226. 
 consignees, not bound to receive goods at an unusual time by their 
 clerks or truckmen, i. 226. 
 reasonable notice of, as to time, i. 226, n. 5. 
 without notice, usage of, may be shown, i. 227. 
 usage of wharfingers to accept goods, not binding, i. 227. 
 manner of, parties may make special contract, i. 227. 
 if goods illegibly directed, carrier not generally liable for loss of, i. 227. 
 
 when liable, i. 228. 
 delivery at foreign port, different from, in coasting trade, i. 228. 
 notice of readiness for, by one carrier to another, i. 229. 
 neglect of consignee to remove delivered portion of entire shipment, when 
 
 releases carrier's liability therefor, i. 229. 
 at port of destination, necessary, i. 2.30. 
 at intermediate port, to be forwarded by another boat, i. 230. 
 duty of master of vessel on river Thames, as to goods forwarded in a lighter, 
 
 i. 230. 
 duty of master as to goods in a lighter generally, i. 230, n. 2. 
 if quantity is to be ascertained by weighing, holder of bill has no exclusive right 
 to select weigher, i. 231. 
 VI. Forwarding of the Goods in other Vessels, i. 231, 239. 
 
 before voyage completed, ship-owner has no claim for freight, i. 204, 231, and 
 
 note 220. 
 and no lien on cargo for payment of freight, i. 231. 
 
 but has lien on cargo, for right to earn freight, either by completing voyage in 
 same ship ; or, in certain cases, by forwarding goods in another ship, i. 175 - 
 179, 231, 233, and n. 236, 289. 
 when and how he may forward the goods in another ship : 
 
 shipper has right to reclaim, by paying full freight, i. 231. 
 
 master's right to give up goods at intermediate port, and demand full 
 
 freight, 1. 231, n. 3. 
 whether obliged to give them up, upon tender of full freight, i. 231, n. 3. 
 what ship-owner may do to earn freight, i. 233. 
 when he may transship, i. 233. 
 when bound to, i. 234. 
 
 must use reasonable endeavors to obtain another ship, i. 234. 
 duty as to bill of lading, when he sends goods on, i. 235. 
 expenses of forwarding, to whom chargeable, i. 235. 
 owner of goods transshipped, chargeable with excess over freight, 
 
 i. 236. 
 how far insurer of cargo liable for this excess of freight, i. 236, n. 1. 
 VOL. II. 51
 
 802 INDEX. 
 
 CARRIAGE OF GOODS — Continued. 
 
 master agent of both parties ; of owner to save his freight, of shipper 
 
 to save his goods and forward them, i. 236, 237. 
 custom of charging lighterage in addition to freight, i. 237, 238. 
 wilful neglect to transship, gives shipper right to his goods, without 
 paying freight, i. 238. 
 master's or ship-owner's interest in, or lien on goods arises from earning of 
 
 freight, i. 238. 
 if bill contains provision that ship-owner may transship, he is responsible for 
 
 safe delivery of goods, i. 238. 
 and this privilege optional, i. 239. 
 VII. Freight pro rata, i. 239 - 244. 
 
 effect of tender of goods at intermediate port, i. 239. See i. 218. 
 
 shipper on acceptance, must pay freight pro rata, i. 239. 
 
 what acceptance creates obligation to -pay pro rata freight, i. 240, 241. 
 
 must be voluntary, i. 240. 
 what is not a voluntary acceptance, i. 240, 241, 243. 
 if obliged to take them to relieve from capture or otherwise, i. 240, 241. 
 when under no obligation to pay any freight, i. 241, 242. 
 master's authority to accept cargo at intermediate port, i. 242. 
 abandonment of goods to underwriter after voyage broken up, pro rata freight, 
 
 i. 242. 
 no freight pro rata recoverable on original contract, i. 241, n. 1, 242, 243, n. 2. 
 how claim for, sustained, i. 242. 
 
 where part lost by peril of sea, and part delivered under charter-party, i. 243. 
 how proportion of prorata freight due is calculated, i. 243. 
 
 two ways : geographical, or commercial (pecuniary) parts, i. 243. 
 proportion of distance, or cost of transit, i. 243. 
 latter rule most favored, i. 243. 
 how best applied, i. 243. 
 questions of pro rata freight most frequent in cases of capture or condemna- 
 tion or sale under decree of salvage, i. 244. 
 Vni. Ships as Common Cakriers, i. 245 -267. 
 when a ship is a common carrier, i. 245, 246. 
 
 when a carrier by water, and a carrier by land is a common carrier, i. 245. 
 definition of a common carrier, i. 245. 
 
 applied to a ship, i. 246. 
 whether a general ship is a common carrier, i. 246. 
 
 ship's liability as a common carrier modified by bill of lading or other con- 
 tract, i. 246 - 248, and notes, 
 when packets common carriers, i. 246. 
 steam tow-boats, when, i. 247, n. 3. 
 flat-boats, when, i. 247, n. 3. 
 canal and ferry-boats, when, i. 247, n. 2 and 3. 
 limitation of liability by notice, i. 250, n. 
 notice brought home to party^ i. 250, n. 
 construction of the following phrases in bill of lading : 
 promise to carry goods " safely," i. 251, n. 
 " dangers of fire," i. 251, n. 
 " goods to be receipted for on levee ; not accountable for rust, break-
 
 INDEX. 803 
 
 CARRIAGE OF GOODS — Continued. 
 
 age, leakage, cooperage ; weight and contents unknown," i. 252, n. 
 " perils or dangers of the river, or of the lakes, or of water, or of navi- 
 gation," i. 253. 
 " dangers of the roads," i. 253. 
 
 the English exceptions, " The act of God, the king's enemies, fire, and 
 all and every other danger and accident of the seas, rivers, and navi- 
 gation, of whatever nature and kind soever excepted," i. 253. 
 " an act of God " distinguished from "peril by sea," i. 253, 254. 
 "an act of God, or the king's enemies," meaning and reason of, i. 254. 
 " the kings enemies " does not include mob, riot, civil commotion, or 
 embezzlement by crew, but does include pirates, i. 254. 
 liability continues if vessel wrecked, unless, i. 255. 
 
 vessel striking beam at low tide, i. 255, n. 2. 
 
 if iron vessel runs on shore from influence on compass, i. 255, n. 2. 
 common carrier, when responsible for goods burned in his wagon, i. 255. 
 vessel moored at wharf, destroyed by fire, when owner responsible to shipper 
 
 for loss, i. 255. 
 exceptions against fire in bill of lading, i. 255, 256. 
 fire, not an " act of God," i. 256, n. 
 
 fire is not a " peril of sea," as between shipowner and shipper, i. 256, n. 
 designed obstruction of channel, "peril of seas," i. 257. 
 "dangers of the seas," what it includes, i. 257. 
 
 if goods are gnawed by cockroaches or rats, carrier liable, i. 258, 259. 
 if cargo is damaged by collision, liability of carrier depends upon its 
 
 nature, i. 259. 
 if neither party in fault, a peril of the sea, i. 259. 
 ship-owner not liable for loss occasioned by intrinsic defect in article 
 
 carried, i. 260. 
 as decay of fruit, i. 260. 
 or effervescence of liquors, i. 260. 
 or tendency to leak, i. 261. 
 
 or tendency to dampness in hold, if produced naturally, i. 261. 
 ship-owner not responsible if loss occurs from independent causes, 
 
 though master or owner negligent, i. 258, 261. 
 where human default co-operates, ship responsible, i. 258. 
 duty of master, as to stowage, i. 261. 
 
 if goods badly stowed, and damage results, when responsible, i. 261, 262. 
 if shipper provide dunnage, ship-owner not responsible for insuflSciency 
 
 of, i. 263. 
 if responsibility for loss cannot be ascertained, damage to be divided, 
 
 i. 263. 
 damage to goods, from other goods stowed in hold, i. 263. 
 where stowage the proximate cause of damage, i. 263. 
 shippers answerable to owners for putting on board dangerous or insuf- 
 ficiently packed goods, i. 265. 
 goods forbidden to be exported, shipper liable if ship is seized, i. 266. 
 goods on deck, jettisoned, cannot claim contribution in general average, 
 i. 266. See General Average. 
 if so carried by agreement, shipper must suffer the loss, i. 266.
 
 804 INDEX. 
 
 CARRIAGE OF GOODS —Continued. 
 
 if without his consent, otherwise, i. 266. 
 burden of proof of such agreement on ship-owner, i. 267. 
 if goods stowed on deck, and injury results from other cause, i. 267, n. 3. 
 
 IX. Parties to suit for Non-delivery of Goods, or Injury to them, 
 
 i. 267-270. 
 who entitled to claim damages, consignor or consignee, i. 267. 
 whether master liable to holder of indorsed bill of lading for delivering goods 
 
 to holder of unindorsed bill, i. 267, 268. 
 whether holder of unindorsed bill also liable, i. 268. 
 liability of master for delivery to one of two holders of indorsed bills, i. 268. 
 
 trover by one such consignee against the other, i. 268. 
 action, when to be brought in consignor's, and when in consignee's name, 
 1. 268. 
 
 if the consignee act as agent of the consignor, i. 268, 269. 
 
 if the consignor act as agent of the consignee, i. 269, n. 
 
 right of property and possession, criterion, i. 269, n. 
 
 master should rigidly adhere to stipulations in bill of lading, i. 270. 
 
 X. Damages for Breach of Contract of Affreightment, i. 271-273. 
 
 value of goods, that at place of delivery at time when they should have been 
 
 delivered, i. 271. 
 whether interest should be allowed, i. 271, n. 2. 
 value, net at port of delivery, i. 271. 
 market value governs, i. 271. 
 njarket value of money must be paid, i. 272. 
 
 if goods are partially lost, shipper cannot abandon and claim entire value, 
 i. 272. 
 
 ship-owner can deduct freight and charges, i. 272. 
 refusal of shipper to accept goods at port other than that of original destina- 
 tion, i. 273. 
 
 refusal to accept at intermediate port not abandonment, and ship-owner 
 still liable for goods, i. 273. 
 goods damaged, duty of master, and not of consignee, to separate, i. 273. 
 sale at auction, if fairly conducted, a strong evidence of market value, i. 273. 
 CARRIER. See Common Carrier. 
 CASAREGIS, i. 13. 
 
 CAVEAT EMPTOR, as applied to sale of ship, i. 86. 
 
 CERTIFICATE, of registry, change of title to be indorsed upon, i. 50, ^9, n. ; 60, n 
 misrecital of, in bill of sale, i. 60, n. 
 of builder, i. 63 - 67. 
 CHANGE OF NAME, how authorized, i. 38. 
 CHARTERER. See Charter- Part)/. 
 CHARTER-PARTY, i. 274 - 337. 
 
 admiralty jurisdiction over, ii. 178. 
 I. What constitutes, L 274-277. 
 object of, i. 274. 
 form of, i. 274. 
 
 not necessarily a written document, i. 274. 
 avoided by alteration or addition, i. 274, 275. 
 written, parol not admissible to vary, i. 275.
 
 INDEX. ^^^ 
 
 CHARTER-PARTY— Continued. 
 
 alteration of, by third party, i. 275, and n. „■ , a 
 
 parol, afterwards reduced to writing, rights of third persons not aftectea, 
 
 i. 275. 
 stipulations not inserted, considered waived, i. 275, n. 
 act of 1850, not applicable to, and need not be recorded, i. 275, 276. 
 sealing of, unnecessary, i. 276. 
 
 by master or agent, i. 276, n. 
 agreement for future, how binding, i. 276, 277, and n. 
 if signed by agent as such, agent not liable for breach, i. 277, n. 4. 
 even though principal resides out of country, i. 277, n. 5. 
 II. General Provisions of, i. 278-299. 
 
 vessel to be manned and provided by owner, i. 278. 
 
 by charterer, i. 278. . . 
 
 distinction important as determining whether owner or charterer is m 
 possession, so as to have the rights, and incur the liabilities, of pos- 
 session, i. 278, 279, n. Seeposf, III. 
 principles which determine such possession, i. 278, 282. 
 if owners have agent on board chartered ship, i. 279, 280. 
 what holding out of the owners will render them liable, i. 280. 
 when master is charterer, i. 281. 
 when part-owner is charterer, i. 281, 282. 
 
 to master on shares gives him full possession of the ship, i. 282. 
 division of profits of vessel on shares, i. 281, 282. 
 liabilities of owners while paying crew and officers, i. 282. 
 how terminated, i. 282, 283. 
 provisions and stipulations of, i. 282, 286. 
 as to burden of vessel, i. 283. 
 
 effect, if erroneous or fraudulent, i. 283, and n. 2. 
 as to national character, i. 284. 
 
 effect, if erroneous or fraudulent, i. 284, and n. 
 as to rank of ship, as " A. I.," i. 284. 
 
 continuance of this warranty, i. 284. 
 as to condition of ship and repairs, i. 284. 
 implied, if not expressed, i. 284. 
 
 of seaworthiness, not condition precedent; therefore charter- 
 money payable when, although breach, i. 285. See post, VI. 
 (different from stipulation of seaworthiness by party obtaining 
 insurance, which is condition precedent to policy attaching, 
 . . i. 285, n. 3.) 
 indemnity for unseaworthiness, i. 285. 
 instances of unseaworthiness, i. 285, n. 3, 286, n. 
 extends to latent defect, i. 285, n. 3. 
 relates to the particular voyage, i. 286, n. 
 by reason of injurious articles on board, i. 286, n. 
 chartered ship, disabled when taking in cargo, i. 286, n. 
 when and where owner must repair, i. 286, n. 
 offset by shipper of damages, in suit by owner for freight, i. 287, 
 
 n., 206, n. 2. 
 that charterer shall man and victual ship, i. 284.
 
 S06 INDEX. 
 
 CHARTER-PARTY — Continued. 
 
 implied, if not expressed, i. 284. 
 usual for master to give bills of lading, notwithstanding, i. 286. 
 
 but they cannot impair ship-owner's rights or lien for full amount 
 of freight, although stipulating for less, i. 287, 288. See 301, n. 2. 
 indorsee of bill of lading for value entitled to receive goods even though mas- 
 ter made unauthorized contract as to freight, i. 287, 288. 
 when charterer liable for full amount of charter-money, although ship cannot 
 
 carry full load, i. 175, 179, and n. 1, 231, 232, 240, n. 2, 289. . 
 obligations of charterer to trim and ballast vessel, i. 290. 
 
 of parties respecting assortment and stowing of cargo, i. 290. 
 overloading vessel, i. 290, 291. 
 goods must be in usual merchantable form, i. 291. 
 
 duty of ship-owner as to loading unaffected by neglected permission to char- 
 terer to employ his own stevedore, i. 291. 
 averaging freight in assorted cargo, i. 291. 
 if charter provides for payment of sum in addition to stipulated freight, parol 
 
 evidence of liability may be given by ship-owner, i. 292. 
 carriage of goods by charterer for other parties, i. 292. 
 
 at what rates, i. 292. 
 no lien for " dead freight," i. 292 ; 179, n. 
 
 cargo may be paid for by a gross sum, or by the ton, or package, i. 293. 
 if by ton, nothing less payable for, i. 293. 
 standard for ton, i. 293. 
 if by ton, and part or whole of cargo is lost ; liability of charterer, 
 
 i. 293. 
 if by a gross sum, and whole cargo not delivered, liability of char- 
 terer, i. 293. 294, n. 
 right of charterer to take goods of other parties, i. 294. 
 J-ight and duty of master to take goods of other parties, i. 294, 
 
 295. 
 if master thus earns excess over stipulated freight, which party en- 
 titled to it, i. 296, 298. 
 if owner lets part of a chartered ship usually occupied by the crew, 
 
 i. 298. 
 if charter-party is cancelled, by charterers guaranteeing freight, 
 ship-owner may recover after loss of ship during voyage under- 
 taken under this agreement, i. 297, 298. 
 when outward voyage terminates, on charter for round trip, i. 298. 
 charterer may maintain action for damage to'ship, i. 298. 
 but not for consequential damages, i. 298. 
 
 charterer who puts up vessel as general ship, liable to owner for 
 damages by him paid to shippers whose goods are damaged by 
 contact with charterer's goods, i. 299. 
 in. Lien of Chartered Ship on Cargo for the Freight, i. 299-305. See 
 173-179, andn., 197, 202. 
 question stated ; whether owner of ship let upon charter-party has lien on 
 cargo for his freight ; possession of the ship-owner as ground of 
 lien, i. 278, 299. 
 the case of Hutton v. Bragg, i. 299.
 
 INDEX. 
 
 807 
 
 CHARTER-PARTY — Continued. 
 
 the question of possession as ground of lien considered, i. 300, 301. 
 when charterer becomes quasi owner, so that general owner has no 
 
 lien, i. 300. 
 although charterer is an infant, i. 300. 
 when charterer carrying goods for others, has, as quasi owner, lien 
 
 for freight, i. 300. 
 when payment of freight by shipper to charterer, no defence to ac- 
 tion by ship-owner, and vice versa, i. 300. 
 owner's lieu extends only to amount due from shipper to charterer, 
 when, i. 301, and n. 2. See 288, and n. 
 vessel let on shares to master, owner cannot maintain action for freight, i. 302. 
 
 and not liable for wages of crew, i. 302. 
 implied obligations of parties to every contract of affreightment i. 302 ; ii. 174, 
 175; 209. 
 stipulations of parties as to lien, i. 302, 303, and n. 
 delivery of goods without payment of freight ; whether master can fall back 
 on shipper, i. 209, 210, and n. 1, 303, 304. 
 IV. Payment by a Charterer, i. 305-310. 
 
 if master receives valueless bill or note for freight, revival of claim, i. 305. 
 master's lien for disbursements and wages, i. 306. 
 
 payment of freight by shipper to owner, when cuts off master's 
 
 claim on shipper, i. 306. 
 retention of cargo by master, to satisfy lien, as against purchaser, 
 
 i. 306. 
 retention of part of cargo, i. 306. 
 voyage out and home ; whether freight payable, if outward cargo delivered, 
 but ship lost on return voyage, i. 307, 309. 
 whether distinct benefit derived, criterion of distinct voyage, i. 
 308. 309. 
 owner's duty to keep ship in repair, i. 309. 
 
 must take time for this purpose, and charterer pay for this time, i. 
 
 309. 
 duty of charterer, in possession, to repair and not abandon, i. 309. 
 duty of charterer not to remove goods, until, i. 309. 
 charterer liable for expenses of deviation if authorized by his agent, 
 i. 310. 
 v. Demurrage and Lat-D ays, i. 310-318. 
 
 ship or cargo not ready at appointed time, each may seek another, i. 310. 
 
 time, when of the essence of the contract of affreightment, i. 310, n. 
 master, after waiting reasonable time at foreign port for instructions, may do 
 
 what, i. 310, 311. 
 owner liable for unreasonably protracting voyage, i. 311. 
 despatch in lo-ading or unloading, i. 31 1. 
 reasonable facilities to be given therefor, i. 311. 
 
 if there is an express contract, parties held strictly to its terms, i. 311. 
 in the absence of, implied contract as to reasonable time, i. 311. 
 this for a jury to determine, i. 311, n. 4. 
 nature of demurrage and lay-days, i. 311. 
 in time charter, no need of, i. 311.
 
 808 INDEX. 
 
 CHARTER-PARTY— Continued. 
 
 if for voyage or voyages, i. 311. 
 
 if ship lost by peril of the sea, during lay-days, and before reception 
 of goods, i. 311. 
 when charterer bound to furnish cargo, i. 312. 
 demurrage clause in bill of lading, i. 312. 
 when lay-days commence, i. 313. 
 
 whether delay by compulsion or necessity entitles to demurrage, i. 312 - 316. 
 delay from capture ; embargo ; quarantine regulations ; the elements, 
 as frost, tempest, or tide; act of government ; act of consignee of 
 other portion of cargo ; crowded state of docks ; omission of 
 owner to procure proper papers for discharge ; without fault of 
 either ship-owner or consignee, i. 312-316 and notes, 
 risk of roads and transportation from dock, upon unlading ; risk of working 
 
 weather, i. 316. 
 removal of discharged cargo ; speed, i. 316, 317. 
 when lay-days begin to count, if delay occurs, i. 316. 
 "working days," "running days," i. 317. 
 stipulations for delay after expiration of lay-days, i. 317. 
 damages, and rate of payment for delay, after lay-days, i. 317. 
 charter on time, charterer liable for time lost by what detentions, i. 318. 
 agreement of charterer as to payment in case of capture and condemnation, 
 i. 318,.n". 
 VI. Construction of Chakter-Parties, i. 318-328. 
 question of law; intention of parties to govern, i. 318. 
 
 whether covenants in, are conditions precedent ; independent and dependent 
 covenants, i. 319. 
 
 general principles which determine this question, 318, 319. 
 
 hardships thereof, i. 324. 
 
 ship-owner contracting to carry full cargo, sailing with part ; whether 
 
 freight recoverable, i. 319. 
 stipulations as to seaworthiness, whether condition precedent and 
 
 freight, recoverable ; damages for breach, i. 320, n., 285, n. 
 waiver of conditions precedent, i. 320, n., 321, n. 
 ship made seaworthy before loss or damage, i. 320. 
 stipulations to sail with first convoy ; to load in season for first con- 
 voy ; to sail with first wind ; to load certain goods ; as to time of 
 being at, or leaving, certain point, 321, 322. 
 mercantile usage as affecting, i. 324. 
 
 usage only in questions of contract, i. 324, n. 1, 327. 
 express provisions, i. 324, 325. 
 cases illustrating construction, i. 325. 
 
 no necessity for clause excepting owners from loss by peril of the seas, i. 325. 
 stipulations in, i. 326-328. 
 as to "sailing," and "departure," i. 326. 
 risk "excepted during voyage," i. 326. 
 to proceed " with all convenient speed," i. 327. 
 meaning of " shut" port, i. 327. 
 
 clause respectively binding goods and ship in penal sum, no limitation of 
 liability, i. 327.
 
 INDEX. 809 
 
 CHARTER-PAKTY— Continued. 
 
 application of technicalities of common law to, i. 328. 
 
 consignee has no authority to change any stipulations of charter-party, 
 i. 328. 
 
 VII. Dissolution of Charter-Partt, or of its Obligations, i. 328 -337. 
 by agreement, i. 328. 
 
 by its becoming illegal, i. 329. 
 
 by breaking out of war, i. 329. 
 embargo, i. 329. 
 act of non-intercourse, i. 329. 
 special prohibition, i. 329. 
 war annuls : embargo, etc., suspend, i. 329, 330. 
 
 in latter case, obligation of each party to complete their side of 
 the contract as soon as they can, i. 331, and n. 
 lowness of water suspends contract, i. 331, n. 
 
 if restraint likely to continue a long time, or if goods perishable, contract an- 
 nulled, i. 331. 
 reasonable cause to apprehend blockade does not jiermit master to break con- 
 tract, i. 332. 
 unlawful seizure of vessel by stranger, i. 332. 
 
 citizens to take notice of blockade, formally notified to nation, i. 332. 
 blockade de facto and by notification, i. 333, n. 
 public and private notification of blockade, i. 333, n. 
 blockade only in intention or by decree, right and duty of ship to enter ; must 
 
 be maintained by sufficient force, i. 333, and n. 
 what warrants condemnation for breach of blockade, i. 333, n. 2. 
 ship not bound to incur danger in attempting to break imperfect blockade, 
 i. 333, 334. 
 nor if blockading squadron is driven off by accident, storm, change of 
 
 wind, etc., i. 334, n. 
 nor if squadron is absent chasing suspicious vessels, i. 334, n. 
 if vessel is warned off, and returns again, i. 334. 
 
 if vessel sails for blockaded port, with hope of finding blockade terminated, or 
 intention of waiting, i. 334. 
 if vessel sails directly for blockaded port ; American ship sailing to 
 , English blockaded port, and vice versa, i. 33.5, n. 
 
 whether shipper can require ship-owner to proceed thus to blockaded 
 port, i. 335. 
 if both parties knew of blockade, when making contract to send ship to block- 
 aded port, i. 336. 
 ship and cargo captured and afterward restored to owner; suspension or disso- 
 lution of contract, i. 336, 337. 
 
 VIII. In other Respects : 
 
 whether charterer may accept bottomry bond, i. 1.58. 
 
 pj'o rata compensation recoverable for carriage of goods covered by, when, 
 i. 168, and n. 1 ; 239; 268. 
 CHATTEL. See Personal Property. 
 CHRONOMETER, whether appurtenant to ship, i. 81, n. 
 
 hire of, by master for vessel, ii. 16, n. 
 
 expense of rating, ii. 6.
 
 SIO INDEX. 
 
 CIRCUIT COURTS, ADMIRALTY JURISDICTION OF, ii. 193-196. 
 
 only appellate from district court, ii. 193. 
 
 where matter in dispute exceeds fifty dollars, ii. 193. 
 
 this exclusive of costs, ii. 193. 
 
 appeal must be from final decree, ii. 193. 
 
 proceedings subsequent to appeal belong to court in possession thereof, ii. 194. 
 
 and property remains in, on appeal to Supreme Court, ii. 194. 
 
 limited by bounds of circuit, ii. 194. , 
 
 person or thing against which suit is directed must be within circuit, ii. 194. 
 
 no process to compel appearance can be sent to another circuit, ii. 195. 
 
 nor prize proceeding against party not an inhabitant thereof, ii. 195. 
 
 or actually within, ii. 195. 
 
 method of proceeding when judge is an interested party, ii. 195, 196, 
 
 See Supreme Court, ii. 191-193; District Court, ii. 196-203; Appeals, 
 ii. 204 - 217, 496 - 508 ; Seizures, ii. 218 - 222. 
 CITATIONS, in admiralty appeals, ii, .502. 
 CIVIL LAW, conformity of, to modern law, i. 7. 
 
 value of, i. 5, 7, 8. . 
 CLAIM AND OTHER PROCEEDINGS PRIOR TO ANSWER, in admiralty, 
 ii. 402-421. 
 I. Claimant, ii. 402 - 406. 
 
 must verify claim by oath, ii. 402. 
 
 may be owner of property, ii. 402. 
 
 or general agent, ii. 402. 
 
 Or special, ii. 402. 
 
 master of ship, ii. 402. 
 
 in case of foreign ship, the consul of nation of ship, ii. 402. 
 
 consul can act only as commercial agent, ii. 403, 
 
 in claim growing out of national right, only diplomatic minister can act, 
 ii. 403. 
 
 consul only has power to protect interest of absent, ii, 403. 
 
 owner bound for expenses incurred by consul, ii. 403. 
 
 consul cannot receive property without special authority from owner, ii, 403. 
 
 right of agent to claim, limited to absence of principal, ii. 403. 
 
 one part-owner cannot claim for another, if both are within jurisdiction of 
 court, ii. 403. 
 
 master cannot claim, if owner is present, ii. 403. 
 
 proprietary interest necessary, ii. 403. 
 
 intervenors sometimes called claimants, ii. 403, 404. 
 
 they cannot dispute cause of action of libellant, ii. 404. 
 
 but merely assert own claim, ii. 404. 
 
 attaching creditor may intervene, ii. 404. 
 
 third parties also, by subrogation, ii. 404. 
 
 several parties claiming liens independently, those not having preference may 
 contest preceding liens, ii. 404. 
 
 whether owner of cargo may contest amount of bottomry bond against ship 
 and freight, ii. 404. 
 
 mortgagee may defend, when, ii. 404. 
 
 underwriters, after acceptance of abandonment, may intervene, ii. 405. 
 
 but not until acceptance of abandonment, ii. 405, n.
 
 INDEX. 811 
 
 CLAIM AND OTHER PROCEEDINGS PRIOR TO ANSWER — Continued. 
 
 in cause of collision, owners of cargo on board vessel libelled may intervene for 
 
 protection of interests, when, ii. 405. 
 mortgagee in possession may be admitted claimant, ii. 40.5. 
 if claimant and libellant fail, court will retain property, ii. 405. 
 usual to retain it for a year and day, ii. 405, n. 5. 
 
 new claim cannot be presented in Supreme Court on appeal, ii. 405, 406. 
 but may be presented to circuit court when cause is remanded, ii. 406. 
 party filing claim waives objection as to regularity of suit, ii. 406. 
 absolute appearance once given cannot be recalled, ii. 406. 
 II. Stipulations, ii. 406 - 416. 
 
 district courts may deliver property on bail or stipulation, ii. 406. 
 
 and enforce by judgment or execution the security or compliance with the 
 
 terms of, ii. 406. 
 no difference whether under seal or not, ii. 406. 
 if having seal and void as bond, may be good as stipulation, ii. 406. 
 always ordered on direct application for property by claimant, ii. 406. 
 court may enforce its decrees against all who become parties to proceedings, 
 
 ii. 406. 
 if interests arc distinct claims, answers and stipulations must be distinct, ii. 407. 
 contumacy or inability on part of one or more parties will not prevent other 
 
 parties interested from proceeding, ii. 407. 
 in suit on bottomry bond, ship will not be delivered to obligor on, without con- 
 sent of libellant, ii. 407. 
 
 so held in cause of salvage, ii. 407, n. 4. 
 
 but no such distinction in admiralty rules, ii. 407. 
 in possessory suit, master in possession not allowed to bond vessel before filing 
 
 answer, ii. 407. 
 similar to those of civil law, ii. 407, and n. 6. 
 of many kinds, ii. 408. 
 
 differing as action is in personam or in rem, ii. 408. 
 
 forms of, in blank, usually provided by the clerk, ii. 408. 
 in all suits in personam, marshal may take, ii. 408-410. 
 
 condition of, to appear in suit, ii. 408. 
 
 to abide all orders of court, ii. 408. 
 
 summary process of execution may issue thereon against sureties, ii. 408. 
 
 to enforce decree of court, ii. 408. 
 
 without taking out execution against principal, ii. 408, n. 
 
 bail to be taken only where required by laws of State where arrest is 
 made, ii. 409. 
 
 attachment may be dissolved by defendant giving bond with sureties, 
 ii. 409. 
 
 this may be given and taken in open court, ii. 409. 
 
 or at chambers, ii. 409. 
 
 or before commissioners authorized therefor, ii. 409. 
 
 court may for due cause reduce amount, ii. 409, 410. 
 
 or may require new sureties, ii. 410. 
 if suit in rem, given to obtain possession of the property, ii. 410. 
 
 if refused, court may order sale, ii. 410. 
 
 and proceeds to be brought into court, ii. 410.
 
 812 INDEX. 
 
 CLAIM AND OTHER PROCEEDINGS PRIOR TO ANSWER— Conhnuerf. 
 
 warrant of arrest or execution may be discharged or stayed, when, ii. 410. 
 if for sum certain, surety cannot be compelled to pay more, ii. 410. 
 though stipulation is conditional to pay sum awarded by final decree, 
 
 ii. 410, 411. 
 stipulation regarded as substitute for thing itself, ii. 411. 
 and stipulators liable for no more, ii. 411. 
 valuation cannot be increased in appellate court, ii. 411. 
 claimant giving, and receiving vessel, cannot insist on allowance for dis- 
 charging liens for seamen's wages, ii. 411. 
 and if much delay intervene, must pay interest, ii. 41 1. 
 right of court to order re-arrest of property, ii. 411. 
 
 will not be ordered if judgment is given in larger amount than bail, ii. 411. 
 but court before judgment, may allow amendment of libel and re- 
 arrest of vessel, ii. 41 2. 
 but this power exercised with great caution, ii. 412. 
 whether owners contending suit in rem are personally liable for costs, when 
 
 damages and costs are greater than stipulation, ii. 413. 
 in collision, owners of vessel libelled may file stipulation to full value of ship 
 and freight for benefit of all entitled to liens, and be discharged from further 
 liability, ii. 414. 
 monition to party holding, and not named in stipulation, the proper process to 
 
 re-take possession, ii. 414. 
 sureties may agree that execution may issue against them, ii. 414. 
 their heirs, executors, and administrators, goods and chattels, ii. 414. * 
 for whatever sum decreed, if stipulation is forfeited, ii. 414. 
 whether process would issue against lands of principal or sureties, ii. 414, 
 
 n. 3. 
 this now allowed by rule of court, ii. 414, 415. 
 
 if principal in suit which does not survive dies, sureties should procure dis- 
 charge from court, ii. 415. 
 if obligor die pendente lite, court may proceed against survivor, or against repre- 
 sentatives of deceased also, ii. 415. 
 not discharged by amendment, even though without notice, ii. 415. 
 if vessel is arrested on other suits, after having been given up to stipulators, 
 they may be released from, ii. 416. 
 when such application will be entertained, ii. 416. 
 sureties in England must not be partners, ii. 416. 
 
 III. Delivery on Appraisement, ii. 416. 
 
 court may order delivery to claimant on, ii. 416. 
 
 either by depositing money, or giving stipulation with sureties, ii. 416. 
 
 IV. Stipulations for Costs, ii. 417 -419. 
 
 formerly plaintiff required to find Jide jussores for prosecution of suit, ii. 417. 
 
 and for payment of defendant's costs, if plaintiff should fail, ii. 417. 
 
 and for production of plaintiff when called, ii. 417. 
 
 in England this confined to non-residents, ii. 417. 
 
 in America rules various, ii. 417. 
 
 in suits in rem, claimant obliged to file, upon putting in claim, ii. 417. 
 
 seamen not usually called on for, when suing for wages, ii. 417. 
 
 so of salvors, unless court order for due cause shown, ii. 417, 418.
 
 INDEX. 813 
 
 CLAIM AND OTHEE PROCEEDINGS PRIOR TO ANSWER — Continued. 
 required for suits in personam under fifty dollars, ii. 418. 
 
 exceptions to this rule, ii. 418. 
 not provided for in rules of Supreme Court, ii. 418. 
 seamen alwaj-s called on for, when ability to furnish is shown, ii. 418. 
 defendant may be required to give bail at discretion of court, when libel is in 
 
 personam, ii. 418. 
 in suit in rem, stipulation required, ii. 418, 419. 
 this not necessary to render claimant liable for clerk's fees, ii. 419. 
 See Process, ii. 494, 495. 
 V. Power of Codrt to order Production of Documents before 
 Issue Joined, ii. 420, 421. 
 in equity, cross-bill and prayer for discovery, ii. 420. 
 instrument once ordered for inspection, ii. 420. 
 defendant, at law, entitled to inspection of documents on which plaintiff bases 
 
 his claim, ii. 420. 
 power of admiralty not till recently invoked, ii. 420. 
 if containing whole contract, defendant entitled to production, ii. 420. 
 but not if part is by parol, ii. 420, 421. 
 CLEIRAC, i. 12. 
 
 COCKROACHES, damage by, i. 258. 
 CODES, principal foreign, treating of shipping, i. 3- 18. 
 COKE, i. 5. 
 COLLISION, i. 525-608. 
 
 1. General Rui.es, i. 525 - 548. 
 the party in fault suffers, i. 525. 
 if neither in fault, loss rests where it falls, i. 525. 
 inevitable accident defined, i. 525, n. 
 
 injury by vessel doing salvage service generally considered unavoidable, 
 i. 526, n. 
 if both in fault, loss rests where it falls at common law, i. 525, 526, and n. 
 not so in admiralty, i. 527. 
 except when both are wilfully in fault, i. 528. 
 if, when collision occurs, one vessel is guilty of negligence, burden on her to 
 
 prove this not the cause of collision, i. 529. 
 plaintiff must prove care, i. 529. 
 and want of, on part of defendant, i. 529. 
 
 ship not disabled bound to render assistance to the other, i. 529. 
 though that other caused collision, i. 529. 
 this enjoined by statute in England, i. 529. 
 
 rights of parties depend upon law of place of collision, i. 529, 530, and n. 
 otherwise, if on high seas, i. 530. 
 
 occurrence of, gives lien on ship causing damage, i. 531. 
 lasting only for reasonable time, i. 531. 
 no lien on cargo of offending ship, i. 532. 
 even though owned by owner of ship, i. 532. 
 otherwise as to freight, i. 532. 
 
 no action in rem against bridge lies for vessel injured by, i. 532, n. 3. 
 nor by owners of bridge against vessel in rem for injuries received from vessel, 
 i. 532, n. 4.
 
 814 INDEX. 
 
 COLLISION— Continued. 
 
 captain of vessel of war not liable for injuries received by vessel colliding with, 
 
 if properly below at time, i. 532, n. 5. 
 nor master of merchant vessel for injuries given by, when vessel is in charge of 
 
 pilot, i. 532, n. 6. 
 in England owners of vessel liable, though damage is occasioned by person in 
 
 charge of deck, i. 533. 
 when vessel by no voluntary act of hers contributed to produce, i. 533. 
 when vessel is in charge of pilot, i. 533. 
 
 vessel employed by government, not liable for in England, when, i. 533. 
 when under dock-master's orders, i. 533. 
 owners liable for, though ship is chartered to foreign government, i. 533. 
 
 and collision is caused by fault of charterer's agent, i. 533. 
 vessel liable for collision with tug by which it is towed, if fault is with those 
 on board vessel, i. 534. 
 
 and doctrine of master and servant docs not apply, i. 534. 
 as to liability for collision between vessel towed by steam-tug, and one under 
 
 sail, i. 534. 
 the question discussed, i. 534, and n. 3. 
 vessel colliding with barge in tow of steamer, liable to owners of barge, i. 535, 
 
 536. 
 and also for consequential damages, i. 537. 
 rules of evidence in cases of, i. 537, 538. 
 
 evidence of all persons on board, admitted in admiralty, i. 537. 
 
 unless interested as part-owner, i. 537. 
 admissions of master competent against his owners, i. 537. 
 otherwise as to mate and crew, i. 537. 
 unless made at time of, i. 537. 
 but such declarations of little weight in opposition to their deliberate 
 
 testimony, i. 537, n. 3. 
 not allowed in English admiralty to be of weight, i. 537, n. 3. 
 evidence of seamen of opposing vessel, i. 537. 
 
 condemned by Dr. Lushington, i. 537, n. 4. 
 little reliance placed on evidence as to times and distances, i. 537, 538. 
 log of light-ship admitted in evidence in England, i. 538. 
 so as to books kept by coast-guards, i. 538. 
 measure of damages in cases of, i. 538 - 544. 
 
 all direct and immediate consequences to be taken into consideration, i. 538. 
 rule of restitutio in integrum, i. 539. 
 as to consequential damages, i. 538, 540, and notes, 
 expected profits to be allowed, i. 540, n. 
 and gross freight, deducting incidental expenses, i. 540, n. 
 and expenses paid another vessel for carrying forward freight, i. 540, n. 
 owners of injured vessel may recover for damage done to freight car- 
 ried for hire, i. 541. 
 
 even though they are not common carriers, i. 541. 
 when full damages are allowed as for total loss, plaintiff cannot recover 
 
 in the nature of demurrage, i. 541, n. 
 Massachusetts rule, i. 541, n. 
 market value of vessel just before collision, rule of damages in total loss, i. 542.
 
 INDEX. 815 
 
 COLLISION —Con/inMcrf. 
 
 if vessel is sold on account of damages by, owner may recover value just prior 
 
 to, less amount received from sale, i. 542. 
 owners may recover for costs of defending salvage suit occasioned by, i. 542. 
 rule where vessel was sunk by, and afterwards raised and repaired, i. 542. 
 
 whether when vessel is sunk and afterwards raised, owner is obliged to 
 take her, i. 542. 
 
 not, if tendered in unrepaired state, i. 542. 
 open question as to, if repaired and tendered, i. 542. 
 weakness of injured vessel no defence in suit for damages, i. 543. 
 fraudulent exaggerations of cost of repairs by master, prevents recovery, i. 543. 
 how far insurance rule, one third off, new for old, applies, i. 543. 
 owners entitled to full expenses for repairs and fitting for sea, i. 543. 
 
 though repairs may make vessel more valuable than before, i. 543. 
 owners entitled to expenses of towing injured vessel, i. 543. 
 value of goods injured to be taken at port of shipment, i. 544. 
 Costs in, i. 544, 545. 
 
 general rule, same in admiralty as common law, i. 544. 
 but prevailing party may be held equitably to pay, i. 544. 
 
 if neither party to blame, each pays his own, i. 544, n. 2. 
 when libel is dismissed, respondent entitled to, i. 544, n. 2. 
 losing party pays cost of reference to ascertain damages, i. 544, 
 n. 2. 
 
 but exceptions to this, i. 544, n. 2. 
 when damage occurs by inevitable accident none payable, i. 545. 
 
 but this discretionary with court, i. 545. 
 suit at common law does not prevent one in admiralty, i. 545. 
 if judgment is obtained at common law, and defendant is insolvent, vessel . 
 may be proceeded against in admiralty, i. 545. 
 
 even though she has been transferred to a third party, i. 545. 
 defendant relying upon prior suit before foreign tribunal must show jurisdic- 
 tion and authority of, i. 546. 
 rivers, cases of collision on, i. 546 - 548. 
 in cases occurring on river forming boundary between two states, which state 
 
 has jurisdiction, i. 546. 
 vessel sunk in navigable stream, duty of owner, i. 546. 
 
 if vessel is abandoned, for what owner is liable, i. 546. 
 wrongful obstruction of navigable river, i. 547. 
 as to marking sunken wreck, i. 547. 
 right of obstruction by warp, as to, i. 547. 
 
 duty of vessel using, to lower on approach of other vessels, i. 547. 
 and designate course for them, i. 547. 
 approaching vessel, must take the course designated, i. 547. 
 but if otherwise and becoming entangled, may cut warp, if acting bond 
 fide, i. 547. 
 if vessel is to be launched, timely notice to be given, i. 548. 
 right to recover loss by collision not ended by abandonment to underwriters, 
 i. 548. 
 II. Rules of Navigation, i. 548 - 595. 
 
 steamships under sale to be considered as sailing ship, i. 548.
 
 816 INDEX. 
 
 COLLISION— Continued. 
 
 steamer with vessel in tow, the same as any steamer, in United States, i. 549. 
 doubtful in England, i. 549. 
 
 1. Lights, i. 549-565. 
 
 no requirement of carrying by maritime law, i. 549. 
 
 generally a question of fact, i. 549, n. 
 
 fishing vessel bound to show, to vessel approaching, i. 550, n. 
 
 boats required to carry when at anchor in path of vessels, i. 551, n. 
 
 obligation to comply with port regulations as to, i. 551, n. 
 
 first requirement as to, in England, i. 549- 551. 
 
 sailing vessels required to carry, when under sail, being towed, approaching, 
 
 or being approached by other vessels, i. 552, 553. 
 new rules as to, in England, i. 553 - 555. 
 no change in steamer's lights, i. 553. 
 
 except when under sail, i. 553. 
 sailing vessels to carry the same as steamers, except mast head, i. 554. 
 to be " fi.x.ed," i. 554. 
 
 requirement when impossible to be " fixed," i. 554. 
 sailing pilot vessels, lights carried by, i. 554. 
 provisions of Merchants' Shipping Act Amendment Act, i. 5.54, 555. 
 
 identical with United States act of 1864, i. 555. 
 rules of board of Supervising Inspectors, i. 556-561. 
 
 continued by act of 1865, i. 561. 
 lights for steamships, i. 562. 
 for steam tugs, i. 563. 
 for sailing ships, i. 563. 
 exceptional lights, for small sailing vessels, i. 563, 564. 
 lights for ships at anchor, i. 564. 
 for pilot vessels, i. 565. 
 for fishing vessels and boats, i. 565. 
 
 2. Rules governing Fog Signals, i. 565, 566. 
 
 3. Steering and Sailing Rules, i. 566 -595. 
 
 by maritime law, i, 566 - 583. 
 
 vessel going free must keep out of the way of one close hauled, 
 
 i. 566,567. 
 one close hauled keeps on her course, i. 567. 
 if both close hauled, one on port tack gives way, i. 567. 
 if both have wind free, each ports its helm, i. 567. 
 vessel overtaking another obliged to keep out of her way, i. 568. 
 
 if she can see her, i. 569. 
 same rule applies to steamers, i. 569. 
 
 and where sailing vessel is passed by steamer towing a sailing vessel, i. 569. 
 steamers approaching each other go the right, i. 569. 
 steamer must avoid sailing vessel close hauled, i. 570. 
 
 and may go on either side, i. 571. 
 
 if on customary route, keeps her usual track, i. 571. 
 
 otherwise if sailing vessel is drifting with current, i. 571, 572. 
 same rule applies to steamer meeting flat boat, i. 572. 
 if collision occurs between two steamers at place of departure, both 
 
 deemed in fault when, i. 572.
 
 INDEX. 817 
 
 COLLISION — Continued. 
 
 if one starts first, other must give way, i. 572. 
 
 both presumed in fault if running in opposition, unless contrary is 
 
 clearly shown, i. 572. 
 evidence of racing admissible to show negligence, i. 572. 
 when steamer may destroy raft lodged in channel of river, i. 572. 
 rule when two steam tugs are approaching the same vessel, i. 572. 
 ferry boat bound to delay departure when, i. 572. 
 what is culpable negligence in, i. 573. 
 
 when she may land passengers at other place than her slip, i. 573. 
 vessel entering harbor bound to exercise great care and diligence, 
 
 i. 573. 
 ordinary rules binding on vessels meeting pilot boats, i. 573. 
 
 or vessels fishing on fishing grounds, i. 573. 
 presumption in collision between vessel at anchor and one in motion, 
 i. 573. 
 same when vessel is aground, i. 573. 
 or lying at wharf, i. 574. 
 in fault if anchored in improper place, i. 574. 
 in any case other vessel must avoid her if possible, i. 574. 
 if at anchor, no other to anchor so near as to endanger, i. 574. 
 
 if moored alongside another at a wharf, responsible for all injuries 
 
 which could have been guarded against, i. 574. 
 illustrative case, i. 574. 
 vessel in stays in almost same predicament as when at anchor, i. 574. 
 claiming to be, must prove it, i. 574. 
 and burden of proof then shifts, i. 575. 
 responsible for all contingencies to which she has exposed herself, i. 575. 
 if vessel is not in ordinary safe trim and contributes to collision, owners re- 
 sponsible, i. 575. 
 
 otherwise if in ordinary trim though not handy, i. 575. 
 if about to get under way, must notify vessels in proximity, i. 575. 
 steamboats required to move cautiously, especially at night, i. 575. 
 excessive speed a question of fact, i. 575. 
 fact of carrying mail no excuse for, i. 576. 
 if swell raised by, sinks vessel, steamer responsible, i. 576. 
 when hailed in fog, should reverse engines, i. 576. 
 
 so when vessel is seen having doubtful course, i. 576. 
 intending to anchor in dark night and obliged to starboard her helm, 
 must ease engines and proceed with great caution, i. 576. 
 competent officer must always be in charge of deck, i. 576. 
 
 if otherwise, vessel under his charge considered in fault, i. 576. 
 when under way or at anchor, must have sufficient watch on deck, i. 576, 
 
 577. 
 this rule applies especially to steamers, i. 577. 
 
 if want of lookout does not contribute to collision, vessel not held in 
 
 fault for not having one, i. 578. 
 if vessel on a tack wishes to change her course, must go about if other 
 vessels are near, i. 578. 
 general rule as to sailing vessel, i. 578, 579. 
 VOL. II. 52
 
 818 ' INDEX. 
 
 COLLISION — Continued. 
 
 not obliged to remain in the wind for steamer to pass her, i. 579. 
 if collision occurs in consequence of officer of deck, obeying order of master 
 
 of vessel collided with, the latter cannot maintain action, i. 579. 
 steamers in fog required to go at moderate speed, i. 579. 
 whether this applies to sailing vessels, i. 579, 580. 
 established rules to be carefully followed, i. 580. 
 
 but no vessel justified for collision occasioned by rigid adherence to, i. 580. 
 whether allowance is to be made for excitement caused by fault of wrong- 
 doer, i. 581. 
 State statutes govern manner of steamboats passing each other, i. 582. 
 or usage of river, i. 583. 
 
 boat going with current required to keep middle of stream, i. 583. 
 and ascending boat keeps near the shore, i. 583. 
 in some cases both keep to right, i. 583. 
 little regard paid to local usages in some courts, i. 583. 
 Trinity House rules, i. 584, 585. 
 Rule of 1851, i. 586. 
 
 of 1854, i. 586-588. 
 
 for the government of pilots, i. 589, 590. 
 
 of 1864, i. 591-595. 
 
 two sailing ships meeting, i. 591. 
 two sailing ships crossing, i. 591. 
 two steamers meeting, i. 592. 
 two steamers crossing, i. 592. 
 sailing ship and ship under steam, i. 592. 
 when ships under steam are to slacken speed, i. 593. 
 vessels overtaking other vessels, i. 594. 
 proviso to save special cases, i. 594. 
 
 no ship under any circumstances to neglect proper pre- 
 cautions, i. 595. 
 III. Effect of Breach of Statutory Provisions, i. 595 - 598. 
 
 burden of proof on vessel disregarding statutory provision to show that 
 collision was not caused by such neglect, i. 595. 
 
 violation of no effect unless contributing to accident, i. 596. 
 effect of provision of Merchant's Shipping Act of 1854, i. 596. 
 this repealed, i. 596. 
 present provision in England, i. 596. 
 American rules as provided by statute, i. 597, 598, and notes. 
 COMMON CARRIER, ship as. See Carriage of Goods, VIII. 
 
 rights and duties of carrier, as affecting and affected by stoppage in transitu. 
 
 See Stoppage in Transitu. 
 by deviating from his undertaking, becomes insurer for absolute delivery of 
 
 goods, i. 171, 172, and n. 
 lien of, distinguished from that of ship-owner, i. 174, n. 4. 
 use of bill of lading by, i. 184. 
 master acting in capacity of, ii. 21, n. 
 COMMON LAW, insufficient alone to meet wants of commerce, i. 3. 
 flexibility of, i. 4. 
 how affected by law merchant, i. 4.
 
 INDEX. 819 
 
 COMMON JjAW— Continued. 
 
 superiority of law merchant over, i. 5. 
 fountains of, i. 5. 
 COMMISSIONERS AND REFEREES, ii. 455 -457. 
 
 commissioners may be appointed to hear parties and report, when, ii, 455. 
 
 to have powers of masters in chancery, ii. 455. 
 
 report will not be disturbed unless shown affirmatively to be wrong, ii. 455. 
 
 and exceptions must be stated with precision, ii. 455. 
 court may modify report as to damages, ii. 456. 
 
 or wholly reject it, ii. 456. 
 proceedings when commissioners will not examine particular witness, ii. 456. 
 
 when party is dissatisfied with their report, ii. 456. 
 objection to regularity of, to be made by motion, ii. 456. 
 referees' awaid will not be set aside when, ii. 456. 
 grounds for setting aside, ii. 456. 
 when sufficiently certain, ii. 456. 
 
 salvors dissatisfied with, cannot libel vessel, ii. 456, 457. 
 CONDEMNATION, by foreigner, when vessel cannot be registered after, i. 36. See 
 
 Trial, ii. 458-478. 
 CONDITION OF SHIP, provisions and stipulations as to, in charter-party, i. 284. 
 implied if not expressed, i. 284. 
 of seaworthiness, not condition precedent, therefore charter-money payable 
 
 when, although breach, i. 284. 
 different from stipulation of seaworthiness by party obtaining insui'ance, 
 which is condition precedent to policy attaching, i. 285, n. 
 CONDITIONS PRECEDENT, in charter-party. See Charter-Parly, II., IV. 
 CONDONATION, of desertion, ii. 99, 100. 
 CONFLICT BETWEEN STATE AND UNITED STATES COURTS, ii. 
 
 197 -203. 
 CONGRESS, acts of. See Statutes. 
 
 constitutional powers of, respecting vessels, i. 50, 52, 57, 60, 61. 
 CONSIGNEE. See Carriarje of Goods, II. 
 
 whether consignee may accept bottomry bond, i. 155-158, and n. 
 master acting in capacity of, ii. 21. 
 CONSOLATO DEL MARE, i. 6, 8, 9. 
 CONSOLIDATION OF ACTIONS. 
 
 in suits for seamen's wages, ii. 372 -374. 
 in other suits in admiralty, ii. 372 - 374. 
 CONSTITUTIONALITY of American statutes regulating shipping. See Congress. 
 CONSUL, as judge in admiralty, i. 77, 78. 
 bottomry bond given by, ii. 19, n. 
 taking bottomry bond for services, i. 147. 
 has no right to charge commission for witnessing settlement with seamen in 
 
 foreign port, ii. 56. 
 duties of in regard to seamen discharged in foreign ports, ii. 84 - 88, and n. 
 may authorize the discharge of seamen in foreign port for certain causes, 
 
 ii. 86, 87. 
 power and duty of as to imprisonment of seamen, ii. 92, n. 
 duty of, to hear complaint of seamen, and to visit ship for that purpose. 
 , ii. 98, n.
 
 820 INDEX. 
 
 COJ^SVl.— Continued. 
 
 in case of desertion, ii. 101^ n. 
 as claimant, ii. 402. 
 jurisdiction of, ii. 173, n. 
 CONTRABAND SHIP, sale of, i. 74. 
 CONTRACT, executory, to sell, i. 59, n. 
 
 to sell, distinguished from sale, i. 64, n., 66, n. 
 of affreightment. See Admiralty Jurisprudence. 
 CONTRIBUTION. See General Average. 
 
 actions between part-owners, for, i. 119. 
 
 by crew for embezzlement by one of their number, ii. 94, n. 5. 
 CONTUMACY AND DEFAULT, ii. 400, 401. See Mesne Process, ii. 388-395. 
 I. Contumacy on the Part of the Libellant, ii. 400. 
 libellant, failing to prosecute, decreed in, ii. 400. 
 
 and on application of defendant, suit will be dismissed with costs, ii. 400. 
 II. Contumacy on the Part of the Defendant, ii. 400, 401. 
 defendant failing to answer adjudged in, ii. 400. 
 court thereupon hears cause ex parte, ii. 400. 
 and gives judgment, ii. 400. 
 rules applicable to, ii. 400, 401. 
 
 these rules applicable to suits in rem and in personam, ii. 401 . 
 CONVERSION, of ship by one part-owner, remedy, i. 93, n. 2. 
 CONVEYANCE. See Sale of Ship. 
 
 COOK may be called upon to do seamen's work, when in port, ii. 42, n. 
 CORDAGE as appurtenant to ship, i. 80, n. 
 COSTS, in collision cases, i. 544, 545. 
 
 in admiralty, stipulations for, ii. 479-483. See Mesne Process, ii. 417, 419. 
 
 entirely within discretion of court, ii. 479. 
 
 but generally follow result, ii. 479. 
 
 this rule often departed from, ii. 479. 
 
 plaintiff induced to sue by misconduct of defendant, and not recovering may 
 
 receive, ii. 479. 
 none allowed when recent decision overturned ancient rule on which a re- 
 covery would have been authorized, ii. 479. 
 so when party recovers but small part of sum demanded, ii. 479. 
 applied more leniently in salvage, ii. 480. 
 not decreed against seamen, ii. 480. 
 unless clearly shown to be able to pay, ii. 480. 
 
 if many suits are brought unnecessarily, costs for one allowed, ii. 480. 
 seamen can recover all costs when appeal is taken, ii. 480. 
 when log of vessel was tampered with by master and mate, they condemned 
 
 in costs, though salvor's claim rejected, ii. 480. 
 for further answers, fall on defendant if made necessary by his fault, i. 481. 
 taxable costs regulated by statute, ii. 481. 
 
 provisions of, ii. 481. 
 counsel fees allowed as part of, ii. 481. 
 but only to extent prescribed by statute, ii. 482. 
 upon appeal to Supreme Court regulated by rule of court, ii. 482. 
 provisions of, ii. 482, 483. 
 blank left for, may be filled in court below, ii. 483.
 
 INDEX. 821 
 
 COSTS— Con^miierf. 
 
 if judgment of court below is rendered, appellant entitled to, in that court, 
 ii. 483. 
 
 judgment for, includes all prior and subsequent to rendition, ii. 483. 
 
 liability for clerks' fees not affected by entry of " neither party," ii. 483. 
 
 suits for nominal damages not entertained, ii. 48.3. 
 
 unless vindication of substantial right can only be made thereby, ii. 483. 
 COUNSEL FEES, when allowed as costs, ii. 481. 
 COUNTS IN A LIBEL, ii. 381. 
 COURT in admiralty, constitution of, i. 77, 78. 
 
 sale of ship by order of. See Sale of Ship, V. 
 COURTS, see District Court, ii. 196-203; Circuit Court, ii. 193-196; Supreme 
 
 Court, ii. 191 - 193 ; Appeals, ii. 204 - 217, 486 - 508 ; Admiralty, foreign courts 
 of, ii. 223-230. 
 CREDIT OF SHIP, when master may borrow on, i. 68, n. 
 CUSTOM, of merchants, i. 3 - 5. 
 
 of loading ships, to govern, i. 291. 
 CUSTOM-HOUSE, stoppage in transitu of goods lodged in, i. 497, 498. 
 CUSTOM-HOUSE OFFICER, claim of for salvage, ii. 272. , 
 
 D. 
 
 DAMAGES, rule of, for injury to shipper by deviation measure of, i. 172, n. 
 
 in collision, i. 538 - 544. 
 
 for non-delivery of goods, or injury to them. See Carriage of Goods, IX. 
 
 by fire, by river, by lake, of Avater, of navigation, by king's enemies, by act 
 of God ; construction of phrases excepting, in bills of lading. See Carriage 
 of Goods, III., V. 
 DAMPNESS, ship-owner not liable for loss by, i. 261. 
 DEAD FREIGHT, no lien for, i. 176, 177, 292. 
 DECK, lading of goods on, i. 173, n., 261, n., 266, 267. 
 
 not to be contributed for, but to contribute in general average, i. 266, 267, 
 352-354. 
 DECREE OF ADMIRALTY, sale under. See Sale of Ship, IV. 
 DECREE IN ADMIRALTY, ii. 487-493. 
 
 moulded by court to meet exigencies of each case, ii. 487. 
 
 sometimes in writing and after delay, ii. 487. 
 
 sometimes spoken in court, ii. 487. 
 
 court after case is heard may make, for further proof, ii. 487. 
 
 court may alter, after made, to correct mistake or oversight, ii. 487, n. 2. 
 
 this not provided for by new admiralty rules, ii. 487, 489. 
 
 provisions for rehearing in New York, ii. 490. 
 
 court may make separate for separate interests, ii. 490. 
 
 even if interests are united in one libel, ii. 490. 
 
 interest generally allowed in cases of contract from time of demand, 
 ii. 490. 
 
 if no demand is proved, from time of beginning suit, ii. 490. 
 
 when libel is filed for damage to cargo, and cross-libel for freight, each libel- 
 lant has decree for amount due him, ii- 490.
 
 822 INDEX. 
 
 DECREE IN ADMIRALTY— Cow^maerf. 
 may be final or interlocutory, ii. 490. 
 and interposed at any stage of proceedings, ii. 490. 
 in action in rem for condemnation and sale, ii. 490, 
 and terms and mode thereof specified therein, ii. 490. 
 
 court has no power to refuse sale if libellant has proved right to condemna- 
 tion, ii. 490. 
 
 nor to grant relief inconsistent with or differing from prayer, ii. 490, 491. 
 in suit in personam with property attached and no appearance for defendant, 
 decree will be against property only, ii. 491. 
 
 if property consists of specific articles, court will order sale, ii. 491. 
 
 such sale conveys only rights of debtor, ii. 491. 
 if against money in registry, will be satisfied therefrom, ii. 491. 
 may be for further proof, ii. 491. 
 for delivery and restoration, ii. 491. 
 
 in which case, warrant for restoration follows, ii. 491. 
 this warrant made if respondent has taken property on stipulation, ii. 49 1 . 
 if libellant prevails, respondent may surrender into court, ii. 491. 
 , if not, execution on stipulation issues, ii. 491. 
 but delay required in revenue cases, ii. 491. 
 if respondent prevails in libel for information, certificate of probable cause 
 
 given to officer seizing, ii. 491. 
 provided court judge that he had cause for seizure, ii. 491. 
 and this protects him from prosecution therefor, ii. 491. 
 final decree in forfeiture case conclusive, ii. 491. 
 libellant not permitted to allege one thing and prove another, ii. 491. 
 if allegations in libel in cause of collision are not proved, yet if respondent in 
 
 answer admits fiiult, libellant may recover, ii. 492. 
 decree to be in accordance with allegations and proofs, ii. 492, 493. 
 in cause of collision libellant must prove defendant's fault, ii. 493. 
 
 though defendant sets up cause he cannot sustain, ii. 493. 
 language of decree will be construed in accordance with record, ii. 493. 
 court may decide cross action on facts pleaded and proved an original one, 
 ii. 493. 
 
 when cross action is heard at same time by consent, ii. 493. 
 circuit court executes its own decrees and does not remove case to district 
 
 court, ii. 493. 
 Supreme Court remits case to circuit court, ii. 493. 
 and directs by mandate, disposition of case, ii. 493. 
 DEFAULT, contumacy and, ii. 400, 401. 
 DEFECT, intrinsic, in goods covered by bill of lading, i. 184-204. See Carriage of 
 
 Goods, III. 
 DEGRADATION, of officers and seamen, ii. 96, 97. 
 DELIVERY, of ship. See Sale of Ship, VII., VIIL 
 
 of goods, i. 220-231, 303, 304, 479-524. See Carriage of Goods, V. ; and 
 
 Stoppage in Transitu. 
 of property. See Claim, 
 DEMURRAGE, i. 310 - 318. See Charter-Party, V. 
 
 action for, how affected by deviation, i. 171, 172, n. 
 as part of damages in collision, i. 541, n,
 
 INDEX. 823 
 
 DEMURRER IN ADMIRALTY, ii. 425. 
 
 " DEPARTURE," meaning of, i. 326. 
 
 DEPOSITIONS, rules as to, in admiralty, ii. 440-454, and notes. 
 
 DERELICT. See Salvage. 
 
 DESERTION, ii. 97 - 105. See Seamen, IX. 
 
 promise of higher wages, upon threat of, void, ii. 43, n. 
 DEVIATION. See Carnage of Goods, I. 
 
 loss occasioned by, effect upon bottomry bond, L 137, 138. 
 DISCHARGE, of seamen in foreign port, ii. 84 - 88. See Seamen, VII. 
 DISRATING. See Degradation. 
 
 DISOBEDIENCE, of seamen, ii. 88 - 97. See Seamen, VIIL 
 DISTRICT COURT, ADMIRALTY JURISDICTION OF, ii. 196-203. 
 
 original, over all causes of admiralty and maritime jurisdiction, ii. 196. 
 
 not ousted by State laws relating to same subject, ii. 196. 
 
 as to pilotage and liens of material men, ii. 196. 
 
 concurrent in such cases with State courts, ii. 197. 
 
 and party may elect to go into either, ii. 197. 
 
 jurisdiction belongs to court first taking possession, ii. 197. 
 
 whether lien for seamen's wages can be enforced against vessel under arrest in 
 State court, ii. 197, 198. 
 
 sheriff may waive right of possession, ii. 199. 
 
 this done by marshal taking with his consent, ii. 199. 
 
 or with that of his deputy, ii. 199. 
 
 no defence to monition from, that party has been summoned as trustee in State 
 court, ii. 200. 
 
 suit brought in common-law court may be discontinued, and libel in rem 
 brought in, ii. 200. 
 
 no suit maintainable against government vessel, ii. 200. 
 
 no private claim maintainable on instance side if vessel is captured jure belli, 
 ii. 200. 
 
 may entertain petitory suits, ii. 200, 201. 
 
 State legislature cannot amend judgment, nor determine jurisdiction of, ii. 201 . 
 
 may be held at any place within district at discretion of judge, ii. 201. 
 
 orders may be made at chambers, ii. 201. 
 
 whether stipulations can be received in vacation, ii. 201, 202. 
 
 and property delivered thereon before return term of process, ii. 201, 202. 
 
 this usual in practice, ii. 202. 
 
 but not without consent of libellant, ii. 202. 
 
 proceedings in, when judge is an interested party, ii. 202. 
 
 having admiralty powers in the Territories, ii. 202, 203. 
 
 See Supreme Court, ii. 191 -193; Circuit Court, ii. 193-196; Appeals, ii. 496- 
 508; /Seizures, ii. 218-222. 
 DOMICIL, of vessel, ii. 141, 142. See also Registry and Navigation Laws. 
 DOUBLE PLEADING, none in admiralty, ii. 428. 
 DURESS, i. 169. 
 DUNNAGE, master's duty as to, ii. 3. 
 
 E. 
 
 EAST INDIES, productions of, transported in British vessels, i, 41. 
 EMBARGO, whether gives ground to claim demurrage, i. 314.j
 
 824 INDEX. 
 
 EMBAUGO —Continued. ' 
 
 charterer liable for time lost by, i. 318. 
 suspends contract for carrying goods, i. 329, 330. 
 detention by, wages and provisions not subject to average, i. 398. 
 EMBEZZLEMENT, by master or crew, ii. 94. 
 
 a bar to salvage, ii. 310. 
 ENROLMENT. See Registry and Navigation Laws. 
 ENTRY, of appearance in admiralty, ii. 504. 
 EQUITABLE INTERESTS, disclosure of, to obtain registration or enrolment, i. 34, 
 
 42, 43, n. 
 EQUITY, jurisdiction of, over bottomry bonds, i. 169. 
 
 EQUITY JURISDICTION AND PRACTICE OF COURTS OF ADMI- 
 RALTY, ii. 344-346. 
 courts of admiralty not strictly courts of equity, ii. 344. 
 
 and cannot take cognizance of a bill in equity under disguise of a libel, ii. 344. 
 but governed in general by similar principles, ii. 344. 
 cannot reform policy of insurance, ii. 344, n. 1. 
 have not equitable jurisdiction of court of equity, but apply principles of 
 
 equity to subjects within jurisdiction, ii. 344, n. 1. 
 condemnation against one party in default or contumacy, does not prejudice 
 
 rights of others, ii. 344, 345. 
 agreement, under clear mistake, may be set aside, ii. 345. 
 case may be reopened, ii. 345. 
 but courts reluctant to do this, il. 345. 
 
 and negligence or oversight, no sufficient ground, ii. 345, n. 3. 
 fraud necessary, ii. 345, n. 3. 
 
 construction of contracts less rigorous than at law, ii. 345. 
 as to wages of seamen, ii. 345, n. 4. See Seamen. 
 as to salvage, ii. 345, n. 4. See Salvage. 
 as to bottomry, and lien of material men, ii. 345, n. 4. 
 customs greatly regarded, ii. 346. 
 but not those of particular places, ii. 346. 
 unless made a part of contract, ii. 346. 
 ERASURE. See Alteration. 
 
 EVIDENCE, of national character, from register, i. 42 - 49. See Registry and Naviga- 
 tion Laws, IV. 
 of ownership, from register, i. 39, 40 - 49. See Registry and Navigation Laws, IV. 
 of continuation of ownership, i. 44, 45. See Registry and Navigation Laws, IV. 
 proof of infractions of registry laws, i. 38. 
 
 rules of, as applied to the sale of ship, i. 86 - 89. See Sale of Skip, VIII. 
 burden of proof to show how loss or injury to goods shipped under bill of 
 lading occurred, i. 189, n. 2. 
 as to ability of master to obtain a second cargo, when char- 
 terer refuses to take first, i. 295, 296. 
 of necessity, authorissing bottomry, i. 147, 149. 
 of fraud in procuring bottomry, i. 148, 149. 
 on owners to fix fault upon pilot in charge of vessel, in order 
 to relieve themselves from liability, ii. 115. 
 rales of, in collision cases, i. 537, 538. 
 speed of steamer, question of fact, i. 575.
 
 INDEX. 825 
 
 EVIDENCE —Con^wwerf. 
 
 of shipping articles, ii. 35. 
 
 parol, to vary charter-party, i. 275. 
 
 to contradict bill of lading, i. 188 -191, and n. 
 
 to supply omission in, or to vary, shipping articles, ii. 44 - 46. 
 
 to show false inducements, held out to seamen to sign shipping articles, 
 
 ii. 45. 
 to contradict log-book, ii. 103, n. 1. 
 EVIDENCE in admiralty. See Trial, ii. 435 - 454. 
 EXCEPTED PERILS in bill of lading. See Bill of Lading. 
 EXCEPTIONS, bill of, in admiralty, ii. 425. 
 EXECUTION. See Final Process, ii. 494, 495. 
 EXECUTORS, testimony of, ii. 437. 
 EXPERTS, testimony of, ii. 438-440. 
 
 FACTOR, purchase from, of goods in transit, effect upon consignor's right of stop- 
 page in transitu, i. 509 -511. 
 FATHER, right of to wages of minor child, ii. 57, 58. 
 FAULTS, sale of ship, "with all her faults," i. 87. 
 
 FEMALE, serving on board ship has rights and disabilities of sailor, ii. 183. 
 FERRY-BOATS, -when common carriers, i. 247, n. 
 
 bound to what rules of navigation, i. 572, 573. 
 FINAL DECREE, ii. 215. 
 FINAL PROCESS in admiralty, ii. 494, 495. 
 
 provided for by rule of court, ii. 494. 
 
 from court in one State, may be executed in any other, ii. 495. 
 
 or in any Territory, ii. 495. 
 
 but must issue from, and be returnable to court rendering judgment, ii. 495. 
 
 may be executed in anj' part of State, ii. 495. 
 
 must be returned to court rendering judgment, ii. 495. 
 
 whether it may issue against land of defendant, ii. 414, 495. 
 FIRE, accidental, ship-owners liable for damage to goods by, when, i. 255, 256, n. 
 FISHING, lines and stores, as appurtenant to ship, i. 79, n. 
 
 voyage on shares, i. 282 
 
 master's power to hire seamen, ii. 11, and note, 
 hiring sailors in, upon shares, ii. 57. 
 FITZHERBERT, i. 5. 
 FLAG, nationality presumed from, ii. 478. 
 FLAT-BOATS, when common carriers, i. 247, n. 
 FLETA, i. 5. 
 
 FLOGGING, of seamen, ii. 88 - 97. See Seamen, VIII. 
 FOREIGNERS, rights of, under registry laws. See Registry and Navigation Laws ; 
 
 Sale of Ship, V. 
 FOREIGN ATTACHMENT. See Mesyie Process, ii. 392 - 394. 
 FOREIGN COURTS OF ADMIRALTY. See Admiralty, ii. 223 - 230. 
 FOREIGN DECREE, effect of, i. 74, 75. 
 FOREIGN PORT, agency of master at. See Master. 
 
 authorizing master to make bottomry bond, i. 140-147. See Bottomry and 
 Respondentia, III.
 
 826 INDEX. 
 
 FOREIGN VESSELS. See Registry and Navigation Laws. 
 
 lien on, of material men, different from lien on domestic vessels, ii. 142 - 146. 
 FOREIGN VOYAGE. See Registry and Navigation Laws. 
 FORFEITURE, what subjects to. See Registry and Navigation Laws. 
 
 effect of, i. 59, n., 60, n. 
 
 sale of ship for, i. 74. 
 FORGERY, of ship's papers, forfeiture for, i. 37, 40. 
 FORWARDING, of goods, i. 231-239. See Carriage of Goods, VL 
 FREIGHT. See Charter-Party ; Carriage of Goods. 
 
 duty of ship's husband as to, i. 109, 110, n. 
 
 mortgagee whether entitled to, i. 48, n. 
 
 carriage of goods on, i. 170- 183. See Carriage of Goods, I. 
 
 contract for, when entire, so that none earned until voyage is completed, and 
 ship-owner must transport in another vessel if original voyage is broken up, 
 i. 231 - 239. See Carriage of Goods, VI. 
 
 pro rata. See Carriage of Goods, i. 239 - 245, VII. See Charter-Party, II., 
 IV., VI. 
 
 conditions precedent to action for, 1. 225. 
 
 hypothecation of, i. 159. 
 
 as determining possession, i. 280. 
 
 what freight is to be paid upon certain goods, for the carriage of which no rates 
 are specified, sent with other goods, to which rates are fixed, i. 291, 292. 
 
 to be deducted from the value of goods contributed for in general average, i. 460. 
 
 contributory value of, in general average, i. 449 - 454. 
 
 what freight to be contributed for, i. 430. 
 
 upon stoppage in transitu, vendor to indemnify vendee for, i. 524. 
 
 master's right to certain portion of, ii. 4, and n. 
 
 limitation of ship-owner's liability in certain cases to value of ship and freight, 
 ii. 120-140. 
 
 the mother of wages, ii. 70. 
 
 portion of, given to sailors as wages, ii. 47. 
 
 in cases of prize. See Admiralty Jurisdiction, ii. 253 - 259. 
 FRAUD, as impeaching sale, i. 76, n., 87, n. 5. 
 
 of one part-owner against others, i. 124. 
 
 in obtaining delivery of goods, as affecting lien of ship-owner, i. 1 78, n. « 
 
 as avoiding bottomry bond. See Bottomry and Respondentia. 
 
 in representations as to burden of vessel, i. 283. 
 
 of party buying goods from consignee as against consignor, i. 508. 
 FURNITURE, of ship, what included by term, i. 79. 
 FRUIT, decay of, ship-owner not liable for loss occasioned by, i. 260. 
 
 G. 
 GARNISHEES. 
 
 liability of, in admiralty. See Mesne Process, ii. 393, 394. 
 GENERAL AVERAGE, i. 338-478. 
 I. Meaning of, i. 338-346. 
 
 means loss of part of property averaged upon the whole, i. 338. 
 origin of, and early meaning not certain, i. 338, n. 2. 
 
 " partial loss," and " particular average," understood to mean the same thing 
 iu United States, i. 338, n. 2.
 
 INDEX. 
 
 827 
 
 GENERAL AYER AGE— Continued. 
 
 one of the most ancient rules now in force, i. 339. 
 
 in force a thousand years before the Christian Era, i. 339. 
 
 right to claim average compensation purely maritime, i. 339. 
 
 and similar circumstances in land contracts, held not to give the right to 
 
 average, i. 339. 
 held not to be enforced at common law, i. 339 - 342. 
 nor over lake navigation, i. 342. 
 but since held otherwise, i. 342. 
 
 and admiralty jurisdiction extended by statute, i. 343. 
 law of, now applied to all cases occurring on Western waters, i. 343. 
 has been held applicable to case arising under fire policy, i. 343. 
 law merchant a part of common law, i. 19-23, 344. 
 rules of, founded on justice and expediency, i. 344. 
 
 insurers bound to indemnify for loss by contribution for general average, i. 344. 
 this illustrated, i. 344. 
 
 owner of goods lost, not to be repaid full value, i. 345. 
 but only in proportion, i. 345. 
 this ascertained by adding together value of all property saved, and that of all 
 
 lost, and finding proportion one bears to the other, i. 345. 
 principles somewhat obscure, i. 345, 346. 
 and adjudications on some points uncertain, i. 346. 
 II. Sacrifice must be Voluntary, i. 346-351. 
 
 voluntariness of loss foundation to claim for compensation, i. 346. 
 jettison to lighten ship, most ancient form of voluntary sacrifice, i. 347. 
 
 so if jettison is made to get at leak, i. 347. 
 
 must be intended as means of saving property, i. 347. 
 
 if otherwise, no claim for compensation, i. 347. 
 
 and master should enter in log-book all facts and circumstances of, i. 348. 
 
 and a distinct statement of property jettisoned, i. 348. 
 
 but neglect so to do will not effect rights of interested parties, i. 348. 
 
 not necessary that property should be intentionally destroyed, i. 348. 
 
 enough if voluntarily exposed to danger, for purpose of promoting safety of 
 ship or cargo, and so destroyed, i. 348, 349. 
 
 if part of cargo, with this purpose, is put in boats and lost while on way to 
 shore, claim good, i. 349. 
 
 although it was hoped goods would reach shore in safety, i. 349. 
 
 so if damaged, having been put on beach after stranding of vessel, i. 349. 
 
 otherwise if put in boats only to save goods so laden, i. 349. 
 
 even though ship was thereby relieved, i. 350. 
 
 but in practice supposition would generally be that goods were imperilled to 
 save ship, i. 351. 
 
 unless otherwise distinctly apparent, i. 351. 
 
 jettison usually applied to cargo only, i. 351. 
 
 but there may be jettison of parts of ship, i. 351. 
 
 if masts are cut away, or sails and rigging cast off, loss must be averaged, 
 i. 351. 
 
 so if cables or anchors are thrown over, i. 351. 
 
 or provisions, i. 351. 
 
 but this must be done to save ship, i. 351.
 
 828 INDEX. 
 
 GENERAL AVERAGE —Contmned. 
 
 III. Sacrifice must not be by Eault of Owner,!. 352-359. 
 ancient rule that goods must not be carried on deck, i. 352. 
 reasons for this rule, i. 353. 
 
 if so carried and jettisoned, no claim for contribution, i. 353, n. 2. 
 
 otherwise if proper so to carry goods, i. 354. 
 
 this to be determined by custom, i. 354. 
 
 steam vessels excepted from working of this rule, i. 355. 
 
 because carrying goods on deck does not so much increase difBculty of navigat- 
 ing, i. 355. 
 
 and law in regard to must be relaxed, i. 355, n. 
 
 if custom so to carry is well known to insurers they are liable for jettison t& 
 save ship and cargo, i. 356. 
 
 whether owners of other parts of cargo should contribute for jettison of goods 
 so carried, i. 356. 
 
 American authority against claim for, i. 356. 
 
 otherwise in England, i. 357. 
 
 this question discussed, i. 357. 
 
 if owner of ship knows that goods were so carried, i. 357. 
 
 master's knowledge his knowledge, i. 357. 
 
 if goods thus jettisoned were put on deck against knowledge and consent of 
 shipper, ship should pay him not as contribution, but compensation, i. 357. 
 
 no claim allowed for cutting away of boat, i. 358. 
 
 whether insurers are liable for such loss, i. 358. 
 
 practice of, variable, i. 359. 
 
 if underwriters refuse to pay, burden of proof on them to show that boat was 
 improperly so carried, i. 359. 
 
 so held in Massachusetts, i. 359. 
 
 IV. Loss MUST NOT BE CAUSED BY PeRIL OF THE SeA, i. 359-362. 
 
 difficulty of determining whether exposure to risk was voluntary; or a peril of 
 
 the sea, i. 359. 
 illustration of this, i. 359, 360. 
 
 loss of spars and sails while endeavoring to escape from danger of wreck, i. 360. 
 held to be contributed for, on Continent of Europe, i. 360. 
 so, if goods are given as ransom, i. 360. 
 not to be contributed for, if forcibly taken by captor, i. 361. 
 if jettisoned to prevent capture, not a general average loss, i. 361, 362. 
 and not to be contributed for, i. 362. 
 salvage paid for recapture is to be contributed foi-, i. 362. 
 
 V. Consequences op Sacrifice, i. 363 -370. 
 
 loss to be contributed for, extends to consequential damages, i. 363. 
 
 but not, unless caused by voluntary act, i. 363. 
 
 if valuable goods brought on deck to enable less valuable to be jettisoned, and 
 
 these are lost, contribution can be claimed, i. 364, 365. 
 so, if water thrown into ship's hold to extinguish fire damages goods, i. 365. 
 rule of causa proximo, non remota spectatiir to be applied, i. 365. 
 and this often very difficult, i. 365. 
 the meaning of this rule examined, i. 365, 366. 
 cause considered proximate as to general average, though intermediate cause 
 
 produces loss, i. 366.
 
 INDEX. 
 
 829 
 
 GENERAL AVEUAG^— Continued. 
 
 if this conies in naturally, i. 366. 
 
 if cargo of ice is wasted by opening of hold to put in new mast, when this to 
 
 be contributed for, i. 366. 
 whether cable, cut by dangerous bottom while endeavoring to avoid wreck 
 
 should be, i. 367. 
 not a general average loss, i. 367. 
 though usually paid for as, i. 367. 
 loss of cable may or may not be, i. 368. 
 depending on circumstances, i. 368. 
 
 master must do all in his power to facilitate recovery of, i. 368. 
 *■ difficulty of deciding, when boats, anchors, or canvas are lost, i. 368. 
 
 only to lie contributed for when voluntarily cut away, i. 368. 
 illustrations of this, i. 369, 370. 
 
 loss by ship in beating off enemy not to be contributed for, i. 369. 
 but if vessel lowers boat with intent of deceiving enemy, and boat is 
 lost, this must be, i. 370. 
 expenses of convoy not a general average loss, i. 370. 
 unless made necessary by extraordinary circumstances, i. 370. 
 so if masts are blown overboard and are cut away from side of ship, i. 370. 
 no sufficient reason for this, i. 370. 
 
 VI. Voluntary Stranding, i. 371 -376. 
 conflict of authorities in regard to, i. 371. 
 
 if vessel is stranded by force of winds and tides, no general average loss, i. 371 . 
 
 whether, if in danger of going on rocks, vessel is, by act of master, forced on 
 smooth beach, and can only be got off at great cost, this is general average 
 loss, i. 371. 
 
 held to be, if got off, i. 371. 
 
 otherwise, in a later case, i. 37^ 
 
 later decision that loss or recovery do not affect owner's obligation to contri- 
 bute, i. 372. 
 
 this now the law, i. 372. 
 
 though held otherwise in New York, i. 372. 
 
 the principle discussed, i. 373 -376. 
 
 amount of contribution to be made, that only of ship, when captain endeavors 
 to choose place, i. 374. 
 
 if master had chance to save ship and threw this away to save cargo, cargo 
 should contribute, i. 374. 
 
 some American cases hold differently, i. 374. 
 
 these not reconcilable, i. 374. 
 
 cases stated, i. 375, 376. 
 
 VII. Sale by the Master, i. 377-380. 
 when such sale to be contributed for, i. 377. 
 resembles loss by jettison, i. 377. 
 
 if sale is for benefit of ship, ship-owner should pay owner of cargo for loss on 
 
 sale of goods, i. 378. 
 and if for benefit of cargo, ship should not contribute, i. 379. 
 no general average loss, if cargo was sold because perishable, i. 379. 
 or for any other cause except extraordinary peril, i. 379. 
 assertion that the power of selling cannot extend to the whole cargo, i. 379.
 
 830 INDEX. 
 
 GENERAL AY-ERAGE— Continued. 
 
 this doubted, if sale is for the benefit of ship, i. 379. 
 
 as it would be obliged to make compensation, i. 379. 
 
 if cargo, sold at port of distress, realizes full value, no contribution to be made, 
 
 i. 379. 
 this not the same as jettison, i. 379. 
 
 if sale of property of shipper is necessary, master acts as his quasi agent, i. 380. 
 this principle discussed, i. 380. 
 VIII. Expenses included in, i. 381 -402. 
 
 extraordinary expenses are to be contributed for, i. 381. 
 
 law and practice as to what are, somewhat uncertain, i. 381. 
 
 consequential expenses are to be, i. 381. 
 
 and also direct expenses, i. 381. 
 
 and sometimes expenses by themselves, i. 381. 
 
 as expenses of ransom and repair, i. 382. 
 
 expenses relating to seaworthiness of ship are not, i. 382. 
 
 unless repair made necessary by an extraordinary peril is required for general 
 
 benefit, i. 383. 
 so exjienses of pilotage, i. 383. 
 or to guard property, i. 383. 
 
 or to remove obstructions by ice or otherwise, i. 383. 
 or expenses in port of distress, i. 383. 
 unless ship was driven in by extraordinary peril, i. 383. 
 when steam vessel, driven into port of distress, bought coal to proceed to port 
 
 of final repair, held that this was not a general average charge, i. 383, 384. 
 expenses of crew in port of distress are, i. 384. 
 if occasioned by general average loss, i. 385. 
 whether, when cause of loss was not general average, i. 38.5. 
 held not to be, in England, i. 385. 
 held to be, in America, if repairs are necessary for safety of ship and cargo, 
 
 i. 385. 
 wages and provisions of crew, during repair after wreck, not general average, 
 
 i. 386. 
 expenses incurred in efforts to recover captured vessel are a general average 
 
 charge, i. 387. 
 whether, if crew are detained during such proceedings, their expenses are, 
 
 i. 388. 
 held that they are general average, i. 389, 390. 
 
 whether, if master could have discharged crew and obtained another, i. 390. 
 this within the master's discretion, i. 390, 
 which must be exercised honestly, i. 390. 
 wasteful expenditures are not to be contributed for, i. 390. 
 cases illustrating this, i. 390. 
 if ship be stranded by peril, unsuccessful attempt to get her off paid by ship 
 
 alone, i. 390. 
 so if rigging is blown away, i. 391. 
 whether cost of getting vessel off, and carrying goods to destination, is loss of 
 
 ship-owner only, i. 391. 
 held to be general average in America, i. 391. 
 otherwise in England, i. 391.
 
 INDEX. * 831 
 
 GENERAL AVERAGE —Confirmed. 
 
 cost of repairs rests on ship, i. 392. 
 
 unless made for benefit of cargo, i. 392. 
 
 if expenses are for benefit of particular portion of common property, this 
 
 alone liable, i. 393. 
 if goods liable to contribution are landed, and expenses are afterwards incurred, 
 
 these not liable therefor, i. 393. 
 but held otherwise, i. 393. 
 expenses of floating vessel after cargo is landed charged to general average, 
 
 i. 394-396. 
 whether expenses of detention for cause other than repair are, i. 397, 398. 
 voluntariness a test in such cases, i. 398. 
 detention by embargo gives no claim, i. 398. 
 so of quarantine, i. 399. 
 or while waiting for convoy, i. 399. 
 
 expenses of detention before voyage begins give no claim, i. 399. 
 unless made necessary by extraordinary exigency, i. 400. 
 and not incurred for the exclusive benefit of one of the interests, i 400. 
 incidental expenses of raising funds which are a general average loss, must be 
 
 contributed for, i. 400. 
 as brokerage, premiums, and extra interest, i. 400. 
 so maritime interest on bottomry or respondentia, i. 401. 
 owner of hypothecated goods which are lost has no claim for contribution, 
 
 i. 401. 
 if cargo is hypothecated in respondentia for benefit of ship and cargo, and ship 
 
 is lost, owner has no claim, i. 401. 
 if goods only are hypothecated for benefit of both ship and cargo, this general 
 
 average, i. 401. 
 expense of transshipment is not, i. 402. 
 Cases to be compensated for which are not Genei-al Average, i. 402. 
 
 when necessary to destroy another ship to save one in question, i. 
 
 402. 
 if injuries of this nature are inflicted on ship, expenses of obtaining 
 indemnity chargeable to all interested, i. 402. 
 IX. Sacrifice must be successful, i. 403 - 408. 
 reason of this obvious, i. 403. 
 and rule never questioned, i. 403. 
 but subordinate questions have been raised, i. 403. 
 ■when, if vessel is saved by jettison, and afterwards lost, contribution due, 
 
 i. 403. 
 unless same peril was only temporarily avoided, i. 403. 
 
 if repairs necessary to safety of ship are made, expenses thereof become gen- 
 eral average loss only when such repairs enable ship to pursue her voyage, 
 i. 404-406. 
 intention not sufiScient, i. 406. 
 when vessel was captured and voyage abandoned, but ship afterwards returned 
 
 home, held that expenses after capture could not be averaged, i. 406. 
 if part of cargo is saved, it contributes proportionally, i. 406. 
 if master expends money in endeavoring to release ship from capture without 
 success, no general average loss, i. 406.
 
 832 ' INDEX. 
 
 GENERAL AVERAGE — Continued. 
 
 otherwise if master and agent of shippers concur in so doing, i. 406. 
 if jettison is made, but ship is saved by other means, so that the necessity 
 therefor is not apparent, held that no contribution can be chiimed, i. 
 407, 408. 
 when and why, part saved should contribute, i. 408. 
 X. Sacrifice must be necessary, i. 409-413. 
 if not, no cUiim for contribution, i. 409. 
 
 formerly master obliged to consult crew before making jettison, i. 409. 
 this done away with, i. 409. 
 master must have peremptory authority, i. 410. 
 
 held to be his duty alone to determine as to. necessity of jettison, i. 411. 
 only effect of consultation to show deliberation, i. 411. 
 cases under this head rare, i. 411. 
 
 if jettison is justified by circumstances, and these were caused by fault of mas- 
 ter, no claim for contribution, i. 411. 
 and owners of ship liable to owners of goods, i. 411. 
 
 so, if unseaworthiness at time of sailing causes jettison, loss not general av- 
 erage, i. 411. 
 or materially contributes thereto, i. 411. 
 necessity must be pecuniary, i. 412. 
 
 jettison in order to make room for passengers taken from shipwrecked ves- 
 sel, is no general average loss, i. 412, 413. 
 XI. Where Property sacrificed would have been lost, i. 413-415. 
 held that in such case no claim for contribution, i. 413. 
 this doctrine questioned, i. 413. 
 where cargo already on fire is destroyed by water, no claim for contribution, 
 
 i. 414. 
 if goods nearest at hand are thrown over to lighten ship, claim for contribu- 
 tion good, i. 415. 
 XII. Adjustment of General Average, i. 415. 
 
 process of deciding amount of contribution so called, i. 415. 
 XIII. What Losses are adjusted as, i. 415-421. 
 all interested shall suffer proportionally, i. 416. 
 property sacrificed considered a part of the whole property in adjustment, 
 
 i. 416. 
 and valued in accordance with value of that saved, i. 416. 
 if nothing is saved, no contribution, i. 416. 
 
 distinction between actual general average and expenses incurred for common 
 benefit in some cases, i. 416. 
 
 this sometimes difficult to apply, i. 416. 
 
 when loss is properly general average, property saved contributes 
 
 only, i. 416. 
 but justifiable expenses may create personal debt, i. 416. 
 and tliis to be paid with no reference to result of expenses, i. 416. 
 and principles of general average will control its apportionment, 
 i. 416. 
 goods sold in foreign port to raise funds to be contributed for, i. 417. 
 80 if, to raise ransom, i. 417. 
 whetlier, if expenses are ineffectual, i. 417.
 
 INDEX. 833 
 
 GENERAL AVERAGE —Continued. 
 
 not well settled in England and America, i. 417. 
 
 on the Continent, reimbursemeat by ship-owner held necessary, i. 417. 
 
 this rule adopted in one English case, i. 417. 
 
 but text-writers hold differently, i. 418. 
 
 this question discussed, i. 418-421, 
 
 XIV. When Loss of Ship is adjusted as, i. 422-427. 
 entire loss of, only in case of voluntary stranding, i. 422. 
 but partial injury to be contributed for, i. 422. 
 
 term "ship" includes appurtenances, i. 422. 
 
 and all necessaries for voyage, i. 422. 
 
 and if lost, adjusted on same ground as goods, i. 422. 
 
 difficulty of distinguishing between vohmtary loss and one by perils of navio-a- 
 tion, i. 422. ° 
 
 if anchors are slipped, or cable cut to avoid losing convoy, loss general av- 
 erage on the Continent of Europe, i. 422. 
 
 not so in England, i. 423. 
 
 no case in America under this head, i. 423. 
 
 loss of property adjusted as general average when voluntarily exposed to peril 
 causing its destruction, i. 423. 
 
 whether loss of sails set to draw ship away from danger is to be adjusted as 
 general average, depends on circumstances of case, i. 423. 
 
 cables cut for the purpose of putting to sea to escape lee-shore in storm held to 
 be contributed for, i. 423. 
 
 so if anchor is lost by impossibility of weighing in unusual place resorted to 
 as a haven, i. 424. 
 
 loss of rigging in usual course of navigation, not general average, i. 424. 
 
 if any part of ship or appurtenances are applied to use other than ordi- 
 nary, part destroyed or rendered useless to be adjusted as general average 
 i. 425. ' 
 
 damage done to ship by fighting is not, if ship is armed, i. 426. 
 
 opinion of text-writers that this should be limited to ships of war, i. 426. 
 
 these opinions dissented from, i. 426. 
 
 damage to ship while extinguishing fire to be contributed for, i. 427. 
 
 XV. When the Cargo should be contributed for, i. 427-429. 
 when jettisoned, i. 427. 
 
 or when sold to raise funds, i. 427. 
 
 if injured by water used to extinguish fire, i. 427. 
 
 whether, if goods themselves are on fire, and water is used to extinguish, ship 
 should contribute for damage by, i. 428. 
 
 this question discussed, i. 428. 
 
 cargo may claim for consequential damages, i. 429. 
 
 case illustrative of this, i. 429. 
 XVI. When Loss of Freight should be adjusted as, i. 430, 431. 
 
 if goods are jettisoned, i. 430. 
 
 in adjusting, value taken is gross freight at port of contribution, i. 431. 
 
 only net freight saved contributes, i. 431. 
 
 usage determines, i. 431. 
 
 deduction one half in New York, Virginia, Alabama, Georgia, Texas, and 
 California, i. 431. 
 VOL. II. 53
 
 834 INDEX. 
 
 GENERAL AVERAGE —Continued. 
 same in Havre, i. 431. 
 one third in Massachusetts, Maine, Pennsylvania, Maryland, and Louisiana, 
 
 i. 431, 
 in England, from gross freight including primages, wages and port charges 
 are deducted, and remainder contributes, i. 431. 
 XVII. When Loss of Profits should be adjusted as, i. 431. 
 
 if entering into valuation of goods, a loss of which is adjusted, i. 431. 
 never on ground of expectancy, i. 431. 
 XVIII. What Expenses should be adjusted as, i. 432 - 444. 
 Powers and Duties of Master, i. 432. 
 
 these relate mainly to navigation of vessel, i. .432. 
 
 control of all on board, i. 432. 
 
 care of ship and property, i. 432. 
 
 cannot by virtue of general powers, borrow money on responsibility of 
 
 ship-owner, or sell ship or cargo, i. 432. 
 but may if justified by sufficient necessity, i. 432. 
 and, if justified may bind ship-owner or shipper by his acts, i. 432. 
 may sell the vessel, i. 433. 
 
 but loss by such sale will not be adjusted as general average, i. 433. 
 may sell goods if perishable, i. 433. 
 may borrow money on ship or cargo, in such way as to make general 
 
 average claim, i. 434. 
 or may sell a part of cargo in the same way, i. 434. 
 and adjuster will cast a loss by expenses, on parties benefited, if loss 
 
 is necessary and justifiable, i. 434. 
 if not, on wrong-doer, i. 434. 
 necessity difficult to determine, i. 434. 
 different degrees of necessity justify different acts, i. 434. 
 as, repairs may be made, and owners bound for expenses thereof if 
 
 desirable, i. 434. 
 but large and expensive ones must be justified by great expediency, i. 434. 
 if master sells part of cargo without authority, ship-owner liable, i. 435. 
 distinction made by text-writers between claims arising from sacrifices and those 
 
 from expenses, i. 435. 
 this distinction unreal, i. 435. 
 voluntariness, necessity, and effectiveness required in all general average 
 
 claims, i. 435. 
 only that part of property benefited by expenses liable therefor, i. 435. 
 expenses of any act founding claim for general average loss, to be adjusted as 
 
 part of, i. 436. 
 if ship put in for repairs under such circumstances, expenses of pilotage, tow- 
 age, and watchmen to be adjusted, i. 436. 
 so of men hired to assist in pumping ship, i. 437. 
 or cutting a way for ship through ice, i. 437. 
 so far as such expenses are for common benefit, i. 437. 
 if ship could be repaired without unloading, and cargo is unloaded for its own 
 
 benefit, expenses thereof to be charged to cargo only, i. 438. 
 60 if ship's stores are taken out, i. 438, 
 how far English law different, i. 438.
 
 INDEX. 835 
 
 GENERAL AVERAGE —Continued. 
 
 no general average loss unless necessary by voluntary destruction of 
 some part for common benefit, i. 438. 
 in America any going out of course for necessary repairs a voluntary loss, 
 
 i. 438. 
 great diversity in laws of mercantile states in regard to, i. 443, 444. , 
 
 XIX. Valde of Contributory Interests, i. 444 - 463. 
 A. Of the Ship, i. 444 - 449. 
 
 no uniformity in rules concerning, i. 444. 
 
 ancient rules no longer in force, i. 444. 
 
 compendium of, i. 444, 445, n. 
 
 value of to be estimated at time and place of adjustment, i. 446. 
 
 in practice, if ship is sold, price received fixes her contributory value, i. 447. 
 
 but this not always correct, i. 447. 
 
 one fifth off value at time of sailing held to be in some States, i. 448. 
 
 but this not applicable when value can be ascertained more correctly, i. 448. 
 
 value of ship at port of departure, with reasonable deductions for wear and 
 
 tear, the present rule, i. 448, 449. 
 these deductions to be determined by best evidence obtainable, i. 449. 
 contribution to ship for damage caused, to be actual cost of repairs, i. 449. 
 or estimated cost if not made, i. 449. 
 
 B. Of Freight, i. 449-454. 
 none unless earned, i. 449. 
 
 and only so much as is earned, i. 449. 
 
 but expenses of ship a fair charge against, i. 449. 
 
 so much of the freight contributes as is saved by the sacrifice, i. 449. 
 
 but not for subsequent expenses, i. 450. 
 
 difiiculty of applying this rule, i. 451. 
 
 in New York freight contributes on one half of gross amount earned, i. 451. 
 
 general rule to apportion on two thirds of value of, i. 451. 
 
 whole freight contributes if payable at end of voyage, i. 452. 
 
 if otherwise, circumstances of each case decide, i. 452, 453. 
 
 if freight is transshipped, contributory freight is excess over cost of transship- 
 ment, i. 453, 454. 
 
 charterer and not ship-owner contributes to general average if freight is paid in 
 advance by terms of charter-party, i. 454. 
 
 provided such freight is not reimbursable if ship does not arrive, i. 454. 
 
 C. Of Goods, i. 454 - 463. 
 
 all goods carried for purposes of trafiic contribute, i. 454. 
 but baggage of passengers does not, i. 455. 
 provisions for passengers do not, i. 455. 
 size and bulk of goods of no account, i. 456. 
 precious metals and stones contribute, i. 456. 
 bank-bills do not unless carried as merchandise, i. 457. 
 goods on deck contribute, though not contributed for, i. 457. 
 this the uniform practice, i. 457. 
 
 whether public property contributes not positively determined, i. 458. 
 held liable in America, i. 458. 
 
 contributory value of goods, that at time and place where considered finally 
 saved, i. 460.
 
 836 INDEX. 
 
 GENERAL AVERAGE— Co«<mMe(/. 
 
 this maybe ascertained by sale, i. 461. 
 or bj' known market value, i. 461. 
 or, in absence of these, by invoice value, i. 461. 
 
 adding commissions, and premium of insurance if not already done, i. 462. 
 , only value saved, contributes, i. 462. 
 
 and only so much of that as was at risk, i. 462. 
 exceptional case to this rule, i. 463. 
 XX. Of the Force and Effect of Adjustment, i. 464, 465. 
 
 adjustment made in good faith, and with full knowledge of facts, binding on 
 
 parties, i. 464. 
 law as to, in England, doubtful, i. 464. 
 agreed adjustment to be held binding on parties, i. 465. 
 rights of parties depend upon actual character of charges made by adjuster, 
 
 i. 465. 
 and not on name by him given to them, i. 465. 
 XXI. Of Foreign Adjustment, i. 465-472. 
 
 home port proper place for adjustment, i. 465. 
 
 foreign adjustment, if necessary, binding upon parties to it, i. 466. 
 
 adjustment may be delayed as long as contributory interests keep together, 
 
 i. 466. 
 and should be delayed till vessel reaches port of final destination, if possible, 
 
 i. 466. 
 if interests are separated, adjustment to be made at port where separation first 
 
 takes place, i. 466. 
 and binding, if in good faith, i. 466. 
 uncertainty in regard to, arises from rule that adjustment is to be made under 
 
 laws and practices of place where made, i. 467, 468. 
 reasons for this rule, i. 469, 470. 
 the rule discussed, i. 471. 
 party affected by foreign adjustment is not estopped from denying a claim for 
 
 contribution, though thereby questioning the necessity for any adjustment, 
 
 i. 472. 
 XXII. Enforcement of Payment of Contributory Shares, i. 472-478. 
 
 owners properly assessed liable in action to party to whom the contribution 
 
 assessed is due, i. 472. 
 consignee not liable as such, i. 472. 
 
 and may refuse to receive goods on which contribution is payable, i. 472. 
 act of receiving by, no implied promise to pay contribution, i. 472. 
 otherwise, if clause in bill of lading stipulated that such charges' were payable 
 
 before delivery of goods, i. 473. 
 master, as agent for all concerned, has lien for contributory shares on all goods, 
 
 i. 473. 
 and may refuse to deliver goods without payment therefor, i. 473. 
 but may take a bond for payment of the share, i. 473. 
 this now the general practice, i. 473. 
 whether master is bound to retain goods, i. 474. 
 contributor discharged, if master fraudulently keeps contributory share duly 
 
 I)aid, i. 474. 
 no usage or law in England binding him to collect, i. 474.
 
 INDEX. 837 
 
 GENERAL AVER AG'S.— Continued. 
 
 but otherwise in America, i. 475. 
 
 if shipper loses share to which he is entitled, by neglect of master, ship-owner 
 
 is responsible, i. 475. 
 if master delivers contributing goods to consignee without payment, he has an 
 
 implied assumpsit for the amount, i. 475. 
 if master takes average bond, exercising due care, and security fails, ship-owner 
 
 not responsible, i. 476. 
 execution of general average bond by consignee does not discharge owner of 
 
 goods, i. 476. 
 one shipper of general cargo paying shares of all held in England to have a 
 
 right of action against others for the amount, 1. 476. 
 no such practice in America, i. 476. 
 
 public property not exempt from liability to contribution in America, i. 476. 
 but suit can only be brought in court of claims, i. 476. 
 but ship-owner has lien against goods of United States for contribution, 
 
 i. 477. 
 maritime law gives lien in rem for this, i. 477. 
 meaning of this, i. 477, 478. 
 GLANVILLE, i. 5. 
 
 GOLD, limitation of carrier's liability for loss of, ii. 123. 
 GOODS ON DECK contribute, though not contributed for, i. 457, 
 GOVERNMENT. See United States. 
 
 ship, lien on of material men, ii. 151. 
 GUARANTOR, right of, to stop in transitu, i. 512. 
 GUARDIANS, testimony of, ii..437. 
 
 H. 
 
 HIDES, duty of master as to preservation of, at sea, ii. 22. 
 HISTORY AND ORIGIN OF THE LAW OF SHIPPING, i. 3 -24. 
 I. Principal Foreign Codes and Writers, i. 3-17. 
 English commerce slight during growth of common law, i. 3. 
 therefore common law does not meet exigencies of commerce, i. 3. 
 usages of merchants early taken as guides, i. 3. 
 law merchant sprung from these usages, i. 4. 
 flexibility of common law, i. 4. 
 law merchant became part of it, i. 4.. 
 and exerted reciprocal influence upon it, i. 4. 
 wherein mercantile usage has modified common law, i. 4. 
 meaning of term " custom of merchants," i. 4, 5. 
 fountains of the common law, — Statham, Fitzherbert, Glanville, Brooke, 
 
 Bracton, Fleta, Britton, Rolle, Sheppard, Coke, — the Reports, i. 5. 
 the law merchant founded in much greater antiquity, i. 5, 6. 
 advantages and superiority of the law merchant over the common law, i. 5. 
 a universal law, i. 5. 
 more equitable, i. 5. 
 fountains of the law merchant, — the books of the civil law, Consolato del 
 Mare, Laws of Oleron, Laws of Wisbuy, Le Guidon, Marine Ordonnance of 
 • Louis XIV., Valin, Pothier, i. 6,
 
 838 INDEX. 
 
 HISTORY AND ORIGIN OF THE LAW OF SRIFPISG — Continued. 
 origin of negotiable paper and insurance, i. 6. 
 antiquity of the law of shipping, i. 6. 
 Rhodian laws, i. 6, 7. 
 Vinnius, i. 6. 
 
 rubrics of the civil law, provisions of, and conformity to modern law, i. 1. 
 study and value of the civil law, i. 5, 7, 8. 
 the Consolato del Mare, i. 8, 9. 
 the Laws of Oleron, i. 9, 10. 
 the Laws of Wisbuy, i. 10. 
 
 the clause of the Laws of Wisbuy relating to insurance, i. 10. 
 Le Guidon, i. 11. 
 
 the Ordonnance of Louis XIV., i. 11. 
 Valin's Commentary, i. 11, 
 Cleirac, Roccus, Casaregis, Pothier, i. 12-14. 
 
 Lord Mansfield created the English commercial jurisprudence, i. 15, 16. 
 Mr. Justice Story created the American, i. 16, 17. 
 
 the different admiralty jurisdictions of England and the United States, 
 i. 16, 17, 
 II. English Adjudication which created or defined this Law, 
 i. 18-24. 
 * ancient respect for the "customs of merchants," i. 18. 
 
 provisions of Magna Charta respecting them, i. 18. 
 whether the courts judicially took notice of them, i. 18 - 22. 
 introduction of witnesses to prove them, i. 19 -22. 
 whether they applied between all parties or merchants only, i. 19. 
 
 statutes favoring merchants, i. 18. 
 by what steps the law merchant became incorporated into the law of Eng- 
 land, i. 18-22. 
 part of the jtis gentium, i. 22 - 24. 
 
 importance of this principle, i. 22 - 24. 
 importance, hopes, and claims of commerce, i. 23, 24. 
 HISTORY, of registry laws. See Registry and Navigation Laws. 
 HOSPITALS, marine hospital fund, ii. 80. 
 
 HOSTAGE, promise of compensation to sailor for becoming, valid, ii. 43, n. 
 HOYMAN, delivery to, i. 222. 
 HYPOTHECATION. See Bottomry and Respondentia. 
 
 ILLINOIS, statute of, allowing actions against vessels by name, i. 121, n. See Part- 
 
 oivners, VII. 
 IMPRISONMENT of seamen, ii. 91, 92, and n. See Seamen, VIII. 
 INDIANA, statute of, allowing actions against vessels by name, i. 121, n. See Part- 
 owners, VII. 
 INDORSEMENT, of bill of lading, i. 193, 195, n. 1, 505, 506, See Carriage of Goods 
 III. 
 of dock warrants, i. 489, n. 1. 
 of bottomry bond, i. 168.
 
 INDEX. 839 
 
 INFANT, shipment, desertion, and wages of, ii. 101, n. See Minor. 
 
 INFORMATION, libel of, ii. 385. 
 
 INSOLVENCY, of one part-owner, rights of the other, i. 107. 
 
 what insolvency gives the right of stoppage in transitu. See Stoppage in Tran- 
 situ, Y., i. 516-520. 
 INSTALMENTS, sale of ship to be paid for by, i. 64, n. 1. See Sale of Ship, III. 
 INSURANCE, origin of, i. 6. 
 
 different insurers liable />ro rata, when, i. 105. 
 
 ship's husband, no power to effect, i. 110, 111, notes 2 and 3. 
 
 ceases upon deviation, i. 171, 172, n. 
 
 of cargo, how far it covers excess of freight caused by transshipment, i. 234, 
 n. 1. 
 
 party obtaining insurance upon, but having no other interest in, materials 
 furnished, has no claim as material man, ii. 144. 
 INSURER, right of to intervene in admiralty, ii. 404. 
 INTEREST, maritime. See Bottomry and Respondentia. 
 
 on bottomry bonds. See Bottomry and Respondentia. 
 
 upon maritime interest, i. 168, n. 2. 
 INTERLINEATION. See Alteration. 
 INTERPLEADER, under Missouri statute, i. 122, n. 
 "INTRINSIC DEFECT," in goods covered by bill of lading. See Carriage of 
 
 Goods, III. 
 IRONS, punishment by, ii. 91. See Seamen, VIII. 
 
 J. 
 
 JETTISON. See General Average. 
 
 JEWELS, contributory value of, in general average, i. 456. 
 
 limitation of carrier's liability for loss of, ii. 123. 
 JOINDER. See Actions, and Suit, ii. 376 - 378. 
 JOINT-TENANTS. See Tenants in Common. 
 JURISDICTION, admiralty, English how differs from American, i. 16, 17. 
 
 extent of. See Admiralty, ii. 159 - 190. 
 
 over proceeds in registry. See Admiralty, ii. 231 - 235. 
 
 See Supreme CouH, ii. 191 - 193. 
 JURISPRUDENCE, ADMIRALTY. See Admiralty Jurisprudence, ii. 236 - 259. 
 JUS AD REM, i. 479-482. 
 JUS IN RE, i. 479-482. 
 
 K 
 
 KEEL, conveyance of, i. 66, n. 
 
 KENTLEDGE, whether part of ship's furniture, i. 79, n. 
 
 " KING'S ENEMIES," exception of damage by, in bill of lading, i. 253 - 256. 
 
 KNIVES, SHEATH, seamen prohibited from wearing, ii. 33. 
 
 LACHES, of purchaser, in taking possession, i. 82, 83. See Sale of Ship, VII. 
 
 in bringing suit, i. 531 ; ii. 361-363. 
 LAKES, admiralty jurisdiction over, ii. 165, 166. 
 LAND, whether process issues against, ii. 414, 415, and notes.
 
 840 INDEX. 
 
 LANDSMEN, cannot sue in admiralty for wages, ii. 1 84. 
 LAUNCH, timely notice to be given of, i. 548 and, n. 
 LAW MERCHANT, origin and nature of, i. 3 - 6. 
 
 superiority of, to common law, i. 5. 
 
 antiquity of, i. 5, 6. 
 
 universality of, i. 5. 
 LAY DAYS, i. 310 - 317. See Charter-Party, V. 
 LEAKAGE, ship-owner not liable for loss by, i. 260, n, 
 LE GUIDON, i. 6, 11. 
 LIBEL, in admiralty. See Suit, ii. 370, 371, 379, 387. 
 
 cross. See Set Off, ii. 433, 434. 
 
 filed in clerk's office, ii. 384. 
 
 for information filed perhaps in court, ii. 385. 
 LICENSE. See Registry and Navigation Laws. 
 LIEN. See Stoppage in Transitu. 
 
 sale of ship to satisfy, i. 74, 121, n., 123, n. 
 
 of builder, i. 64 - 67, n. 
 
 of part-owners and partners. See Part- Owners. , 
 
 of ship's husband, i. Ill, 113, 114. 
 
 under Ohio statute allowing actions against vessel by name, i. 121, n 
 
 under Michigan statute, i. 121, n. 
 
 under Indiana statute, i. 121, n. 
 
 under Illinois statute, i. 121, n. 
 
 under Missouri statute, i. 121, n. 
 
 for services under Missouri statute, i. 122, n. 
 
 effect of sale under Missouri statute to divest otb^r liens, i. 122, n. 
 
 reciprocal, of ship and cargo. See Carriage of Goods, I. 
 
 of a chartered ship on her cargo for the freight, i. 299 - 305. See Charter- 
 Party, m. 
 
 at common law, i. 174, n., 17.5, n. 
 
 of common carrier, i. 175, n. 
 
 under bill of lading, i. 197 - 202. See Carriage of Goods, III., i. 495, 496; See 
 Stoppage in Transitu, III., D. 
 
 by mere deposit of bill of lading, i. 511. 
 
 for freight, and for right to earn freight, before voyage is completed. See Car- 
 riage of Goods, VI. 
 
 of injured, on injuring, ship, for damages in collision, i. 531. 
 
 by bottomry and respondentia. See Bottomry and Respondentia. 
 
 of master on ship and freight for his wages, disbursements, and other dues, 
 ii. 13-20, 24, 25. 
 
 of master as agent of the parties interested, to enforce contribution in general 
 average, 
 
 of seamen for wages, ii. 59 - 64, 
 
 of material men, ii. 141 - 155. See Material Men. 
 
 by local law enforced in admiralty, ii. 170, 171. 
 
 for repairs and supplies. See Repairs, ii. 322 - 337. 
 of material men, ii. 141 - 155. 
 of proctors for costs, ii. 359. 
 LIGHT, duty of ship to show. See Collision, 
 LIGHTER, delivery of goods in, j. 230.
 
 INDEX. 
 
 841 
 
 LlGRTEn— Continued. 
 
 charge for delivering goods by, i. 237, 238. 
 
 service of, whether subject of general average. See General Average. 
 LIGHTSHIP, crew of, entitled to salvage, ii. 267, 268. 
 
 LIMITATION, OF OWNER'S LIABILITY FOR ACTS OF MASTER AND 
 MARINER, ii. 120-140. 
 limitation of owner's responsibility for acts of master and mariners to value 
 
 of ship and freight, ii. 120. 
 ceases by abandonment of them, ii. 120. 
 
 by civil law ; obligations ex contractu and ex delicto, ii. 120, n. 2. 
 by marine ordinance of France of 1681, ii. 120, and n. 3. 
 
 whether this applies to contracts made by the master within the scope 
 of his authority, ii. 120, and n. 4. 
 in England, by statute, ii. 121. See American Statutes, post. 
 in Massachusetts, act of 1818, ii. 121. 
 
 this followed in Maine, act of 1821, ii. 121, n. 
 under present act of Congress, ii. 121. 
 
 ship-owner not liable for loss by a fire, unless, ii. 121. 
 but no limitation as to special contracts, ii. 121. 
 
 this held to apply only to goods on board, ii. 222, and n. 
 and ship-owners liable for loss, while goods were being conveyed 
 to vessel, ii. 122, and n. 
 "design or neglect of owner," meaning of, ii. 122. 
 
 ship-owner not liable for loss by fire under ordinary bill of lading, ii. 122. 
 nature of goods must be stated, ii. 123. 
 not liable for platina, gold, gold-dust, &c., unless, ii. 123. 
 
 what is sufficient description of, ii. 124, 
 liability of, for embezzlement, loss, or destruction of goods, or injury by col- 
 lision shall not exceed value of interest of owner in ship and her freight 
 then pending, ii. 124. 
 owner may surrender his interest to trustees for benefit of injured parties, 
 ii. 124. 
 and be relieved from further liability, ii. 125. 
 value of ship that for which she can be sold, ii. 125. 
 and not estimate of owner, ii. 125. 
 to be ascertained by due appraisement, ii. 125. 
 no deduction for bottomry, mortgage, pilotage, towage, and seamen's 
 
 wages, ii. 125, n. 
 amount of freight, that which would have been earned if voyage had 
 been completed, ii. 125, 126. ' 
 on suit in rem, no personal action can be engrafted, ii. 126. 
 part-owners negligent, to what extent answerable, ii. 126. 
 when owners personally liable for costs, ii. 126. 
 what is loss or damage within Statute 53 Geo. III., ii. 127. 
 
 further adjudication under this statute, ii. 127, and n. 
 in what courts in England owner may institute proceedings to determine his 
 liability, ii. 127. 
 but court will not restrain plaintiff from proceeding because of this 
 
 bill, ii. 127. 
 in order to stay proceedings owner must admit liability, ii. 127.
 
 842 INDEX. 
 
 LIMITATION OF OWISTER'S LIABILITY FOR ACTS OF MASTER AND 
 MARINER —Continued. 
 
 party obtaining judgment in another court before owner institutes pro- 
 ceedings in chancery, entitled to costs, ii. 128. 
 but no other preference, ii. 128. 
 bail given does not increase liability, ii. 128. 
 collision, on high seas between American vessels, ii. 128. 
 
 one in fault cannot claim benefit of statute in England, ii. 128. 
 so if collision is between American and English vessels, owner of former can- 
 not set up either statute as limiting his liability, ii. 128. 
 
 otherwise as to British vessel, if occurring within three miles of British 
 coast, ii. 128. 
 difficult questions under third and fourth sections, ii. 128. 
 primary rule as to interpretation, ii. 128. 
 
 1. when value of ship and freight is to be estimated, ii. 129. 
 
 not raised in England till after passage of 53 Geo. III., c. 59, ii. 129. 
 language of, ii. 129. 
 
 case where master improperly sold cargo and terminated voyage, ii. 129. 
 in collision value held to be that, just before collision occurred, 
 
 ii. 129. 
 wrongful sale, that at time of sale, ii. 129. 
 
 2. whether same rule applies in case of breach of contract of affreight- 
 
 ment and those of collision, ii. 129, 130. 
 
 in affreightment contracts, light of action may depend on cir- 
 cumstances, ii. 129. 
 
 instance of this, ii. 129. 
 
 3. effect of right of abandonment in fourth section, on provisions of third, 
 
 ii. 130- 132. 
 case under Maine statute of 1840, ii. 130, and u. 3. 
 different construction under Massachusetts statute, ii. 130, and n. 4. 
 the question discussed, ii. 131, 132. 
 
 4. whether abandonment is allowed under fourth section in case of col- 
 
 lision, ii. 132, 133. 
 the question discussed, ii. 132, 133. 
 
 5. court in which proceedings may be taken, ii. 134, 135, and notes. 
 
 6. as to liability of part-owner, ii. 136-139, and notes, 
 language of statute, ii. 137, 138. 
 
 justice of limiting it to value of interest, ii. 139, 
 
 difference of opinion in Massachusetts, ii. 139, and n. 
 
 by section three not to exceed value of such owner's interest in ship 
 
 and freight then pending, ii. 139. 
 if cargo is damaged by unseaworthiness of vessel, owner cannot abandon, 
 ii. 139. 
 
 reason for this, ii. 139. 
 freight does not contribute unless, ii. 139. 
 provisions of sec. 5, ii. 139. 
 
 6, ii. 140. 
 
 7, ii. 140, 
 
 not to apply to vessels used in inland and river navigation, ii. 140. 
 vessel on great lakes held not to be within provision, ii. 140.
 
 INDEX. 843 
 
 LIMITATIONS, statute of, does not apply to suits in admiralty, ii. 361. 
 
 LIMITED PARTNERSHIP, action for breach of, will not lie in admiralty, ii. 189. 
 
 LIQUORS, ship-owner not liable for loss occasioned by eiFervescence of, i. 260, n. 
 
 LIS PENDENS, ii. 427. 
 
 LOANS, ship's husband no power to effect, i. 100, n. 3. 
 
 LOG-BOOK, entry upon, of desertion, ii. 100, n. 5. 
 
 LOOK-OUT, duty of ship to keep. See Collision. 
 
 master's duty in rej^ard to, when pilot is on board, ii. 110, 112, and n. 
 LOUIS XIV., marine ordonnance of, i. 6, 11. 
 
 M. 
 
 MAIL, fact of carrying, no excuse for excessive speed of steamer, i. 576. 
 MAILS, salvage on, ii. 303. 
 MAINE, lien of material man in, ii. 143, 144. 
 MANAGING OWNER, i. 109 - 114. See Pari-Oumer, VI. 
 MANSFIELD, LORD, created English commercial law, i. 15, 16. 
 MARINE HOSPITAL, funds, ii. 80. 
 
 MASSACHUSETTS, lien of material men in, ii. 145 - 148. 
 MASTER, DUTIES AND POWERS OF, ii. 3-31. 
 
 I. Foundation and Natuee of the Master's Authority, ii. 3 - 13. 
 his peculiarly responsible position, ii. 3. 
 reciprocal obligations of master and owner, ii. 3. 
 competency of, necessary to make ship seaworthy, ii. 3. 
 duty as to lading goods, ii. 3. 
 
 dunnage and stowage, ii. 3. 
 
 hull of ship, rigging, provisions and supplies, ii. 3. 
 ship's papers, ii. 3. 
 his own conduct, ii. 3. 
 when shipwrecked, in peril, arrested, or captured, ii. 4. 
 " last man to leave the ship," ii. 4. 
 
 custom and usage and the nature of duties best guide of requirements, ii. 4. 
 no power to contract with foreign government to convey away its banished 
 
 subjects, ii. 4. 
 privileges by usage, varied by bargain, ii. 4. 
 
 of carrying goods for himself and others, ii. 4. 
 certain tonnage, ii. 4. 
 primage and average, ii. 4, and n. 
 whether owners liable to, for all wages and privileges previously stipulated for 
 
 when they change the voyage, ii. 4, and n. 
 cannot sue in rem for wages, ii. 5. 
 
 but owners are liable for wages in case of capture or wreck, ii. 5. 
 trustees holding title liable for his wages, ii. 5. 
 receiving a certain sum as wages and a commission, not allowed to traflSc for 
 
 himself, ii. 5. 
 liable for passage-money of wife if taken to sea without permission, ii. 6. 
 not bound to pay freight for piano belonging to her if used by passengers, ii. 6. 
 not liable for expense of rating chronometer belonging to him if used by ship, ii. 6. 
 nor for use of staterooms otherwise empty, ii. 6.
 
 844 INDEX. : 
 
 MASTER, DUTIES AND POWERS OF — Continued. 
 nor for services of steward, ii. 6. 
 liable to owners for passenger money, ii. 6. 
 
 not for expenses of horse used on shore on ship's business, ii. 6. 
 nor for expenses of journey to take command of ship, ii. 7. 
 powers, better defined than duties, ii. 7. 
 
 agent for the owners, in all^atters fairly within the scope of his appointment, 
 ii. 7. 
 but no more authority to bind the owners than any agent to bind 
 
 principal, ii. 7, n. 2. 
 not the general agent, ii. 7, n. 2. 
 authority as agent, defined by law of agency, ii. 7. 
 his agency, founded on necessity, ceases when owner present, ii. 8. 
 not applicable to owner pro hac vice, in command, ii. 8, n. 
 may sell ship, when sufficient necessity, ii. 8. See also Sale of 
 
 Ship, III. 
 no such necessity when owner so near as to give instructions, ii. 8. 
 specially empowered to sell in a particular manner, ii. 8. 
 may do abroad what he cannot at home, ii. 8. 
 
 raise money on bottomry, charter ship, or repair, or supply her 
 
 extremity, ii. 8. 
 but not borrow money to pay for work already done, ii. 9, n. 
 party furnishing necessaries must prove him agent of the owner, 
 ii. 9, n. 
 vendee of ship not liable for money previously borrowed to furnish necessaries 
 
 of ship in foreign port, ii. 9, n. 3. 
 if part-owner, authority to settle claim for demurrage, ii. 9. 
 
 possibly so if not, ii. 9. 
 power, when not determined hj plade, ii. 9, 10. 
 when contracts by, in home port, bind owner, ii. 10, and n. 2. 
 contracts of affreightment, ii. 10, n. 2. 
 for repairs, ii. 10, n. 2. 
 what is home port, ii. 10, n. 2. 
 power of, to bind owners, must be by contracts relating to the condition, or 
 use and employment of ship, ii. 10. 
 to hire seamen, ii. 11. 
 
 whether this applies to fishing voyages, ii. 11, n. 
 abduction of minor by, owners bound for damages, ii. 11, n. 
 contract by, binding owner, construed at home by laws of place where made, 
 
 ii. 11. 
 powers of, as agent of owner, such as the laws of his own country give, ii. 11, 
 
 and n. 
 no power to settle claims not accruing while he is master, ii. 11. 
 contracts in his own name, liability of owner for, ii. 11. 
 in such case owner reached by lien on ship, ii. 12. 
 in most cases, when he makes contracts for the ship, is himself responsible, ii. 12. 
 
 as charter-party and bill of lading signed by him, ii. 1 2. 
 if goods injured on board, through want of skill or wrong-doing of crew, him- 
 self responsible, ii. 12. 
 or if stolen or lost, when, ii. 12.
 
 INDEX. 845 
 
 MASTER, DUTIES AND POWERS OF— Continued. 
 
 both owner and master carriers of cargo, ii. 12. 
 cannot make any contracts under seal, in foreign port, to bind owners, ii. 12. 
 may refuse passage, if common carrier of passengers, when, ii. 13. 
 as to agreement with owners concerning legal expenses, ii. 13. 
 IL Master's Power from Necessity, ii. 13 - 20. 
 necessity varies in different cases, ii. 13. 
 necessity, what it means, ii. 14. 
 necessity giving master power to sell, ii. 14. 
 must be stringent and positive, ii. 14. 
 
 giving him power to borrow money and hypothecate, ii. 14. 
 what its character, ii. 14. 
 
 giving him power to bind owners for repairs, ii. 14, and n. 
 repairs and supplies must be needful, and reasonable and proper, ii. 
 
 14, n. 
 must be apparent, for master to have credit to procure them, ii. 15, n. 
 difference between master's power to sell ship and cargo, and to deviate, 
 ii. 1.5. 
 
 or to make jettison, ii. 15. 
 or to cut away masts, ii. 15. 
 much here left to his discretion, ii. 15. 
 if acting honestly, justifiable, ii. 15. 
 necessity, the test, ii. 15, 16. 
 may borrow money to buy necessaries, ii. 16. 
 
 or to pay for those already bought, ii. 16. 
 authorizing master to appoint another in his place, ii. 18. 
 the term " what a prudent man would deem necessary, ii. 18, n. 
 such master may bind owner as original master could, ii. 18. 
 master appointed by charterer binds not only charterer, but ship, ii. 18. 
 charterer may lend money to, for necessities of ship, ii. 19, n. 
 bond given by, to them, enforced against ship, ii. 19, n. 
 appointed abroad by consul, same power, ii. 18, 19. 
 
 may give bottomry bond, ii. 19, n. 
 of steamboat or privateer, similar power, ii. 19. 
 owners of privateer liable for torts committed by, ii. 19, n. 3, 
 
 it seems also for his contracts, ii. 19, n. 3. 
 how contracts within scope of authority, may be ratified by owners, 
 
 ii. 19, and n. 
 cannot annul, or materially vary contract made by owners, ii. 19. 
 nor bind the owner by a contract neither necessary nor beneficial, ii. 19. 
 may bind ship, if a custom to carry certain passengers free, or seamen's 
 
 goods, ii. 20, n. 
 liability of master and owner controlled by rule, that a party giving 
 credit to one when he might to another, cannot afterward resort to 
 the other, ii. 20. 
 contract exclusively with, or exclusively with owner, ii. 20. 
 proof of exclusive credit given to either, ii. 20. 
 
 mere entry on books charging either, doubtful, ii. 20. 
 custom to charge vessel " and all concerned in her," ii. 20. 
 or ship " and owners," ii. 20.
 
 846 INDEX. 
 
 MASTER, DUTIES AND POWERS OF — Continued. 
 
 owner responsible as such, though name not on ship's papers or regis- 
 tered, ii. 20. 
 III. Power of the Master over the Cargo, ii. 20-23. 
 different relation of the master to ship and to cargo, ii. 20. 
 master bound to receive cargo, store it properly, care for it during voyage, 
 
 carry it directly, and deliver it safely, ii. 20. 
 may be consignee or supercargo, ii. 20. 
 unites, but does not combine, these several offices, ii. 20. 
 on the voyage regarded only in the character of master, ii. 20. 
 when ship and cargo reach their destination, in character of supercargo and 
 
 consignee, ii. 21. 
 functions may be contemporaneous, ii. 21. 
 at port of destination, when master and when consignee, ii. 21. 
 if he cannot sell cargo, may leave it with merchant, ii. 21, n. 
 when a common carrier and when factor, ii. 21, n. 
 for acts of, in selling, owner liable, and why, ii. 21, n. 
 owner liable for proceeds of sale, as well as for safe transportation, ii. 21, n. 
 receiving commission for sale of goods, how considered, ii. 21, n. 
 owner of ship then responsible for what, ii. 21, n. 
 power to sell when goods consigned to him not revoked by owner's selling 
 
 while vessel at sea, ii. 21, n. 
 if he takes goods on shore with intent to embezzle, barratry, ii. 21. 
 if he contracts with shipper so as to give a lien on ship he does it as master, 
 
 ii. 21. 
 while exercising his duty as, stranger to cargo, between lading and unlading, 
 
 ii. 21. 
 may become supercargo or consignee through necessity, ii. 22. 
 if cargo is perishable, must do all he can to preserve it, ii. 22. 
 as, to preserve hides by beating them, ii. 22. 
 if possible should unpack and dry wet goods, ii. 22. 
 
 for this purpose may open packages, ii. 22. 
 not bound to repair goods, ii. 22. 
 nor to delay voyage for sake of, ii. 22. 
 must use all his power in case of capture to procure restoration of cargo, 
 
 ii. 22. 
 sufficient if what he does is done in good faith, ii. 22, n. 8. 
 
 and is not bound to act fraudulently, ii. 22, n. 8. 
 in seizure of ship and cargo for breach of blockade, how far act of, in at- 
 tempting to enter, act of owner of cargo, ii. 22. 
 if vessel sails with full knowledge that port of destination is blockaded, ii. 22. 
 if blockade proclaimed after vessel sailed, ii. 22. 
 may sell cargo, when, ii. 23, 
 
 if voyage broken up, cannot sell at intermediate port, ii. 23, n. 
 sale, without necessity by, gives purchaser no right, ii. 23, n. 
 cannot sell to pay debt of owner, ii. 23, n. 
 
 when duty to transship and if goods perishable, i. 234, n. 2 and 3. 
 may sell part of cargo to finish voyage, ii. 23. 
 must first exhaust other means of raising money, ii. 23. 
 in such sale there must be actual and urgent necessity, ii. 23.
 
 INDEX. 847 
 
 MASTER, DUTIES AND POWERS OF — Coiitinued. 
 acts of, in such cases, when held valid, ii. 23. 
 not sufficient to act botid fide, if no necessity exists, ii. 23. 
 when justified as an act for the common benefit, ii. 23. 
 IV. The Lien of the Master, ii. 24-26. 
 
 master's lien on ship and freight, origin of, ii. 24. 
 extent of, ii. 24. 
 
 in England held none on ship, or freight, ii. 24, and n. 
 in America, he has lien on freight, but not on ship, for his wages 
 
 or disbursements, ii. 24, 25. 
 but if merely called a master, he has lien on both for wages, ii. 24. n. 
 on ship when he pays lien and is substituted for lien creditors, 
 
 ii. 25, n. 
 where he used his own money to repair her, in preference to borrow- 
 ing on bottomry, ii. 25, n. 
 if directly responsible for seamen's wages, ii. 25, n. 
 none for general account, ii. 25. 
 has on cargo, for his disbursements, if it belongs to owner of ship, 
 
 ii. 25. 
 if on freight, may detain goods against consignee or shipper, when, 
 
 ii. 25, 26. 
 right and duty of, to collect freight, ii. 26. 
 
 but may be deprived of by an assignment from owner, ii. 26. 
 when court will grant injunction to prevent collection, of, 
 ii. 26. 
 V. How FAR Owner is liable for the Torts of the Master, ii. 26 - 
 31. 
 generally for his misconduct, negligence, or unskilfulness, ii. 26, n. 4. 
 liability measured and existence determined, by law of agency, ii. 26. 
 for master's delay in presenting proper manifest, ii. 26. 
 but not for his tortious endeavors to prevent owner from obtaining his 
 
 goods, ii. 26. 
 vessel liable in rem for master's wrongfully putting passengers on short allow- 
 ance, ii. 26, n. 5. 
 if he neglect to collect freiglit-money for charterers of ship, ii. 27. 
 if collision caused by his want of skill, ii. 27. 
 but not for wilful collision, ii. 27, and n. See 29, and note. 
 for master's embezzlement of goods, ii. 27. 
 but not for gbods shipped by his own privilege, ii. 27. 
 
 shipped clandestinely, while owner is on board, ii. 28, and notes, 
 for master's tort in smuggling goods, ii. 28, n. 
 owners of privateer, liable for torts of officers and crew, ii. 28. 
 
 but not for their piratical acts, ii. 28, 29, and n. 
 rule making master responsible, ii. 29, and n. 2. 
 usage of port, or of trade important in making him liable, ii. 29. 
 liability dependent on maritime law, ii. 30. 
 
 may be increased by special contract, ii. 30. 
 distinction raised in recent cases, ii. 30. 
 
 for wilful wrong of servant, though done in opposition to owner's 
 commands, ii. 30. See 27, and n.
 
 848 INDEX. 
 
 MASTER, DUTIES AND POWERS OF — Continued. 
 
 as conductor detaining train in swamp over night, ii. 30, n. 2. 
 and engineer running train over forbidden track and causing collision, 
 ii. 30, n. 2. 
 
 maxim of respondeat superior, ii. 30, n. 2. 
 
 for master's misbehavior to, or ill-treatment of, passenger, ii. 30, n. 2. 
 
 for conversion of deceased passenger's money, ii. 30, n. 2. 
 
 for sailing away and leaving passengers, ii. 30, n. 2. 
 
 if damages paid, remedy against master, ii. 30. 
 VI. In othek Respects : 
 
 change of, indorsed on register, i. 35. 
 
 citizenship of, i. 40. 
 
 sale of ship by, i. 68 - 74. See Sale of Ship, IV. 
 
 who is also part-owner, power of other part-owners to dispossess of command 
 of ship, i. 95, 96, 97. 
 
 liability of, for torts of those under him, i. 106, 107. 
 
 power of ship's husband supersedes, i. Ill, n. 3. 
 
 authority of, as to supplies, repairs, and work, i. 91, n., 125, 173. 
 
 agent both of owner and shipper, in case voyage is broken up, i. 237. 
 
 negligence of, in regard to stowage of goods, i. 261, 262. 
 
 admissions of, as to collision, i. 537. 
 
 power of, to make charter-party or other instrument under seal, i. 276, and n. 
 
 accommodations of, on board vessel, i. 278, and n. 
 
 possession of ship, and ownership pro hac vice, by. See Charter-Party, II. 
 
 opinion of as to ship's capacity, i. 291. 
 
 lien of, for wages and disbursements, i. 305, 306. 
 
 duty of, as to consultation with crew, i. 409. 
 
 duty of, as to settlement of general average contributions, i. 473. 
 
 lien of, to enforce contribution in general average, i. 473. 
 
 compensation of, for extra labor, ii. 43, n. 
 
 power of, over crew, and agreements with them as to wages, etc. See Sea- 
 men, II. 
 
 duty and discretion of, as to provisions and allowance. See Seamen, IV. 
 
 duty of, as to sickness of seamen. See Seamen, VI. 
 
 as to return of seamen to this country. See Seamen, VIL 
 
 power of, as to punishment of seamen. See Seamen, VIII. 
 upon desertion. See Seamen, IX. 
 
 duties, powers, and liabilities of, when pilot is on board. See Pilots. 
 MATERIAL MEN AND THEIR LIENS, ii. 141-155. 
 
 who are, ii. 141. 
 
 as defined by Jacobsen, ii. 141. 
 
 Lord Stowell, ii. 141. 
 
 those who build, repair, or equip ships, or furnish them with tackle and neces- 
 sary provisions, ii. 141. 
 
 the question of lien considered, ii. 141 - 155. 
 
 (for lien of by maritime law, and enforcement of by State Statutes. See Re- 
 pairs and Supplies.) 
 
 in England held till 1840 to be limited to care of person, to whom possession 
 of ship was given for purposes of repair, ii. 141. 
 
 cannot claim expenses of keeping, ii. 141.
 
 INDEX. 849 
 
 MATERIAL MEN AND THEIR J.lE'i^iS — Continued. 
 
 but may claim damages for neglect to take ship away when repairs were com- 
 pleted, ii. 142. 
 common law lien in force in United States, ii. 142. 
 liens given by State statutes against vessels in home port, ii. 142. 
 statutes of the different States, ii. 142, n. 2. 
 similarity of provisions of, ii. 142". 
 lien of buildei- in New York attaches when, ii. 142. 
 statute does not apply to canal boats, ii. 142. 
 does to a steamboat fitted up as a theatre, ii. 142. 
 and vessel liable for supplies furnished the theatre, ii. 142. 
 debts for goods furnished not contracted till delivery, ii, 142. 
 agreement to deliver not sufficient, ii. 143. 
 lien lost if creditor suffers vessel to sail, ii. 143. 
 but not if upon a trial trip merely, ii. 143. 
 
 nor when she leaves State fraudulently, when not liable to arrest, 
 ii. 143. 
 lien for repairs on a boat running from New York to Albany under one gen- 
 eral order, ii. 143. 
 
 when every trip a departure within the statute, ii. 143. 
 same rule as to coal furnished at different times, under one agreement, 
 ii. 143, n. 4. 
 wood for fuel, in New York, not " supplies," ii. 143. 
 in Illinois otherwise, ii. 143. 
 in New York within term " stores," ii. 143. 
 lien in Maine, while building, and four days after launched, ii. 143. 
 
 lost, if materials sold on time, and time not elapsed before four days 
 expire, ii. 143, 144. 
 materials must be actually used in construction, ii. 144. 
 
 not sufficient that they were furnished under representations that they 
 
 were to be used, ii. 144. 
 lien attaches if materials furnished for one vessel, used in another, 
 
 ii. 144, n. 
 if some used, and others not, and judgment obtained for amount of 
 whole, ii. 144, n. 
 party furnishing materials must have reference to some particular vessel, 
 
 ii. 144, n. 
 if the particular vessel not begun to be built, ii. 144, n. 
 
 furnishing generally to ship-builder no lien on any particular vessel, ii. 144, n. 
 positive use of materials must be shown, ii. 144, n. 
 if only part, material men must show what part, ii. 144, n. 
 materials furnished for two vessels built for same person, no lien on one for 
 
 whole materials, ii. 144. 
 tools and other articles used by workmen not embraced in statute, ii. 144. 
 no lien for materials or labor furnished to construct moulds of ship, ii. 144, n. 
 nor for person procuring insurance on timber purchased for, and used in con- 
 struction of, ship, unless, ii. 144, and n. 
 party procuring insurance not a furnisher of materials under the statute, 
 
 ii. 144, n. 
 liens under the statute of Massachusetts, ii. 145-148. 
 VOL. II. 54
 
 850 INDEX. 
 
 MATERIAL MEN AND THEIR LIENS — Continued. "> " 
 
 cease at expiration of twenty days after departure, ii. 145. 
 
 and in all cases after vessel's arrival at a port out of Commonwealth, 
 
 ii. 145. 
 vessel sailing from Newburyport to Boston and obliged to put into 
 
 Portsmouth, N. H., lien lost, ii. 145. 
 by statute of 1855 given to persons for money due under any contracts 
 
 with owners, ii. 146. 
 " owners " means special, as well as general, ii. 146. 
 one repairing vessel under contract with special owner, ii. 146. 
 for repairs done on vessel when in temporary possession of vendee and 
 
 which reverted for breach of contract, ii. 146, n. 
 trench made in front of launching ways to deepen water not a part of 
 
 them, ii. 146. 
 mode of enforcing ; time of filing petition ; proper mode of serving 
 petition, ii. 147, and n. 
 under statute of Pennsylvania continues till vessel goes to sea, ii. 148. 
 even if owner becomes bankrupt before departure, ii. 148. 
 ship chandler's lien for what, ii. 148. 
 lien for arms where enforced, ii. 148, n. 
 when a barge hired for a steamboat is a material furnished, ii. 148. 
 money loaned to build a ship, when gives lien, ii. 148. 
 if to pay wages, not, ii. 148, n. 
 or for use of the boat generally, ii. 148, n. 
 in Illinois, if statute applies, lender must show that necessity existed, ii. 148, n. 
 in Maine paying claim of one who has lien gives no right to enforce it, 
 ii. 148, 149, n. 
 
 nor indorsing note and paying it at maturity, ii. 149, n. 
 goods furnished master to supply lost goods, not "supplies," ii. 149, n. 
 lien for money loaned to enable a person to purchase a vessel, ii. 149, n. 
 lien for goods furnished a master to enable him to purchase wood and other 
 
 necessaries, ii. 149, n. 
 under statute of Ohio, whether lien by builder after delivery, ii. 149. 
 in Michigan none for supplies furnished while vessel building, ii. 149. 
 in Missouri when supplies considered ordered by master, ii. 149. 
 statute liens take precedence of all other claims, ii. 149. 
 
 lien of material men preferred to claim of one lending money to build 
 
 the ship, ii. 149, n. 
 lien of material men enforceable though vessel ordered by court to be 
 
 sold to satisfy a mortgage, ii. 150, n. 
 vessel may be proceeded against, though in the hands of a bond Jide 
 
 purchaser, ii. 151, n. 
 given by maritime law, a permanent and abiding lien, ii. 151, n. 
 but against a bond Jide purchaser without notice must be enforced 
 
 within a reasonable time, ii. 151, n. 
 what will constitute a reasonable time, ii. 151, n. 
 lost by delay, difficulty of reconciling the cases, ii. 151, n. 
 creditor advancing money to a builder on mortgage succeeds to place of 
 
 owner, ii. 151, n. 
 none for laborer employed for general work, or mechanic, ii. 149, 150.
 
 INDEX. 851 
 
 MATERIAL MEN AND THEIR LIENS — Continued. 
 
 whether sub-contractors and day-laborers have, ii. 150, n. 
 
 in Maine person performing labor on a vessel has, ii. 150, n. 
 sub-contractors furnishing supplies doubtful, ii. 150, n. 
 cannot sue and attach the ship, but should sue contractors, ii. 150, n. 
 action against contractor and owner as trustee, ii. 150, n. 
 by Massachusetts statute of 1 855, sub-contractors and day-laborers have 
 lien, ii. 150, n. 
 
 formerly otherwise, ii. 150, n. 
 
 lien of party furnishing supplies to builder of ship in ignorance 
 of her ownership, ii. 150, n. 
 such lien exists in Ohio, ii. 150, 151, n. 
 so in Ktentucky unless owner has paid the person who employed the 
 
 sub-contractors, ii. 151, and n. 
 but none in New York, Pennsylvania, or Indiana, ii. 151, n. 
 in Missouri when ship-carpenter cannot create lien, ii. 151, n. 
 created by maritime law or statute, whether enforcible against government ship 
 
 as well as private, ii. 151, and n. 
 vessel may be proceeded against though in hands ofbondjide holder, ii, 151. 
 if due diligence is used, ii. 151, 152. 
 
 held not maintainable after lapse of two years, ii. 151, n. 5. 
 to avoid, must be unreasonable neglect, ii. 151, n. 5. 
 burden of proof on claimant to show laches, ii. 152. 
 lien when waived by giving credit on other stipulations, ii. 152. 
 
 if duration of lien is fixed by law, and credit extends beyond time, 
 
 ii. 152, and n. 
 if credit expire before, question of intention, ii. 152, n. 
 credit given for definite time, lien suspended for the time, ii. 152, and n. 
 charging materials to the owner before vessel named or completed, 
 
 ii. 152. 
 the giving of a note as waiver, ii. 152, n. 
 claim will be enforced if note is surrendered at trial, ii. 153. 
 plaintiff" may discontinue in State court, and bring action in rem in ad- 
 miralty, ii. 153, and n. 
 payment of money without appropriation, if there are two debts, goes 
 
 to extinguish lien, ii. 153, and n. 
 if credit is given to builder or owner, no lien on vessel, ii. 153, and n. 
 how far remedy in rem can be enforced in State courts, ii. 154, 155. 
 held that there is no concurrent jurisdiction, ii. 154. 
 State courts may exercise, as to supplies, where jurisdiction is given by 
 State statute, ii. 155, and notes. 
 MEDICINE CHEST, ii. 80, n. 
 MERGER, of other debts by bottomry bond. i. 147. 
 MESNE PROCESS, IN ADMIRALTY, ii. 388-395. 
 I. Arrest op Defendant, ii. 388 - 390. 
 limited by rules of court, ii. 388. 
 
 imprisonment for debt abolished, where abolished by State laws, ii. 388, 389. 
 if sum exceeds five hundred dollars, no warrant of arrest of person or prop- 
 erty can issue, ii. 390. 
 unless by special order of court, ii. 390. 
 upon affidavit, or proof of propriety thereof, ii. 390.
 
 852 INDEX. 
 
 MESNE PROCESS IN ADMIRALTY, — Continued. 
 
 II. Attachment of Goods, if Party cannot be found, ii. 390- 392. 
 
 goods may be attached, if defendant may not legally be arrested, ii. 390. 
 power of court to grant, if party is without jurisdiction, ii. 390. 
 a person may be sued where his property is found, ii. 391, 392. 
 
 III. Foreign Attachment, ii. 392 - 394. 
 governed in admiralty by its own principles, ii. 392. 
 and independent of local laws, ii. 392. 
 
 whether it can issue, if defendant is not inhabitant of district, ii. 392. 
 suit may be brought in district where property is, ii. 392. 
 garnishee to answer on oath, ii. 392. 
 
 as to debts and effects of defendant in his hands, ii. 392. 
 
 and to interrogatories propounded, ii. 392. 
 
 and in neglect thereof, court will award compulsory process, ii. 393. 
 
 warrant of arrest, to contain citation to, ii. 393. 
 
 not sufficient to serve copy of jDrocess upon, with foreign attachment 
 clause, without citation, ii. 393. 
 
 to be named, in warrant of arrest, ii. 394. 
 
 general order, insufficient, ii. 394. 
 
 interrogatories to, may be filed, with libel, or after, ii. 394. 
 
 IV. Monition in Suits in personam, ii. 394, 395. 
 by service on respondent, ii. 394. 
 
 residence does not give jurisdiction, ii. 394. 
 
 either person or property must be found within district, ii. 394. 
 
 if person, arrest or monition, ii. 394. 
 
 if property alone, attachment, ii. 394. 
 
 no attachment and monition, except in suits in rem, ii. 394. 
 
 " citatio publica," or " viis et modis," ii. 395. 
 V. Monition in Suits in rem, ii. 396 -398. 
 
 usually by warrant of arrest, ii. 396. 
 
 marshall takes property into custody, ii. 396, 397. 
 
 and gives public notice thereof, ii. 396. 
 
 also of time for return of process, and hearing of cause, ii. 396. 
 
 to be published in newspapers ordered by court, ii. 396. 
 
 if property is in hands of State sheriff', marshal cannot take it, ii. 199, 397, and n. 
 
 court may order any one in whose hands the property may be to appear, ii. 
 397, 398. 
 VI. Monition in rem and in personam, ii. 399. 
 
 each of processes given by second rule separate, ii. 399. 
 
 but may be combined, ii. 399. 
 
 sometimes all contained in one monition, ii. 399. 
 
 but these governed by rules of court, ii. 399. 
 MICHIGAN, statute of, allowing actions against vessels by name, i. 121, n. See Part- 
 Owners, VII. 
 
 no lien for materials, when, ii. 149. 
 MINORS. See Infant. 
 
 abduction of, ii. 348, 349. 
 
 suit by, ii. 371. 
 MISSOURI, statute of, allowing actions against vessels by name, i. 121, n. See Part- 
 Owners, VII.
 
 INDEX. 
 
 853 
 
 MONEY, market value of, to be paid if lost, i. 272. 
 MORTGAGE. See Sale of Ship. 
 
 rights and liabilities of parties under. See Otvners. 
 
 how analogous to hypothecation by bottomry, i. 132. 
 
 how distinguished from pledge, i. 132. 
 
 admiralty will not enforce sale under, ii. 189. 
 
 nor decree possession, ii. 189. 
 
 recording of, i. 60. 
 MORTGAGEE, may take out register, i. 44. 
 
 conflicting claims of, and creditors, under Ohio statute allowing suit against 
 vessel by name, i. 120. 
 
 when responsible as owner. See Owners. 
 
 for contracts or torts of mortgagor. See Owners. 
 MORTGAGOR, liabilities of, as owner. See Owner. 
 MUSICIANS, cannot sue in admiralty for wages, ii. 184. 
 MUTINY, when ship is unseaworthy, ii. 79. 
 
 N. 
 
 NAME, of vessel, how to be painted, i. 34. 
 
 change of, i. 38. 
 NATIONAL CHARACTER, provisions and stipulations as to in charter-party, i. 284. 
 
 effect if erroneous or fraudulent, i. 284, and n. 
 NATURE OF GOODS, must be stated in bill of lading, ii. 123. 
 NAVIGATION LAWS. See Registnj and Navigation Laws. 
 NECESSITY, justifying sale by master, i. 68 - 74. See Sale of Ship, IV. 
 
 justifying bottomry or respondentia. See Bottomry, Hypothecation by. 
 
 justifying sacrifice, which entitles to contribution in general average, i. 409 -413. 
 See General Average, X. 
 
 master's power arising from, ii. 13-20, see Master ; Bottomry, Hypothecation 
 by, i. 132-138, 140-747. 
 NEGLIGENCE. See Collision. 
 
 liability of part-owners to each other for, i. 107. 
 
 of carrier, i. 257, n. 2. 
 NEGOTIABILITY, of bill of lading, i. 192, 193, 196, n., 504. See Carriage of 
 Goods, III. 
 
 of dock warrants, i. 489, n. 
 
 of bottomry bonds, i. 168. 
 NEGOTIABLE PAPER. See Bills of Exchange and Promissory Notes. 
 NEW REGISTRY, act of 1797 respecting, i. 29. 
 
 no vessel entitled to, if captured and condemned in due form in time of war, 
 i. 29. 
 
 unless retaken by owner, i. 29. 
 
 or he obtains title again by purchase or otherwise, i. 29. 
 NEWSPAPERS, notice by marshal of attachment of goods in, ii. 396. 
 NEW YORK, lien of material men in, ii. 142, 143. 
 NOMINAL DAMAGES, in admiralty, ii. 483. 
 NOTICE, should be given by purchaser of ship at sea, to master, i. 83. 
 
 of sale, actual and implied by registry, See Registry and Navigation Laws. 
 
 between part-owners, i. 122, n.
 
 854 INDEX. 
 
 NOTICE — Continued. 
 
 by ship-owner, or master, to consignee, of arrival of goods, i. 222 - 224. 
 
 by consignor, sufficient to stop goods in transitu, i. 520 - 524. See Stoppage in 
 Transitu, VI. 
 NOTORIETY, as evidence of ownership, i. 47. 
 
 O. 
 
 OATH, necessary to registration or enrolment, i. 34, 41. 
 false, forfeiture for, i. 39. 
 
 taken innocently, i. 39. 
 of master only, enrolment upon, i. 34, 41. 
 of ownership, applies to legal, i. 34, 44. 
 OHIO, statute of allowing actions against vessels by name, i. 121, n., 122, n. See Part- 
 Owners, VII. 
 
 lien of material men in, ii. 149. 
 OLERON, laws of, i. 6, 9, 10. 
 ORAL SALE. See Sale of Skip. 
 OUTFIT, duties of ship's husband, as to, i. 109. 
 OWNERS : 
 
 I. Liabilities OF, i. 125-131. See Part- Owners, III., IV., V. 
 for act of, or expenses incurred by, master. See Master. 
 when liable for supplies, repairs, and work, i. 125. 
 
 put in against their will, i. 128. 
 master's authority as to supplies, repairs, and work, i. 99, n. 1. 
 liability of owner pro hac vice, i. 125. 
 
 when charterer so considered, i. 125. See also Charter- Party. 
 usual principle for determining liability, i. 125, and n. 2. 
 when charterer is an infant, i. 125, 126. 
 owner of chartered vessel not liable for wharfage, i. 126. 
 when mortgagee responsible as, i. 126 - 131. 
 mortgagee out of possession, whether liable, i. 127 - 131. 
 should take possession when, i. 82, and n., 126. 
 failing to do so, liable for what, i. 82, and n., 126. 
 actual, or apparently actual, possession, i. 126. 
 whether out of possession, or mortgagor in, liable, i. 127. 
 if chooses not to take possession, what risk he runs, i. 127. 
 when protected as if he had possession, what the liability, i. 127. 
 liability of, for contracts or torts of mortgagor who is also 
 
 master, i. 129, n. 
 whether liable, depends upon three things, namely, giving of 
 
 credit; authorizing credit; reception of benefit, i. 127. 
 general principles sustaining these distinctions, i. 127, 128. 
 if owner retains an unauthorized benefit to his ship, which he cannot re- 
 move without injury to the ship, i. 128. 
 if party furnishes supplies, in ignorance of title of party sought to be 
 
 charged, i. 128. 
 repairs against the will of owner or mortgagee in possession, i. 99 ; 127, 
 
 n. 2. See Part-Owners, III. 
 mortgagee out of possession^ not entitled to freight, i. 129, n.
 
 INDEX. 865 
 
 OWNERS— Continued. 
 
 parties may make any bargain, as to whom supplies, etc., shall be 
 credited, i. 130. 
 
 bargain, how proved or inferred, i. 131. 
 lien of material men, i. 131. See Material Men. 
 
 person registered as owner, not liable if bill of sale was intended as col- 
 lateral security, i. 131. 
 11. Use of the Ship bt. See Carriage of Goods ; Collision. 
 III. In other Respects : 
 
 bottomry bond made by. See Bottomry, Hypothecation by. 
 
 rights, duties, and liabilities of, upon charter. See Charter-Party. 
 
 liability of, for money borrowed to meet necessity caused by fault of master, 
 
 i. 135, n. 2. 
 if voyage broken up by, effect upon bottomry bond, i. 137, 138. 
 destruction of vessel by, renders them personally liable upon bottomry bond, 
 
 i. 151. 
 liability of, for repairs on bottomry bond, i. 167, n. 
 duty of, to keep in repair, i. 309. 
 
 duty of charterer to repair at owners* expense, i. 309, n. 
 how far liable for acts occurring when pilot is on board. See Pilots, I. 
 how far liable for torts of pilots. See Pilots, II. 
 liability of, to shippers and others for loss by reason of neglect or refusal to 
 
 take pilot, ii. 118. 
 managing, i. 109-114. See Part-Owners, VI. 
 See New Registry. 
 
 PACKETS, when common carriers, i. 246. 
 PARTIAL LOSS. See General Average. 
 PARTICULAR AVERAGE. See General Average. 
 
 PARTNERS, distinct sales of ship by different partners, which is eflfectual, i. 85, 
 n. 1. 
 as distinguished from part-owners. See Part-Owners. 
 PART-OWNERS, i. 90-124. See Owners. 
 
 I. How Partnership in Vessels is created, i. 90-93. 
 by building or purchasing, i. 90. 
 tenants in common, not joint tenants, i. 90, 91, 92, and n. 2. 
 
 remark in Abbott controverted, i. 90, n. 
 equal shares presumed, i. 90. 
 
 share of each to be inserted in register or enrolment, i. 90, n. 2. • 
 ship held in partnership, powers and duties of owners, i. 91. 
 partner may sell or mortgage entire interest of firm in the vessel, i. 91. 
 immaterial whether copartnership or individual name is used, i. 91. 
 and conveyance need not be under seal, i. 91. 
 
 quasi partnership for a voyage or adventure, i. 91, 97, n., 98, n. 114. 
 every such partner has lien, i. 91. 
 liable as partner, i. 91. 
 
 whether such partner may dispose of whole, i. 91, 92. 
 part-owner cannot, i. 92.
 
 856 INDEX. 
 
 PART-OWNERS —Continued. ' 
 
 whether all must be parties to bill filed on account of profits, i. 92. See 
 
 117. 
 distinction between partner and part-owner, i. 92, 97, n. 2, 98. 
 transfer by partner of his interest, i. 92. 
 transfer by part-owner of his interest, i. 92. 
 share owners of vessel tenants in common as to ownership, i. 93. 
 and partners as to earnings, i. 93. 
 part-ownership presumed until partnership proved, i. 94. 
 
 II. Powers of Part-Owner, i. 93. 
 general rules of co-tenancy apply, i. 93. 
 
 sale by one, of share of others, void unless authorized or ratified, i. 93. 
 
 the other may maintain trover for conversion, i. 93, n. 2. 
 but not for dispossession, i. 93. 
 
 the action of case between, i. 93, n. 6. 
 
 replevin does not lie between, i. 93, 94. 
 
 whether trespass will lie, i. 94. 
 
 if the vessel be lost or injured b}' the negligence or malfeasance of one part- 
 owner in sending ship to sea, whether another can recover damages, i. 94, 
 n. 3. 
 
 power of majority of, to control and employ ship, i. 9.5. 
 
 whether may dispossess master who is part owner, i. 95 - 97 ; ii. 245. 
 
 implied authority of part-owner in absence of the others, i. 97. 
 as to repairs, i. 97, n. 2. See also Owners. 
 
 distinction between authority of ship's husband, and ordinary part-owner, L 
 97, n. 2, 99, n. 
 
 part-owner cannot bind other owners by accepting in their names negotiable 
 bill of exchange, though drawn in payment of supplies, i. 99. 
 
 dissent of part-owner to voyage, exempts him from his share of loss, i. 99. 
 
 liability of part-owner who prevents voyage, i. 100. 
 
 III. Liability of Part-Owners for Repairs ok Supplies, i. 100-105. 
 liable in solido, i. 100. See also Owners. 
 
 owners not liable after they have sold vessel, i. 101. 
 though person furnishing supplies did not know of sale, i. 101. 
 but repairs and supplies must be reasonable, and necessary i. 100, 
 repairs at home port, i. 101. 
 
 made against part-owner's prohibitions, i. 101. See also 128. 
 part-owner bound for the whole, although he has paid his share, i. 101, 
 
 102. 
 and though this payment made upon express release, i. 102. 
 but if he paid before due, or received release under seal, otherwise, i. 102. 
 credit given one or more part-owners, i. 102, 127. 
 credit or charge to " ship and owners," i. 103, and n. 3. 
 the recently settled English law on this point, i. 103, n. 3. 
 charge made to one part-owner, presumption of individual credit, i. 104. 
 rebutted by showing others not known, i. 104, and n. 1. 
 
 if negotiable paper of one, given in payment, be dishonored, others liable, i. 104. 
 negotiable paper absolute payment in Maine and Massachusetts courts of law, 
 
 i. 104. 
 but not in admiralty courts, i. 105.
 
 INDEX. 857 
 
 PAET-OWNERS —Continued. 
 
 liability of insurers after accepting abandonment, i. 105. 
 proportionally ; not in solido, i. 105. 
 
 IV. Liability of Part-Owners for the Torts of their Employees, i. 
 
 106. 
 governed by law of agency, i. 106. 
 when tortious act is that of owner and when of master, i. 106, 107. 
 
 V. Liability of Part-Owners to each Other, i. 107, 108. 
 whether liable for loss occasioned by negligence, i. 107. 
 liable for loss occasioned by destruction of property, i. 107. 
 insolvency of one part-owner, rights of the others, i. 107. 
 
 lien of part-owner on share of insolvent for his indebtedness, i. 107. 
 distinction between lien of part-owners and partners, i. 107, 108, n. 
 partnership may exist in cargo and voyage, but part-ownership in vessel, i. 
 91, 108, n., 109, n. 
 
 VI. The Ship's Husband, i. 109-114. 
 general agent, i. 109. 
 
 how appointed, i. 109. 
 
 distinction between, and ordinary part-owner, i. 97, n. 2, 99, n. 
 
 duties of, i. 109. 
 
 as to outfit and seaworthiness, i. 109. 
 ship in port, i. 109. 
 ship's papers, i. 109. 
 fi-eight and returns, i. 109. 
 entitled to commission, i. 110. 
 
 and may charge interest on excess of disbursements over receipts, i. 110. 
 cannot borrow money, i. 1 10, n. 3. 
 
 nor surrender lien for freight, i. 110, 111, n. 3. 
 
 nor insure, i. 110, 111, n. 2 and 3. 
 
 nor purchase cargo, i. 110. 
 
 nor delegate his authority, i. 111. 
 power of, supersedes that of master, i. Ill, n. 3. 
 whether can prosecute action at law, i. 111. 
 if authority general, may bind owners by his promise to pay seamen, 
 
 i. 111. 
 whether managing director or owner largely interested, can become, i. 110, n. 
 has no lien for advances on share, of other part-owners, i. 112. 
 acting within scope of authority binds other owners, i. 112. 
 creditor giving credit to ship's husband alone, i. 112. 
 liability of owners, to, for his charges, i. 112. 
 
 if some are insolvent, i. 112. 
 lien, and rights of, i. 113, 114. 
 VII. Liens of Part-Owners, i. Ill, 114. 
 
 general principle on which law of lien rests, i. 114. 
 
 part-owners, as such, have no lien, i. 114. 
 
 only as copartners, or agents, i. 91, 107, and n., 108, n., 115. 
 
 exceptions to this rule, i. 115, n. 
 lien on proceeds of voyage, by the general principles of agency, i. 115, 
 VIII. Suits by and against Part-Owners, i. 116-124. 
 
 admissions and acknowledgments of one do not bind the others, i. 116.
 
 858 INDEX. 
 
 PART-OWNERS —Continued. 
 
 bill in equity between, for adjustment of accounts, i. 116. See 91. 
 joinder of, in actions for tort, i. 116. 
 in actions on contract, i. 117. 
 non-joinder and misjoinder, how taken advantage of, i. 118, 119. 
 actions between, for contribution, i. 119. 
 actions against vessels by name, i. 119, 120. 
 
 in what States may be brought, i. 119, 120. 
 in Arkansas : how party should declare, i. 119, n. 
 Ohio : statute constitutional, i. 120, n. 
 
 establishes no lien prior to seizure, i. 120, n. 
 conflicting claims of mortgagee and creditors, i. 120, n. 
 in what cases action will lie against vessel, i. 120, n., 121, n. 
 Michigan : no lien till attachment, i. 121, n. 
 
 how should declare, i. 121, n. 
 Indiana : title transferred, by sale, under one of several liens, 
 
 i. 121, n. 
 Illinois : appeal from judgment of justice of peace, i. 121, n. 
 proceedings in rem for wages, i. 121, n. 
 when lien attaches, i. 121, n. 
 when to be enforced, i. 121, n. 
 
 sale under judgment, how affecting superior or antecedent liens, 
 i. 122, n. 
 Missouri : expiration of lien, i. 122, n. 
 
 process not to issue till bond filed, i. 122, n. 
 dissolution of the attachment, i. 122, n. 
 continuance of lien, i. 122, n. 
 what service and return sufficient, i. 122, n. 
 justice's execution insufficient to warrant sale, i. 122, n. 
 appeal from justice, i. 122, n. 
 
 one part-owner may sue in name of boat, on notice, i. 122, n. 
 part-owner has no lien for services, i. 122, n. 
 notice between part-owners, i. 122, n. 
 action of trespass in, i. 122, n. 
 interpleader, under the statute, i. 122, n. 
 for what services action may be sustained, i. 122, n. 
 contracts of affreightment, i. 122, 123, n. 
 
 when boat liable, if contracting party in possession is a tres- 
 passer, i. 123, n. 
 four classes of preferred claims, i. 123, n. 
 effect of judicial sale to divest other liens, i. 123, n. 
 effect of sale under law of another State, i. 123, n. 
 affidavit of complaint, what sufficient, i. 123, n. 
 demand filed must show lien, i. 123, n. 
 bond in discharge of lien, i. 123, n. 
 proceedings, if no bond is given, i. 123, n. 
 whether such action will be sustained, if the cause of action arose in another 
 
 State, i. 119, 120, and n. 
 rights of State courts to exercise jurisdiction, i. 121 -124. 
 frauds of part-owners against each other, i. 124.
 
 INDEX. 859 
 
 PART-OWNERS —Continued. 
 IX. In other Respects : 
 citizenship of, i. 28, 29, 39. 
 
 presence of, effect upon master's powers to make bottomry bond, i. 146. 
 PASSENGERS, i. 609-647. 
 
 baggage and provisions of, do not contribute to general average, i. 455. 
 I. Common Carriers and Private Carriers, i. 609, 610. 
 important distinction acknowledged between, i. 609. 
 uncertainty in definitions of, i. 609. 
 
 common carriers on water, vessels plying between definite termini having reg- 
 ular routes, i. 609. 
 
 unimportance of distinction between as to carriage of goods, i. 609. 
 bill of lading determines rights and obligations of, i. 610. 
 common carriers of passengers, regular packets, i. 610. 
 when carried in other vessels, usually under express contracts, i. 610. 
 no difference in England whether vessel sails to port within or without the 
 realm, i. 610. 
 II. Obligations of Carriers by Water as to, i. 611-636. 
 bound to receive and carry all who offer, i. 611. 
 unless special cause for refusal exists, i. 612. 
 this declared distinctly, and by implication, i. 612, 613. 
 exceptions held good in regard to land carriers equally so in regard to water 
 
 carriers, i. 614. 
 water carrier has no right to overcrowd vessel, i. 615. 
 
 and passenger already on board may maintain action for damages sus- 
 tained thereby, i. 615, and n. 
 may refuse to carry person seeking passage, having in view detriment to car- 
 rier's business, i. 615, 616, and notes. 
 
 or having contagious disease, i. 617, 618. 
 or intoxicated, i. 618, 
 or of disreputable appearance, i. 618. 
 but if received on board, cannot be expelled unless guilty of impropriety, i. 618. 
 
 nor be treated with insult, i. 618. 
 intoxicated person may be expelled when it is reasonably certain that he will 
 
 annoy other passengers, i. 619-621, and notes, 
 must carry passengers to end of route, i. 622. 
 may limit liability for loss by reasonable regulations, i. 622. 
 
 which must be brought to knowledge of passenger before purchasing 
 
 ticket, i. 622. 
 held more stringently in case of injury to person than to baggage, L 
 622, 623. 
 bound by public notice given as to hour of starting and course to be pursued, 
 
 i. 623. 
 responsibility ceases at termination of voyage, i. 624. 
 obliged to furnish comfortable accommodations, i. 624, 625. 
 and sufficient and wholesome food, i. 625. 
 usage determines, i. 625. 
 reasonable care, onlj', required, i. 625. 
 
 if express contract is made, this determines rights and liabilities of parties, 
 i. 626.
 
 860 INDEX. 
 
 PASSENGERS— Continued. 
 
 if embarking on vessel not a common carrier without express contract, liabili- 
 ties of parties rest on implied contract, i. 626. 
 
 ship must convey, and passenger must pay for conveyance, i. 626. 
 in other respects usage and justice to determine, i. 626. 
 usage will not defeat or control express contract, i. 627. 
 but may explain it, if doubtful, i. 627. 
 instrument will be construed so as to give effect to meaning and intention of 
 
 parties, i. 627. 
 if passage money is paid in advance, and voyage is not begun, or begun and 
 not completed, i. 628. 
 
 each case to be determined on especial facts, i. 628. 
 usage admissible to ascertain rights of parties, i. 628. 
 principles as to freight pro rata admissible to determine passage money due 
 
 pro rata itineris peracti, i. 629, 630. 
 obligation of carrier contracting to convey in particular vessel when vessel is 
 wrecked before voyage begins, i. 632 - 634. 
 decisions not reconcilable, i. 632. 
 rests on either of two principles, i. 632. 
 
 first, that contract is discharged by impossibility of execution, i. 632. 
 and obligation mutually ceases, i. 632. 
 
 second, that contract was made to carry and destruction of ship mere in- 
 cident thereto, i. 633. 
 
 and carrier obliged to convey in another vessel, i. 633. 
 this an application of the doctrine of transshipment of freight, i. 633. 
 ■ rules as to baggage apply equally to carriers by land and by water, i. 634 - 636. 
 delivery of to vessel, i. 184, 635. 
 owner may contract so as not to be liable for, unless bill of lading is given, 
 
 i. 635. 
 but compensation for passage generally includes carriage of, i. 635. 
 if baggage of steerage passenger is in his exclusive possession, owner of ship 
 
 not liable for theft of, i. 635, and n. 4. 
 otherwise if trunk is stolen from state-room, i. 635, n. 5. 
 on arrival, passenger should obtain, as soon as possible, i, 635. 
 
 but not obliged to endanger safety in so doing, i. 635. 
 generally includes only articles of personal nature necessary to convenience of 
 
 passenger, i. 635. 
 does not include merchandise, i. 635. 
 
 nor jewelry intended for presents to friends, i. 635. 
 nor masonic regalia, i. 636, n. . 
 
 nor engravings, i. 636, n. 
 money intended for travelling expenses may be carried in trunk, i. 636. 
 circumstances of life and peculiarity of travel to be considered, i. 636. 
 if passenger does not accompany, vessel only liable as in case of ordinary ship- 
 ment, i. 636. 
 III. Power and Duty of Master as to, i. 636 - 640. See Master, Power and 
 Duties of. 
 not so great over passengers as over crew, i. 636. 
 
 and cannot ordinarily require passenger to do duty as one of crew, i. 637. 
 otherwise in time of peril, i. 637.
 
 INDEX. 861 
 
 PASSENGERS — Continued. 
 
 as to pump ship, if leaking, i. 637. 
 
 or to repel attack of enemy, i. 637. 
 
 cannot require more exertion or exposure than is actually necessary, i. 637. 
 
 or anything unsafe for landsmen, though safe for practised seamen, i. 638. 
 
 compensation of, for services. See Salvage, 
 
 passenger entitled to respectful and kindly treatment, i. 638, 639. 
 
 and as respects females goes further, i. 639. 
 
 passenger must not aim to weaken due authority of master, i. 639, 640. 
 
 or interfere with management of vessel, i. 640. 
 
 or expose any person on board to annoyance or inconvenience, i. 640. 
 
 if he does, master may coerce him, i. 640. 
 
 but must be guided by necessities of case, i. 640, and note. 
 
 IV. Of the Obligation of the Ship-owner, i. 641, 642. 
 
 liable for breach of implied warranties as to seaworthiness of vessel, i. 641. 
 includes necessary food and articles of accommodation, i. 641. 
 and for want of advantages offered by public advertisement, i. 641. 
 
 as services of surgeon, i. 641. 
 whether liable for himself only, or for others on the ground of quasi partner- 
 ship, i. 641, 642. 
 
 V. Of the Rights of, to Compensation for Damages, i. 643 - 645. 
 
 passage-money consideration of contract, i. 643. 
 
 to be paid in usual way and at usual time, i. 643, 644. 
 
 or passenger must pay it on proper demand, i. 644. 
 if carried in consideration of indirect advantage to carrier, this a binding con- 
 tract, i. 644. 
 if carried gratuitously, carrier only liable for wrong done, i. 644. 
 parties may contract, so as to relieve carrier from liability for fraud or igno- 
 rance of his servants, i. 644, n. 2. 
 and authority for saying they may contract so as to relieve him from any 
 
 liability under any circumstances, i. 644, n. 3. 
 rules applicable to carriers on land apply to carriers by water, i. 644, 645. 
 VL Of Statutes Relating to, i. 645 - 647. 
 carriage of, regulated by statute, i. 645. 
 
 both in England and America, i. 645. See Appendix. 
 whether State statutes relating to passengers by water from foreign countries 
 conflict with constitutional powers of Congress, i. 645 - 647, and notes, 
 tax on alien passengers held unconstitutional, i. 646. 
 PENAL SUM, in a charter-party, not a limit of liability, i. 327. 
 PENALTY, not enforced against seamen, ii. 39, n. 3. 
 PENNSYLVANIA, lien of material men in, ii. 148. 
 PERILS OF THE SEA. See Carriage of Goods, VIIL 
 PERSONAL PROPERTY, law of, how related to law of shipping, i. 25. 
 
 rules regulating sale of, how applicable to sale of ship, i. 86 - 89. See Sale 
 of Ship, VIII. 
 PHYSICIAN, whether he may sue in admiralty for wages, ii. 182, 183. 
 PILOTS, ii. 106-119. 
 
 I. Who Pilots are, and what their Duties are, ii. 106-114. 
 pilot boats bound to what rules of navigation, i. 573. 
 formerly two meanings, — sea pilot and coast pilot, ii. 106.
 
 862 INDEX. 
 
 PILOTS —Continued. 
 
 pilot for many purposes a mariner, ii. 106. 
 
 has peculiar duties, ii. 106. 
 
 office of, regulated by law, ii. 106. 
 
 States ordered by Congress to make their own laws as to, ii. 106. 
 
 vessel going into or out of any water bounding two States may employ pilot 
 
 of either, ii. 106, n. 3. 
 questions arising under, cognizable in State Courts, ii. 106. 
 United Suites courts have concurrent jurisdiction, ii. 106, n., 107, n. 
 State laws entitled to liberal construction, and why, ii. 107, n. 
 constitutional, ii. 107, and n. 
 differ somewhat, ii. 107, and n. 
 to act as, must be commissioned, ii. 108. 
 
 unauthorized person may guide vessel, but can recover no compensation al- 
 lowed by law, ii. 108. 
 
 nor any compensation, if he falsely pretended to have a commission, ii. 
 
 108. 
 and is liable civilly in damages, and criminally for any losses or inju- 
 ries resulting, ii. 108. 
 pilot should have evidence with him of his authority, and why, ii. 108. 
 difficulty of piloting increases with draught of water, ii. 108. 
 oldest and most experienced, only allowed to pilot largest ships, ii. 108. 
 no vessel bound to take one on board, ii. 108. 
 if one offers, and is ready, vessel must pay pilotage fees, ii. 108. 
 right to, not lost by repeal of pilotage act, after right has accrued, ii. 108. 
 cannot proceed in rem, ii. 109. 
 unless State law gives a lien, ii. 109. 
 but if he offers and is refused, cannot maintain a claim for work and labor 
 
 done, ii. 108, n. 
 how master must approach pilot ground, ii. 108, n. 
 what constitutes an offer entitling pilot to his fees, ii. 109. 
 
 not necessary to go on board and tender services to master, ii. 109. 
 when hailing vessel sufficient, ii. 109. 
 association of pilots in some ports and for what purposes, ii. 109. 
 in others, each gets what he can, ii. 109. 
 advantage of latter system, ii. 109. 
 
 whether those at great distances have same authority, rights, and responsi- 
 bilities, as when nearer port, ii. 109. 
 carried by some coasting steamers, ii. 109. 
 
 absolute and exclusive control while on board in absence of master, and mas- 
 ter not then liable for accident, ii. 109. 
 his control in presence of master, ii. 109. 
 
 has control as soon as he stands on deck, but not such as wholly to supersede 
 the master, ii. 109, 110. 
 master not liable for wilful injury by pilot, ii. 109, n. 
 but when liable in case of a steamboat colliding, pilot being hired by 
 owners and at wheel, ii. 110, n. 
 master's duty to observe, iL 110, 112. 
 
 when master may disobey, and dispossess him of his authority, ii. 111. 
 injury caused by negligence of pilot alone, owners not responsible, ii. Ill, 
 and n.
 
 INDEX. 863 
 
 PILOTS — Continued. 
 
 otherwise, if negligence in the master, ii. Ill, and 488, n. 
 
 duty of pilot to determine when vessel should be brought up, ii. 116, and n. 
 
 to select time and place o*" coming to anchor, ii. Ill and n., 112. 
 
 so when ship taking her berth, time and manner of dropping anchor, ii. 112. 
 
 and manner of catting preparatory to bringing up to take berth, ii. 112, and n. 
 
 in California, held, not his duty to select berth, ii. 112, and n. 
 
 but shall moor the vessel, ii. 112, and n. 
 
 responsible for getting ship under way, ii. 112. 
 
 responsible for collision occasioned by ship dragging anchor, ii. 112. 
 
 although pilot on board, master's duty to see that good lookout is kept, ii. 112, 
 
 and n. 
 pilot to direct the course, master to have the management, of ship, ii, 112, 
 
 and n. 
 master's duty to give orders to cut rigging when two vessels entangled, ii. 112, 
 
 and n. 
 
 or send down top-gallant and main-royal yards, ii. 112, and n. 
 if pilot remiss in duty, how far, and when, master may interfere, ii. 113, and n. 
 if pilot leaves deck for a few minutes, and gives command to second mate, and 
 
 collision occurs, partly through fault of officer, ship responsible, ii. 113, 
 
 and n. 
 altering helm, upon being hailed, without exercising his own judgment, own- 
 ers liable, ii. 113, and n. 
 suggestions to, by master not an interference with, ii. 113. 
 what orders from boatswain or master would be, ii. 113, 114, and n. 
 when master liable for pilot's act or default, ii. 114. 
 II. How FAK Owners responsible for Torts of Pilot, ii. 114-119. 
 servant of owner, ii. 114. 
 
 for injuries resulting from default of, why owner responsible, ii. 114. 
 employed by owner, vessel held liable, ii. 114, n. 
 in England, provided by statute owner not liable, ii. 114. 
 alone in fault, owners not liable, ii. 114, n. 3. 
 
 neglect in navigation of vessel by, prima facie attributable to him, ii. 115. 
 burden on owners to show that pilot was alone in fault, ii. 115. 
 in constant employ of owners for fifteen years, owners held not liable, ii. 115, 
 
 n. 2. 
 where he has done his duty, but cannot leave the ship by reason of storm, 
 
 owners entitled to legal protection his presence gives, ii. 115, n, 2. 
 jurisdiction of the high court of admiralty, ii. 115, n. 2. 
 special pro\'ision in regard to, in particular acts, ii. 115, and n. 
 ports of Liverpool and Newcastle, ii. 115. 
 
 collision of two American vessels in Liverpool, held owners not liable if 
 pilot on board, ii. 115, n. 3. 
 master to take on board or pay pilotage, ii. 116. 
 
 whether taken on board by such compulsion that owner not liable for his acts, 
 ii. 116. 
 weight of authority in England, ii. 116. 
 conflict of decisions, ii. 116, n. 
 being alone to blame owners not liable, ii. 116, n. 
 in this country question unsettled, ii. 117.
 
 864 INDEX. 
 
 PILOTS — Continued. 
 
 opinion of Curtis, J., that owners not liable, ii. 117, n. 
 
 opinions of Grier, J., as to act of Pennsylvania that every vessel 
 
 shall be obliged to receive a pilot, not compulsory, ii. 117, n. 
 in California vessel in charge of a licensed pilot, owner not liable for 
 
 injuries through pilot's negligence or misconduct, ii. 117, n. 
 but if master in fault, otherwise, ii. 117, n. 
 provisions of merchant's shipping act relating to, ii. 117. 
 to be construed strictly, ii. 117, 118. 
 
 to exonerate owners, loss must be occasioned solely by fault of, ii. 118. 
 burden to prove this on them, ii. 118. 
 legislature may oblige foreign ships to take pilot, ii. 118. 
 ship neglecting to take one offering, owners answerable for the neglect, ii. 118. 
 ship lost by neglect of captors to take pilot; liability of captors to owners, 
 
 ii. 118, n. 
 if none can be obtained, and the most judicious course for master is to go in 
 
 without one, owners not liable, ii. 1 1 9, n. 
 pilots themselves answerable for damage by negligence or default, ii. 118, 119. 
 for negligently running into another ship, ii. 119, n. 
 but not for collision when steering by direction of officer in charge, 
 
 ii. 112, n., 119, n. 
 where steamboat hired for towing vessel, and they are attached, 
 
 ii. 119, n. 
 liable in damages civilly and criminally for refusing to board a vessel, 
 ii. 119, n. 
 PLATINA, limitation of carrier's liability for loss of, ii. 123. 
 PLEADINGS, ii. 369. 
 PLEDGE, of unfinished vessel, i. 67, n. 
 
 how distinguished from Bottomry, Kespondentia, and Mortgage, 1. 132, 133. 
 not to be made by factor, i. 509. 
 PORT, of registration, or enrolment, i. 34. 
 foreign, i. 142, n. 
 charges, i. 436. 
 of discharge, ii. 38, n. 
 ports to be visited in what order, ii. 38. 
 POTHIER, i. 6, 13. 
 POSSESSION, as evidence of ownership, i. 47. 
 
 of property by the court, to warrant sale, i. 77. 
 
 as affecting the question of sale, i. 63, 82 - 86. See Sale of Ship, VII. 
 • what notice of ownership supersedes, i. 85, n. 
 
 of part-owner, i. 85, n. 
 of mortgagor, when of mortgagee, i. 85, n. 
 
 of mortgagee, as determining his liability as owner. See Owner. 
 of party who mans the vessel, i. 278, 279. 
 under a charter-party, i 278-282. 
 by master, who is part-owner, i. 95 - 97 ; ii. 245. 
 
 constructive of vendor, so as to give right to stop in transitu. See Stoppage 
 in Transitu, III. 
 PRECIOUS METALS, contributory value of, in general average, i. 456. 
 limitation of carrier's liability for loss of, ii. 123.
 
 INDEX, 865 
 
 PREFERRED CLAIMS, for classes of, under Missouri statute, ii. 121, n. 
 PRESUMPTIONS, in prize causes, ii. 478. 
 PRIMAGE, ii. 431 ; ii. 4, and n. 
 PRINCIPAL AND AGENT. See Agency. 
 PRIVATEER, powers of master of, ii. 19. 
 
 liability of owners of, for the torts and acts of officers and crew, ii. 19, n. 3. 
 PRIVILEGIUM, ii. 248 - 250. 
 PRIZE. See Forfeiture. 
 
 freight, in cases of. See Admiralty Jurisdiction, ii. 253 - 259. 
 jurisdiction in, ii. 173, and n. 
 sale of ship condemned as, i. 74. 
 PRIZE CAUSES, ii. 458-478. 
 
 duty of master as to documents on board prize pointed out by statute, 
 ii. 458, 459. 
 
 to make inventory of them, seal them up, and send to court with written 
 
 statement as to condition, ii. 458. 
 and explaining absence of any documents or change in their condition, 
 
 ii. 458. 
 must send master, agent, or supercargo of, as witnesses, ii. 458. 
 and any person found on board supposed to be interested, ii. 458. 
 to be sent under charge of competent prize master and crew, ii. 458. 
 with explanation of absence of any witness, ii. 458. 
 in absence of instructions, will send to port most convenient to interests 
 
 of captor and claimant, ii. 458. 
 if pi-opertj"^ is not in condition to be sent in, survey and appraisement to 
 
 be made, how, ii. 458, 459. 
 and report sent to court where proceedings are to be had, ii. 459. 
 master of vessel claiming to share in, to send written statement, ii. 459. 
 to be filed in cause, ii. 459. 
 prize master's duty, ii. 459. 
 
 to go at once to designated port, ii. 459. 
 and deliver documents to prize commissioner, ii. 459. 
 report to district attorney, ii. 459. 
 deliver witnesses over to marshal, ii. 459. 
 
 and retain property till taken from him by process from prize court, 
 ii. 459. 
 district attorney's duty, ii, 459, 460. 
 
 to immediately file libel, ii. 459. 
 
 and obtain warrant directing marshal to take, ii. 459. • 
 
 to proceed to obtain condemnation and distribution, ii. 459. 
 
 to see that proper evidence is taken by prize commissioners, ii. 459. 
 
 and depositions de bene esse, ii. 459, 460. 
 to represent United States, ii. 460. 
 cannot act as counsel for captors, except, ii. 460. 
 must examine charges, and protect interests of captors and United 
 
 States, ii. 460. 
 must send statements quarterly to Secretary of Navy, ii. 460. 
 prize commissioner's duty, ii. 460, 461. 
 appointed by court, ii. 460. 
 to administer affidavit of prize master, ii. 460. 
 VOL. II. 55
 
 866 INDEX. 
 
 PRIZE CAUSES — Continued. 
 
 and to take evidence of witnesses separately, ii. 460. 
 on standing interrogatories, ii. 460. 
 witnesses in, ii. 461. 
 
 not to see interrogatories, documents, or papers, ii. 461. 
 
 or consult with counsel, ii. 461. 
 
 or any persons interested without special authority of court, ii. 461. 
 
 those having neutral rights to be discharged as soon as possible, 
 
 ii. 461. 
 depositions de bene esse, ii. 459, 460, 461. 
 commissioners to examine property, and report as to condition, ii. 461. 
 may apply for order to unlade, ii. 461. 
 
 to return documents into court seasonably and duly sealed, ii. 461. 
 to report to Secretary of Navy, when, ii. 461. 
 marshal, duties of, in, ii. 461, 462. 
 
 to have custody of property, ii. 461. 
 
 to report to court such as he deems ought to be unladen, stored, or sold, 
 
 ii. 461. 
 to insure, when, ii. 461. 
 
 to have custody, of all persons sent in as witnesses, ii. 461, 462. 
 to sell when ordered, and deposit gross proceeds, ii. 462. 
 to forward statement to Secretary of Navy whenever required, ii. 462. 
 property to be sold when perishing, perishable, or liable to deteriorate, 
 
 ii. 462. 
 or when parties agree thereto, ii. 462. 
 auctioneer of known skill to be employed, ii. 462. 
 catalogues and schedules to be prepared, ii. 462. 
 to be duly advertised at least five days, ii. 462. 
 notice of to be served on prize commissioner, ii. 462. 
 and goods to be open to inspection at least three days, ii. 462. 
 when decree of condemnation is rendered, court determines what ves- 
 sels participate in, ii. 462. 
 testimony in regard to, may be taken before whom, ii. 462, 463. 
 recitals of decree, ii. 46.3. 
 net proceeds go to captors, when, ii. 463. 
 one half to United States, when, ii. 463. 
 whole goes to captors who are privateers, unless otherwise provided in 
 
 their commissions, ii. 463. 
 all vessels of navy within signal distance share, if able to render assist- 
 ance, ii. 463. 
 otherwise as to vessels not of navy, except, ii. 463, 464. 
 distribution of prize money, ii. 464. 
 
 commanding ofBcer of fleet or squadron, one twentieth, ii. 464. 
 
 commanding officer of division, one fiftieth, when, ii. 464. 
 
 fleet captain, one hundredth, when, ii. 464. 
 
 commander of single ship, one tenth when acting under superior, and 
 
 three tenths when acting independently, ii. 464, 465. 
 rest divisible among all doing duty in proportion to rate of pay, ii. 465. 
 no commanding officer entitled unless vessel is actually under his 
 orders, ii. 465.
 
 INDEX. 867 
 
 PRIZE CAUSES — Continued. 
 
 person temporarily absent, shares, ii. 465. 
 
 and shares till regularly discharged, ii. 465. 
 
 bounties when enemy's vessel is sunk or destroyed, ii. 465, 466. 
 
 ransom money, salvage, bounty and proceeds of condemned property 
 distributed like prize money, ii. 466. 
 
 assignments of, must be attested by captain and paymaster, ii. 466. 
 
 commander required to discourage sale of, ii. 466. 
 appeals in, ii. 466, 467. 
 
 made directly to Supreme Court, ii. 466. 
 
 must be made within thirty days unless, ii. 466. 
 
 may be claimed when amount exceeds $ 2,000, ii. 466. 
 
 and in other cases, when, ii. 466. 
 
 district court may still make decrees of custody, disposal, and distribu- 
 tion, ii. 466. 
 
 original documents may be ordered to be sent up, ii. 466. 
 other points, ii. 467 - 478. 
 
 costs and expenses, a charge on, ii. 467. 
 
 no payments to be made except on order of court, ii. 467. 
 
 charges for work, labor, materials furnished, or money paid, to be sup- 
 ported by vouchers, ii. 467. 
 
 court may order payments at any time, ii. 467. 
 
 may require parties to give security for costs, ii. 467. 
 
 amount payable to United States or vessels of Navy, paid into Treas- 
 ury of United States, ii. 467. 
 
 subsequent proceedings, ii. 467. 
 
 as to sums due vessels not of navy, ii. 467, 468. 
 
 duties of clerks in, ii. 468. 
 
 allowances of marshal in, ii. 468. * 
 
 neither marshal nor clerk allowed more than compensation fixed by law, 
 ii. 469. 
 
 compensation of district attorney and prize commissioners, ii. 469. 
 
 compensation of auctioneer, ii. 469. 
 
 of special counsel, ii. 470. 
 
 fees of witnesses when there are no funds in cause, ii. 470, 471. 
 
 when court may deliver property on stipulation, ii. 471. 
 
 payment for goods taken for government use, ii. 471, 472. 
 
 transfer of prize property to another district for sale, ii. 472, 473. 
 
 penalty for wilful obstruction of prize laws, ii. 473. 
 
 meaning of " vessels of the navy," ii. 473. 
 
 libel need not be specific, ii. 473. 
 
 answer in nature of pleading, irregular, ii. 473. 
 
 if no claim is interposed, court may hear cause on ship's papers, ii. 473. 
 
 and if property appears to belong to enemy, immediately condemned, 
 ii. 473. 
 
 if doubtful or neutral, postponed for year and a day, ii. 473, 474. 
 
 and if not claimed within that time, condemned, ii. 474. 
 
 no lien superior to captors, ii. 474. 
 
 expenses of prize crew not needed as witnesses, incurred after arrival in 
 port, not chargeable on proceeds of prize, ii. 474.
 
 868 INDEX. 
 
 PRIZE CAUSES— Continued. 
 
 mortgages on vessels captured jure belli, treated as liens, subject to be 
 overridden by capture, ii. 474. 
 
 no costs allowed on seizures made on " probable cause," ii. 474, 475. 
 
 costs sometimes awarded against prize, though decree restores prop- 
 erty, ii. 475. 
 
 documents delivered lo captors alone admissible, ii. 475. 
 
 those concealed by captured, not afterwards admissible, ii. 475. 
 
 case decided on this evidence, and documents of prize, ii. 475. 
 
 but further proof may be required, ii. 475. 
 
 but this done with much reluctance, ii. 475. 
 
 oral testimony never admitted, ii. 475. 
 
 court may direct survey as to nature of property, ii. 475, 476. 
 
 property itself part of necessary evidence, ii. 475, 476. 
 
 papers on board other ships sometimes admissible, ii. 476. 
 
 in cases of joint or collusive capture, or where there is doubt, evidence 
 other than that arising from captured vessel resorted to, ii. 476. 
 
 ownership of great importance, ii. 476. 
 
 bill of sale almost conclusive, ii. 476. 
 grounds for condemnation, ii. 476, 477. 
 
 entire want of necessary papers, ii. 476, 477. 
 
 their destruction, ii. 477. 
 
 their material alteration or falsification, ii. 477. 
 
 time of making out papers material, ii. 477. 
 
 conduct of master and ofRcers, ii. 477. 
 
 prevarication in preliminary proof, ii. 477. 
 
 inability or refusal to give a good account of ship and cargo, ii. 477. 
 
 domicil of master and officers, ii. 477. 
 
 spoliation by law of nations conclusive evidence of hostile character, 
 ii. 477. 
 
 but English courts permit explanations, ii. 477. 
 
 and American courts still more lenient, ii. 477. 
 
 but always circumstance of grave suspicion, ii. 477. 
 
 persistent misrepresentation by claimant of character and destination of 
 voyage, sufficient cause for condemnation, ii. 477. 
 
 so where neutral owners employed former enemy owner as agent, ii. 477. 
 
 intent to violate blockade to be inferred from delay in sailing, ii. 478. 
 
 and from changing vessel's course, to elude visitation and search, ii. 478. 
 
 or from bills of lading, and letters and papers, ii. 478. 
 
 or from acts and words of owners or hirers of vessel, ii. 478. 
 
 or acts of shippers of cargo and their agents, ii. 478. 
 
 interest of witnesses does not render them incompetent, ii. 478. 
 
 official declarations of authorities of foreign states, evidence of facts 
 within scope of authority, ii. 478. 
 presumptions of law concerning, ii. 478. 
 
 possession by enemy, of hostile character, ii. 478. 
 
 flag, of nationality, ii. 478. 
 
 whether this is conclusive, ii. 478. 
 
 no defence, that capture is made in neutral waters, ii. 478. 
 PROCEEDS IN REGISTRY. See Admiralty Jurisdiction, ii. 231 - 235.
 
 INDEX. 869 
 
 PROCESS. See Mesiie Process, ii. 388 - 395 ; Final Process, ii. 494, 495. 
 PROCTORS, ii. 358 - 360. 
 
 meaning of, ii. 358. 
 
 in some districts, conduct whole case, ii. 358. 
 
 in others, only out of court, ii. 358. 
 
 officers of court, ii. 358. 
 
 and held to utmost good faith, ii. 358. 
 
 formerly usual for, to exhibit power of attorney, ii. 358. 
 
 now authority presumed, till disputed, ii. 358. 
 
 practice in England on this point loose, ii. 358, 359. 
 
 may make affidavit of any fact upon which to make motion, ii. 359. 
 
 to be present when suit is settled, ii. 359. 
 
 cannot compromise claim, without special authority, ii. 359. 
 
 but authorized to receive payment, ii. 359. 
 
 monition may not be served upon him, in different suit from that in which 
 retained, ii. 359. 
 
 respondent cannot settle case, without knowledge of proctor of libellant, ii. 359. 
 
 settlement by next friend, without such knowledge, set aside, ii. 359, 360. 
 
 owner, after decision, bound to pay proctor seamen's wages, ii. 360. 
 
 who has lien thereon for costs, ii. 360. 
 
 distinction between suit for wages and for tort, ii. 360. 
 
 intending to proceed for costs only, must give notice to opposing party, ii. 360. 
 
 garnishee order of common-law court cannot be reviewed by court of admi- 
 ralty, ii. 360. 
 
 and payment under, satisfaction of decree, ii. 360. 
 PROFITS, of ship, bill in equity filed on account of, i. 91. 
 
 contributory value of, in general average, i. 431. 
 PROHIBITION, WRIT OF, ii. 193. 
 PROOF, burden of See Evidence. 
 
 PROMISSORY NOTES. See Bills of Exchange and Promissory Notes. 
 PROMOTION, of officers and seamen, ii. 43, 44. 
 
 effect of, upon forfeiture of wages, ii. 95, 
 PROVISIONS, ii. 75 - 77. See Seamen, IV. 
 
 as appurtenant to ship, i. 80, 81, n. 
 
 when average loss. See General Average, i. 455. 
 PRUDENT UNINSURED OWNER, doctrine of, i. 71, and n. 
 PUBLIC PROPERTY, whether exempt from contribution in general average, in 
 United States, i. 476. 
 
 suit against can only be brought in Court of Claims, i. 476 ; ii. 151, 200, 303. 
 PUNISHMENT, of seamen, ii. 88 - 97. See Seamen, VIII. 
 
 Q- 
 
 QUARANTINE, whether delay by, gives claim to demurrage, i. 314, and n. 3 
 detention by, wages and provisions not subject to average, i. 399. 
 expenses, contribution for, i. 399. 
 
 R. 
 
 RACING. See Collision. 
 
 RANSOM, whether subject of general average, i. 417.
 
 870 INDEX. 
 
 RATS, damage by, i. 258. 
 
 REAL ESTATE, law of, how related to law of shipping, i. 25, 50. 
 RECEIPT, for goods delivered on board ship, its use and effect, i. 184- 186. 
 bill of lading considered as, i. 187, n., 188, n., 198, n., 504. 
 of seamen, effect of, ii. 41. 
 RECONSTRUCTION, of ship, i. 80, 81, n., 82. 
 REFEREES. See Commissioners and, ii. 455, 456. 
 REGISTRY AND NAVIGATION LAWS, i. 25-49. 
 I. History of, i. 25-27. 
 
 law of shipping stands between real law and law of personal property, i. 25. 
 ship personal property, but peculiar, i. 25, 50. 
 
 English registry and navigation acts, origin and provisions of, i. 26, 27. 
 character and advantages of British vessels, i. 26. 
 restrictions upon foreign vessels, i. 26, 27. 
 Anierican registry acts, i. 27. 
 n. What Ships may be eegisteeed and what enrolled, i. 28-33. 
 acts of 1789 and 1792, i. 28. 
 what ships may be registered, i. 28-30. 
 must be built in the United States, i. 27. 
 
 and owned wholly by citizens resident here, unless, i. 28, 29, 39. 
 entitled to registry under act of 1792, i. 28, 29. 
 exception, if owner resides in foreign country, i. 29, 39, 40. 
 act of 1797, i. 29. 
 act of 1859, i. 29. 
 
 foreign residence as disqualification for ownership, i. 29, 39, 40. 
 statute of 1804, i. 30. 
 
 transfer of registered ship to foreigner, subjects to forfeiture when, i. 30, 38, 39. 
 statute of 1793 as to enrolment, i. 30. 
 enrolled and licensed ships cannot proceed on a foreign voyage without taking 
 
 out register, i. 31. 
 subject to forfeiture if they attempt it, i. 31. 
 what constitutes a "foreign voyage," i. 31. 
 whaling voyage not, i. 31. 
 
 whether whale ship should be registered or enrolled, i. 31, 32. 
 vessel under twenty tons may be licensed and need not be enrolled, i. 32. 
 registration of vessels built here belonging to foreigners, 1. 32. 
 what recital in bill of sale necessary to new registration, i. 32. See also Sale 
 
 of Ship, I. 
 private acts of Congress, authorizing registration, i. 33. 
 act of 1864, i. 33. 
 act of 1865, i. 33. 
 III. How Vessels mat be registered or enrolled, i. 34-36. 
 at what port, i. 34. 
 
 name to be conspicuously painted on stern, i. 34. 
 what oatlis and certificates necessary, i. 34, 40, 41. 
 the disclosure of equitable interests, i. 34, 44, 45, n. 
 mortgagee may take out register, i. 45. 
 registration bond and provisions of, i. 34. 
 steamboats, how registered, i. 34, 35. 
 whale ships, if owned by incorporated company, i. 35.
 
 INDEX. 871 
 
 REGISTRY AND NAVIGATION LAWS — Continued. 
 temporary registration, i. 35. 
 change of captain, to be indorsed, i. 35. 
 loss of register, i. 35. 
 
 new register, upon sale of vessel, i. 35, 39. 
 
 after seizure, capture, or condemnation by, or sale to, a foreigner, vessel can- 
 not be again registered, unless, i. 36. 
 IV. Effect of Registry and Enrolment, i. 37 - 49. 
 enrolled vessels must be licensed annually, i. 37. 
 provisions of license, i. 37. 
 
 forfeiture for forging, or using another ship's license, i. 37, 40. 
 penalty for not complying with license, i. 37. 
 expiration and renewal of license, i. 37. 
 change of register for enrolment and vice versa, i. 37. 
 complications of the system, i. 37. 
 simpler method proposed, i. 38. 
 
 neither registration nor enrolment required, i. 38, 41. 
 disadvantages without, i. 38. 
 registration universal, i. 38. 
 change of vessel's name, how authorized, i. 38, 
 sale of enrolled vessel to foreigner subjects to forfeiture, i. 38, 39. 
 but of registered vessel, deprives her of American character only, i. 39. 
 forfeiture for false oath, i. 39. 
 
 when the property in a forfeited vessel vests in the United States, i. 39. 
 sale by part-owner without registration, i. 35, 39. 
 false oath taken innocently subjects to forfeiture, i. 39, 40. 
 when the master may be an American citizen resident abroad, i. 40. 
 but part-owner may not be, unless, i. 28, 29, 39. 
 forfeiture for fraudulent use of certificate of registry, i. 40. 
 temporary transfer to alien, for purpose of evading law of foreign country, i. 40. 
 in case of loss, register to be sent where, i. 40. 
 proof of infractions of registry law, i. 40, 41. 
 enrolment upon oath of master only, i. 34, 40, 41. 
 productions of the English possessions, in the East Indies may be brought 
 
 here in British vessel, i. 41, 
 registration wholly voluntary, i. 35, 41. 
 
 the register not a public, but a private document, i. 42, 43, 85, 86. 
 ■ register as evidence of ownership, i. 42. 
 how far evidence of national character, as against party obtaining, i. 44. 
 
 as between third parties, i. 44, 49. 
 Iiow far evidence of ownership, as against party obtaining, i. 41, 42-49, 
 85, 86. 
 
 as against third parties, i. 41, 42-49, 85, 86. 
 
 the oath of ownership applies to legal and not equitable ownership, 
 i. 34, 44. 
 
 mortgagee may take out register, i. 44. ■ 
 
 legal owner may contradict the register by showing equitable title in 
 another party, i. 44. 
 
 trusts by acts of parties, and operation of law, i. 46. 
 
 rights under a prior, unrecorded mortgage, agreement for sale, or claim, 
 as against subsequent party holding recorded title, i. 45, 46.
 
 872 INDEX. 
 
 REGISTRY AND NAVIGATION LAWS — Continued. 
 
 the registry as evidence of the continuation of ownership, i. 46, 47, 85, 86. 
 under British registry acts conckisive, except, i. 46. 
 under American acts not conclusive, or exclusive, i. 35, 36. 
 possession, assertion of owner.ship, and notoriety, as evidence of own- 
 ership, i. 47. 
 the register as evidence in favor of parties to it, i. 41, 46-49. 
 V. In other Respects : 
 
 sale, or transfer, of ship, how affected by registration act. See Sale of 
 
 Ship, I., II. 
 registration of builder's certificate, i. 67. 
 
 share of part owner to be inserted in register or enrolment, i. 90, n. 2. 
 whether charter-party must be registered, i. 275, 276. 
 RELEASE, liability of part-owner in solido, notwithstanding, i. 101, 102. 
 REPAIRS, cost of, and ability to obtain, criterion of master's power to sell ship, i. 08, 
 n. 2, 70, n. See Sale of Ship, III. 
 however extensive do not change ship, i. 80, 81, n. 82. 
 authority of one part-owner to procure, i. 97, n. 2. 
 liability of part-owners for, i. 100-105. See Part-Owners, III. 
 liability of owners for. See Oicners. 
 duty of owners to keep in repair. See Owners. 
 warranty for, in charter-party, i. 284. 
 bottomry bond for. See Bottomry, Hypothecation by, VI. 
 when the subject of general average. See General Average. 
 authority of master to bind owners for. See Master. 
 REPAIRS AND SUPPLIES, ii. 141-155, 322-337. 
 
 all material men have lien on sliip by general maritime law, ii. 322. 
 
 this enforced in admiralty courts in England till time of Charles II., 
 
 ii. 322. 
 since (till 1840) confined to case of shipwright or other person in pos- 
 session for purposes of repair, ii. 322. 
 this extends to all ships, ii. 323. 
 
 without distinction between foreign and domestic vessel, ii. 323. 
 lien for, furnished to foreign ship, enforced in admiralty, ii. 323. 
 
 otherwise as to domestic vessel, ii. 323. 
 formerly lien entertained in admiralty when jurisdiction was given by State 
 
 statute, ii. 323. 
 or where material man had common law lien growing out of possession, ii. 323. 
 proceeding ?n rem allowed by rule of Supreme Court in 1844, ii. 323, 324. 
 rule of 1859 confines to proceedings in personam, ii. 324. 
 
 lien by State law since enforced, ii. 324. 
 the question discussed, ii. 324, 325. 
 
 case of domestic vessel built on foreign account, ii. 325. 
 false holding out of domestic vessel does not prevent lien, ii. 325. 
 but each State foreign to the rest, in this respect, ii. 325. 
 
 enrolment of managing owner under oath, prima facie evidence, in contro- 
 verted case, ii. 325, 326. 
 and clear proof required to overcome it, ii. 326. 
 
 whether vessel built in one State taken to another to be rigged is foreign, 
 ii. 326.
 
 INDEX. 873 
 
 REPAIRS AND SUPPLIES — Continued. 
 
 residence of owner, and not of furnisher determines, ii. 326. 
 
 and no lien exists if furnisher does business in another State, ii. 326. 
 otherwise if goods were furnished through agent residing in another 
 State, ii. 326, 327. 
 ship broker has lien for services in obtaining crew and for advances for wages, 
 
 ii. 327. 
 and consignee, for necessary supplies furnished on credit of vessel, ii. 327. 
 owners have for anchor furnished by master to another vessel in foreign port, 
 
 ii. 327. 
 lender of money to purchase supplies has, ii. 327. 
 owner of ship-yard may sue in admiralty for hauling vessel out of water, ii. 
 
 327. 
 whether builder of ship can sue in admiralty for breach of contract, ii. 326, 
 327. 
 
 authorities say not, ii. 328. 
 requisites to give lien by material men on foreign ship before 1856, ii. 329, 330. 
 necessity and good faith requisite, ii. 329, 330. 
 adverse cases, ii. 330, 331. 
 present requisites, ii. 332-337. 
 
 necessity of supplies and repairs, ii. 332. 
 definition of, ii. 332. 
 
 cases where necessity was deemed, ii. 332, 333. 
 credit must be given to vessel, ii. 333. 
 this a matter of fact, ii. 333. 
 evidence of books admissible, ii. 333. 
 supplies deemed to be furnished on credit of ship and owners till 
 
 contrary is proved, ii. 333. 
 cases illustrating this, ii. 333. 
 credit must be necessary, ii. 334, 337. 
 
 evidence as to, undecided, ii. 334. 
 
 where charterers had no credit, immaterial as to general owner, ii. 334, 
 
 335. 
 provisions of 12th Admiralty Rule, ii. 335, 337. 
 cases illustrating, ii. 337. 
 lien of material man takes precedence of other claims, ii. 337. 
 lien of material men not lost on wreck, and portion saved by owners, ii. 337. 
 REPLEVIN by one part-owner against another, i. 93, 94. 
 REPLICATION IN ADMIRALTY, ii. 428. 
 REPRESENTATIONS. See Warranty. 
 as affecting sale of ship, i. 86. 
 in charter-party, as to burden of ship, i. 283, n. 2. 
 as to national character, i. 283, 284, n. 1. 
 as to standing of ship, as "A 1," i. 284. 
 of seaworthiness, i. 283 - 285, n. 
 as to repairs, i. 283 - 28.5, n. 
 RESPONDENTIA. See Bottomry, Hypothecation by. 
 RESHIPMENT, i. 231 ~ 239. See Carriage of Goods, IV. 
 RETURNS, duty of ship's husband as to, i. 109 - 1 1 1 . 
 liens on, i. 115.
 
 874 INDEX. 
 
 EEVIEW, LIBEL OF, ii. 489, n. 
 
 RHODIAN LAWS, i. 6, 7. 
 
 EIGGING, as appurtenant to ship, i. 80, n. 
 
 RIVEES, rules of collision on navigable, i. 546-548. 
 
 EOCCUS, i. 12. 
 
 EOLLE, i. 5. 
 
 EUBEICS, of the civil law, i. 6, 7. 
 
 EUDDEE, as appurtenant to ship, i. 80, n. 
 
 EULES OF PRACTICE. See Appendix. 
 
 S. 
 
 SAILS, as appurtenant to ship, i. 80, n. 
 
 SAILOES. See Seamen. 
 
 SALE BY OEDER OF ADMIRALTY, ii. 338-343. 
 
 usually to satisfy bottomry and respondentia claims, ii. 338. 
 
 also in suits in rem for wages and repairs, ii. 338. 
 
 conveys property free from prior incumbrances, ii. 338. 
 
 no warranty express or implied therein, ii. 338. 
 
 court may order sale of perishable goods, when, ii. 338. 
 
 when claimant does not apply for release of vessel to him under stipulation, a 
 
 sale may be ordered, ii. 338, 339. 
 sale under State statutes in good faith gives title sustained by admiralty, ii. 339. 
 even if fraudulent, if to innocent purchaser without notice, ii. 339. 
 and effect same as in sale in admiralty, ii. 339. 
 ' lien existing only by State law cannot afterwards be enforced against vessel, 
 
 ii. 340. 
 jfor disaster or decay, on petition of master, ii. 340, 341. 
 right denied in England, ii. 340. 
 sustained in America, ii. 341. 
 
 but not conclusive against owner or third parties, ii. 341, 342. 
 surveys, ii. 341, 342. 
 
 of great value in insurance and loss, ii. 341. 
 and in necessity of repair to justify loan on bottomry, ii. 341. 
 and in petition of master for sale, ii. 341. 
 not evidence except in peculiar circumstances, ii. 341. 
 reasons for calling, to be set forth, ii. 341, 342. 
 to be called by one having authority, ii. 342. 
 surveyors should be skilful, ii. 342. 
 examination to be made thoroughly, ii. 342. 
 
 all steps taken, conclusions, reasons, and facts, to be stated in, ii. 342. 
 petition o/ part-owners for , against will of others, ii. 342, 343. 
 denied in England, ii. 342. 
 power to sell affirmed in America, ii. 342. 
 but cases conflicting, ii. 343. 
 whether it can be set aside, ii. 343. 
 See Sale of Ship, V. 
 SAJLE OF SHIP, i. 50-89 
 
 I. Sale without Writing, i. 50-58. 
 
 transfers of real and of personal estate compared, i. 50.
 
 INDEX. 875 
 
 SALE OF SHIP — Continued. 
 
 by English and American registry acts, change of title in the vessels must be 
 indorsed on certificate of registry ; and the certificate of registry must be 
 recited at length in instrument of sale, i. 31, 50. 
 English act avoids sale otherwise made, i. 50, 58, n., and 59, n. 
 American act of 1792 withholds the privileges of American vessels simply, 
 i. 50, 59, n. 
 
 oral sale valid under this act, i. 53, 58. 
 the want of constitutional power in Congress , the cause of this difference, 
 
 i. 50-52. 
 provisions and effect of the registration act of 1850, i. 53, 58. See also post, II. 
 its constitutionality, i. 53, 58. 
 independent of statute, no bill of sale or writing necessary to sale, i. 53-58, 
 
 59, n. 
 transfer without writing does not absolutely avoid national character, and bill 
 of sale may be executed at any time before application for new register, 
 i. 59, n. 
 effect of forfeiture, i. 58, 59, n. 
 executory agreement to sell, i. 59, n. 
 misrecital of certificate in bill of sale, i. 59, n. 
 transfer by ojieration of law not affected by registry acts, i. 59, n. 
 II. Transfer by Bill of Sale, i. 59 - 63. 
 grand bill of sale, i. 59, 60, 67. 
 form of, i. 60. 
 
 effect of U. S. statute of 1850, upon State statutes, as to the recording of mort- 
 gages of personal property, i. 60, 61. See also ante, I. 
 
 must be recorded at custom-house where vessel registered, i. 62, n. 1, 
 this act does not apply to charter-parties, i. 62, n. 1 . 
 whether it abolishes State statutes, i. 61. 
 
 lien on vessels for supplies need not be recorded under this statute, 
 i. 62, n. 6. 
 if ship is at sea when mortgaged, i. 63. 
 mortgage of goods at sea, i. 63. 
 HI. Sale of Ship by the Bcilder, i. 63-67. 
 builder first owner, i. 63. 
 
 English statutes as to builder's certificates, i. 63, 64. 
 builder's certificates, how to be delivered and registered, i. 67. 
 when the property passes, if vendee is to pay by instalments, i. 64, n. 
 
 with reference to the forwardness of the vessel, i. 64, 66, n., 67, n. 
 whose loss, if ship to be paid for by instalments is destroyed while building, 
 
 i. 64. 
 if vendee appoints superintendent to take charge of building, i. 64, and 65, n. 
 distinction between sale and contract to sell, i. 64, 67, n. 3. 
 conveyance of keel after it is laid conveys subsequent additions, i. 66, n. 
 agreement to pledge unfinished vessel, i. 66, 67. 
 
 whether property passes, question of construction and intent, i. 65, 66, 67, n. 
 if property passes when vessel is unfinished, builder has right to complete, and 
 lien for full price, i. 64, 67, n. 2. 
 IV. Sale by the Master, i. 68 - 74. See Master. 
 valid, when justified by necessity, i. 68.
 
 876 INDEX. 
 
 SALE OF SHIP— Co»;mue(/. 
 
 no power to sell under several foreign ordinances, i. 68, n. 
 
 but might borrow on ship's credit, i. 68, n. 
 
 power not originally recognized in England, i. 68, n. 
 
 how the present doctrine grew up, i. 68, n. 
 
 not sufficient that sale be honest and for the benefit of all concerned, i. 68, n. 69. 
 
 there must be a necessity, 1. 68, n. 
 
 what is a necessity, i. 69, and n. ; ii. 14, 15. 
 
 moral necessity, i. 69, n. 
 
 cost of, and ability to obtain, repairs, criterion of necessity, i. 70, n. 
 
 may sell, if ship is total wreck, i. 70, n. 
 
 or if cost of repairs would exceed value of ship, i. 70, n. 
 the master's opinion of the necessity, i. 70, n. 
 
 sale at Bhering's Straits to three sea captains held invalid, i. 70, n. 
 whether the validity of the sale is to depend on the event of the vessel's 
 
 safety, i. 70, n. 
 actual danger, creating the necessity, not inconsistent with speedy escape, i. 71. 
 whether master may sell if prudent owner would have sold, i. 71. 
 the doctrine of " prudent uninsured owner," i. 71, and n. 
 whether want of funds will authorize such sale, i. 72. 
 sale must be of necessity, not of expediency, i. 73. 
 no distinction between sale on home and foreign shore, i. 73. 
 duty of master to communicate with owners before selling, i. 73. 
 if necessity existed, owners bound, i. 74. 
 V. Sale under a Decree of Admiralty, i. 74-78. 
 when valid and binding, i. 74, 75. 
 
 when the courts of the country where the ship belongs will look behind a for- 
 eign decree, i. 75, 76. 
 sale of ship condemned as prize, i. 74. 
 
 on ground of forfeiture, i. 74. 
 
 to pay salvage, i. 74. 
 
 to pay bottomry bond or satisfy lien, i. 74. 
 
 on ground of unseaworthiness, i. 75. 
 little known here, i. 75. 
 decree of admiralty in rem binding everywhere, i. 76. 
 reason of the rule, i. 76. 
 notice of sale, i. 76. 
 court must have possession of property sold, i. 77. 
 
 constructive possession, i. 77. 
 the court must be regularly constituted, i. 77. 
 its sufficiency may be inquired into, i. 77. 
 consul or party holding a commission in neutral port from his own country 
 
 cannot act as judge for such purpose, i. 78. 
 after wreck and abandonment, sale by foreign court conveys good title, i. 78. 
 may be impeached for fraud, i. 78, n. 2. 
 See Sale by order of Admiralty, ii. 338 - 343. 
 VI. The Appurtenances of a Ship, i. 78-82. 
 
 what passes by the words " ship," " ship and appurtenances," " apparel," 
 
 " furniture," i. 78. 
 ballast, i. 79, n.
 
 INDEX. 877 
 
 SALE OF SHIP — Continued. 
 
 kentledge, i. 79, n. , 
 
 boats, rigging, and stores, i. 79, n. 
 
 fishing-lines, tackle, and stores, i. 79, n. 
 
 provisions ; " fishing stores," i. 80, n. 
 
 cables and anchor, i. 80, n. 
 
 rudder and cordage purchased for ship, i. 80, n. 
 
 articles purchased for ship, i. 80, n. 
 
 sails and cordage detached, i. 80, n. 
 
 meaning of the word "appurtenances," i. 78, 79, n. 
 
 " furniture," i. 79, n. 
 different meanings when used in statutes and in contracts of insurance, i. 81, n. 
 cargo not appurtenances, 1. 81, n. 
 chronometer whether, i. 81. n. 
 ship remains the same however extensively repaired, and although all old 
 
 materials replaced by new, i. 80 and 81, n. 
 how if taken in pieces and reconstructed, i. 81, 82. 
 Vn. Possession of the Purchaser,]. 82-86. 
 ship chattel, but peculiar, i. 25, 82. 
 
 possession of ordinary chattel should accompany sale, i. 82, 126, and n. 
 possession of ship may be taken as soon as practicable, i. 82. 
 
 whether at sea or elsewhere out of reach, i. 85, n. 
 transfer of papers and registry, i. 82. 
 purchaser may wait vessel's arrival at home port, i. 83. 
 
 should send notice to master, i. 83. 
 sale passes not merely inchoate rights, but full property, liable to be divested 
 
 by laches, i. 82, 83. 
 importance of this distinction, i. 83. 
 which of two innocent transferees holds, i. 83. 
 
 why vendee must take possession within reasonable time, i. 83, n. 126, and n. 
 conveyance of vessel by deed, i. 84, n. 
 actual and symbolical delivery, i. 84, 85, n. 
 distinct sale by different partners ; vendee who first obtains possession holds, 
 
 i. 85, n. 
 what notice supersedes necessity of taking possession, i. 85, n. 
 possession of part owner, i. 85, n. 
 
 mortgagor, when possession of mortgagee, i. 85, n. 
 when purchaser neglects to take possession, i. 84, 85. 
 effect of custom-house registration or change of ownership, i. 85, 86. 
 Vni. Rules regulating Sale of Chattels how applicable to Sale op 
 
 Ship, i. 86-89. 
 ship built for particular purpose, implied warranty of fitness, i. 86. 
 the rule of caveat emptor, i. 86. 
 material representations, i. 87. 
 
 parol evidence to vary bill of sale, or other written contract, i. 87, n. 3. 
 fraud vitiating bill of sale, i. 87, n. 3. 
 sale of ship " with all her faults ; " disclosure of faults, i. 87. 
 
 in Louisiana, i. 87. 
 representation that ship was built in a certain year, i. 88, n. 
 
 that she was copper-fastened, i. 88, n. 
 if certain representations are made and ship sold " with all her faults," i. 88, n.
 
 878 INDEX. 
 
 SALE OF SHIP — Continued. 
 
 representations as to dimensions and burden, i. 88, n. 
 
 ownership prior to date of bill of sale may be shown, i. 89. 
 
 parol agreement not admissible to defeat vendee's title under bill of sale, i. 89. 
 
 if contract stipulates that vessel shall be built, rigged, and delivered afloat on a 
 
 certain day, builder must deliver vessel to rigger in time for him to rig her 
 
 before stipulated day, i. 89. 
 IX. In other Kespects. 
 
 how affected by registry laws See Registry ana Navigation Laws. 
 under lien by Indiana statute, i. 119, n. 
 seamen entitled to wages up to time of, ii. 60, 61. 
 SALVAGE, ii. 260-321. 
 
 sale of ship, to pay, i. 74. 
 settled on a general average loss, i. 362. 
 upon bottomry bond, i. 151. 
 I. General Principles of, ii. 260-263. 
 
 eminently a subject of admiralty jurisdiction, ii. 260. 
 
 at law, salvor must prove contract with owner of property, ii. 260. 
 
 meaning of, ii. 260. 
 
 in insurance, means property saved, ii. 260. 
 
 in admiralty, compensation, ii. 260. 
 
 interest of co-salvors, several, ii. 260. 
 
 and payment to one is not payment to another, ii. 260. 
 
 seamen may sue in rem, if master settled without their consent, ii. 261. 
 
 different parts of sliip or cargo never given to different salvors, ii. 261. 
 
 but portions of value of whole property saved, ii. 261. 
 
 specific sum sometimes given, ii. 261. 
 
 salvor in possession has qualified property, ii. 261. 
 
 not necessary for him to remain in actual possession, ii. 261. 
 
 salvors' rights and convenience to be respected, ii. 261. 
 
 nor can he be divested of his interest, ii. 261. 
 
 until taken from him by decision of court, ii. 261. 
 
 owner does not lose right of property, ii. 261. 
 
 master may relieve property from lien of salvors, by payment of claim, 
 
 ii. 262. 
 and may use reasonable discretion therein, ii. 262. 
 otherwise, salvors entitled to determine course of ship, ii. 262. 
 power of salvors over vessel, ii. 262. 
 all may join in one libel, ii. 262. 
 
 if different libels are filed unnecessarily, costs not chargeable to proceeds, ii. 262. 
 libels separate, if rights of parties are adverse, ii. 263. 
 claim of ship-owners for freight to be made by separate libel, ii. 263. 
 so for general average, ii. 263. 
 whole case taken up by appeal, ii. 263. 
 appellate court unwilling to vary decree of lower court, if question is only of 
 
 amount or proportion, ii. 263. 
 each claimant treated as distinct appellant, ii. 263. 
 
 co-shippers should not interfere in behalf of other shippers unless, ii. 263. 
 salvor not included in settlement cannot compel distribution of money paid to 
 
 other salvors, ii. 263.
 
 INDEX. 879 
 
 SALVAGE — Continued. 
 
 vessel performing salvage service on another vessel, and unintentionally injur- 
 ing her, not liable, ii. 263. 
 vessel not liable for salvage due from cargo, or vice versa, ii. 263. 
 II. Who may be Salvoks, ii. 264-279. 
 
 persons not bound to render services, ii. 264. 
 
 motives immaterial, ii. 264. 
 
 but may affect amount of compensation, ii. 264. 
 
 whether, persons taking forcible possession of vessel, ii. 264. 
 
 crew, in general, cannot be, ii. 264. 
 
 two of crew remaining after abandonment, entitled to, ii. 265, n. 
 
 except where contract is at end, ii. 265, 266. 
 
 or service entirely out of line of ordinary duty, ii. 266. 
 
 person requested by owner to take command may be, ii. 267. 
 
 unless an agreement is made for compensation, ii. 267. 
 
 crew bound to suppress mutiny at all hazard, ii. 267. 
 
 and not entitled to salvage therefor, ii. 267. 
 
 but crew of another ship may be, ii. 267. 
 
 if part of crew of one ship save another, all may claim, ii. 267, 277. 
 
 but not equally, ii. 267. 
 
 otherwise, as to crew of light-ship, ii. 267, 268. 
 
 crew of wrecked ship, passengers aboard another, as part of crew saving third 
 
 ship, entitled to share of salvage, ii. 268. 
 so with all passengers, ii. 268. 
 
 but passenger saving his own ship not entitled, ii. 268. 
 but extraordinary services may give claim, ii. 268. 
 or if relation as passenger is dissolved, ii. 268, 269. 
 pilot within line of duty not entitled, ii. 269. 
 otherwise, if performing extraordinary services, ii. 269. 
 so persons assuming character of pilot, ii. 269, 270. 
 pilots compensated for extra services formerly in England, ii. 270. 
 but not as salvors, ii. 270. 
 meaning of pilotage, ii. 270. 
 States authorized to make pilot laws, ii. 271. 
 and questions relating thereto tried in State courts, ii. 271. 
 and in United States courts, ii. 271. 
 duty of pilot to assist vessels in distress, ii. 271. 
 extra compensation awarded, ii. 271. 
 but not as salvage services, ii. 271. 
 otherwise, in certain cases, ii. 271. 
 officer of customs may claim, ii. 272. 
 but services must be out of official duty, ii. 272. 
 so of magistrates, ii. 272. 
 and agents of insurance compatiies, ii. 272. 
 prize ship in distress subject to salvage, ii. 272, 
 
 persons restoring property feloniously abstracted by, entitled, ii. 272. 
 officers and crew of national vessels not entitled, in case of mutiny, ii. 
 
 272, 273. 
 except for extraordinary efforts, ii. 273. 
 but in ordinary salvage services entitled, ii. 273.
 
 880 INDEX. 
 
 SALVAGE — Continued. 
 
 and salvage claim less than others, ii. 273. 
 
 this right, in England, taken away by statute, ii. 273. 
 
 otherwise in this country, ii. 273. 
 
 coast-guard may claim, ii. 273, 274. 
 
 steamer entitled to, ii. 274, 275. 
 
 if ordinary towage service, ordinary compensation allowed, ii. 275. 
 
 sailing vessel may earn by towage, ii. 275. 
 
 if agreement is made to tow, court will not increase sura agreed upon, ii. 275. 
 
 exception to this, ii. 275, 276. 
 
 towage one contract though by different boats of same company, ii. 276. 
 
 if vessel agrees to pilot another into port, no extra pay allowed for towage, 
 
 ii. 277. 
 towage away from fire, a salvage service, ii. 277. 
 so, if to avoid collision, ii. 277. 
 salvors must directly aid in service, ii. 277. 
 or promote it by doing work of those rendering it, ii. 267, 277. 
 owners of saving vessel may claim for stores supplied, and for salvage, ii. 278. 
 owner of cargo cannot, ii. 278. 
 
 unless stoppage or deviation was assented to by him, ii. 278. 
 lord of manor cannot claim, when, ii. 278. 
 
 no difference in service if salvors act under official direction, ii. 278. 
 charterers of vessel not entitled, ii. 278. 
 except under special circumstances, ii. 278. 
 if vessel owned by person chartering vessel to which salvage is rendered, no 
 
 claim, ii. 279. 
 exception as to East India Company, ii. 279. 
 persons convicted of improper interference with wrecked property cannot claim, 
 
 ii. 279. 
 if court is of competent jurisdiction, ii. 279. 
 III. Of DIFFERENT Sets OF Salvors, ii. 279-282. 
 
 salvors saved by other salvors, do not lose claim, ii. 279. 
 both share according to merit, ii. 279. 
 second set have no right to interfere with first, ii. 279. 
 unless under reasonable belief that first cannot save property, ii. 279. 
 then they may, although first set resist their interference, ii. 280. 
 party first taking derelict has vested interest in property, ii. 280. 
 no one can interfere with him, ii. 280, 281. 
 except in case of manifest incompetency, ii. 281. 
 province of master to determine necessary assistance, ii. 281. 
 and first set cannot prevent assistance of others ifmaster wishes their aid, ii. 281. 
 salvors have no claim to derelict as against master, ii. 281. 
 if first set abandon, their right lost, ii. 281. 
 but may claim, if they have made the saving easier, ii. 281. 
 not entitled if they have injured the property, ii. 281. 
 
 agreement by first set to abandon claims, if made condition by second for ren- 
 dering assistance, not binding, ii. 281, 282. 
 services performed unnecessarily by second set enure to benefit of first, ii. 282. 
 property saved and given over for transportation to port, gives no claim to 
 transporting vessel for, ii. 282.
 
 INDEX. 881 
 
 SALVAGE — Continued. 
 
 IV. What amounts to Salvage Service, ii. 282 - 288. 
 peril must be beyond ordinary danger, ii. 282. 
 and property exposed to destruction unless aid is rendered, ii. 282. 
 if master can save property, interference of salvors presumed unnecessary, 
 
 ii. 282. 
 but salvors may show that master would not have saved it, ii. 283. 
 salvors purposely delaying, not rewarded as salvors, ii. 283. 
 not necessary that distress should be actual or immediate, ii. 283. 
 or that danger should be imminent and absolute, ii. 283. 
 property must be saved by those claiming as salvors, ii. 283. 
 or their exertions must tend in some degree to save it, ii. 283. 
 distinction between salvors who volunteer and those who are hired, ii. 284. 
 if salvors bring vessel to safe place, and give her in charge of pilot, his 
 
 negligence does not prejudice claim, ii. 284. 
 whether bad weather enhances, ii. 284, 285. 
 fraudulent imperilling by master does not defeat, ii. 285. 
 
 unless salvors are cognizant, ii. 285. 
 equally a salvage service, whether rendered at sea or on the coast, ii. 285. 
 or by landsmen or by seamen, ii. 285. 
 instances of salvage services, ii. 286, 287. 
 vessels in collision, bound to assist each other, ii. 287. 
 and the one aiding cannot claim salvage, ii. 287. 
 though the one assisted was cause of accident, ii. 288. 
 in a proper case salvage would be decreed, ii. 288. 
 vessel driven ashore by wind or accident a fit subject for, ii. 288. 
 V. Of Derelict, ii. 288-292. 
 no certain definition, ii. 288. 
 
 ship abandoned by crew without intent to return, ii. 288. 
 or hope of saving by their own exertions, ii. 288. 
 
 even if saved afterwards by crew receiving unexpected assistance, ii. 289. 
 ship not derelict if left with purpose of returning, ii. 289. 
 nor if master and crew remain, giving up control to salvors, ii. 289. 
 property deserted, presumed derelict, ii. 289. 
 if left without intent, derelict de facto, ii. 289. 
 but not de jure, ii. 289. 
 
 mere intent to send steamer for ship does not prevent dereliction, ii. 290. 
 ship or goods sunk, derelict, ii. 290. 
 
 but not if owner had not lost purpose of recovery, ii. 290. 
 or ceased efforts therefor, ii. 290. 
 
 goods saved from wreck with crew, not derelict, ii. 290. 
 nor if vessel goes to pieces and cargo floats out, ii. 290. 
 provided master is endeavoring to save, ii. 290. 
 unless goods float out to sea, ii. 290. 
 
 salvor in good faith taking possession, no trespasser, ii. 291. 
 finder of property lost, has title against all but owner, ii. 291. 
 in England, derelicts at sea formerly belonged to Lord High Admiral, ii. 291. 
 this right given up to sovereign in time of Queen Anne, ii. 291. 
 wrecks cast ashore in England, belong to lord of manor, ii. 291. 
 and unless owner appear within a year and day, belong to him, ii. 291. 
 VOL. II, 56
 
 882 INDEX. 
 
 SALVAGE — C-Mtimed. 
 
 disposition to be made in America, of property found abandoned, unsettled, 
 ii. 291. 
 
 if no claimant appear, government holds in trust for owner, ii. 291. 
 
 practice in some places to keep proceeds a year and day, and no owner ap- 
 pearing, to pay them over to finder, ii. 291, 292. 
 V^I. Compensation in Cases of Salvage, ii. 292-301. 
 
 not mere pay or remuneration, ii. 292. 
 
 but reward, ii. 292. 
 
 admiralty precedents as to, on the ocean, inapplicable to western rivers, ii. 292. 
 
 no fixed rule for determining amount, ii. 292. 
 
 or proportion to be divided between salvors, ii. 292. 
 
 one half given to salvors of derelict, ii. 293. 
 
 but this not a fixed rule, ii. 293. 
 
 determined by circumstances of case, ii. 293. 
 
 by danger, skill, and duration of service, ii. 293, 
 
 not more than a half, nor less than a third, ii. 293. 
 
 courts would hesitate as to half, unless, ii. 293. 
 
 rule of moiety formerly seldom exceeded, ii. 293, 294. 
 
 steam-tug kept constantly employed entitled to full sum, ii. 294. 
 
 criterion of, ii. 294, 295. 
 
 difference between articles easily saved and those more bulky, ii. 295. 
 
 less for former than latter, ii. 295. 
 
 this inapplicable in America, ii. 295. 
 
 may be diminished to slight compensation, ii. 296. 
 
 amount dependent on circumstances of case, ii. 296. 
 instances, ii. 296, 297. 
 
 when salvor's vessel is lost while engaged in, burden of proof on defendant to 
 show loss caused by fault of salvors, ii. 297. 
 
 court has no power to decree salvage for saving life merely, ii. 297. 
 
 but if connected with preservation of property, can notice it, ii. 297. 
 
 whether connection is by accident or not, ii. 297. 
 
 whether, if lives are saved by one vessel and property by another, the former 
 may have salvage, ii. 297. 
 
 exception in case of slaves, ii. 298. 
 
 their owner contributes according to value, ii. 298. 
 
 no deviation, if vessel leaves her course to save life, ii. 298. 
 
 and insurance not forfeited, ii. 298. 
 
 otherwise, in deviation to save property, ii. 298. 
 
 compensation for forfeiture of insurance to be made, ii. 298. 
 
 ordinarily owners have one third of amount decreed, ii. 299. 
 
 but may have more, if ship is exposed to peculiar danger, ii. 299. 
 
 none if master contracted to perform service, ii. 300. 
 
 only for wear in service by boats from shore, ii. 300. 
 
 refused to owners where crew, after abandonment, fell in with boats of another 
 vessel abandoned, and saved the latter, ii. 300. 
 
 sending men aboard ship short-handed, a salvage service, ii. 300. 
 
 and owner entitled to compensation, ii. 300. 
 
 but not large, unless his own vessel was materially weakened, ii. 300. 
 
 employment of vessel an ingredient in determining, ii. 300,
 
 INDEX. 883 
 
 SALVAGE — Continued. 
 
 that of master twice as much as mate's, ii. 301. 
 but no fixed rule to regulate this, ii. 301. 
 apprentice's share belongs to him, ii. 301. 
 agreement to the contrary void, ii. 301. 
 slaves entitled to, for own use, ii. 301. 
 
 shares of co-salvors refusing to accept, enure to benefit of owners, ii. 301. 
 Vn. On what Property allowed, ii. 302 - 304. 
 on all property saved, ii. 302. 
 on ship, cargo, and freight, ii. 302. 
 on public property, ii. 302. 
 
 goods of government pay same rate as those of individuals, ii. 302. 
 exception in favor of the mails, ii. 303. 
 and perhaps in ship-of-war of our own government, ii. 303. 
 foreign neutral vessels of war cannot be arrested, ii. 303. 
 so private armed vessels under commission of foreign government, ii. 303. 
 none on clothing left by master and crew, ii. 303. 
 nor on money on person of dead man, ii. 303. 
 nor for saving bills of exchange, ii. 304. 
 or evidences of debt and documents of title, ii. 304. 
 none for charges for repairs, ii. 304. 
 
 otherwise, if repairs were necessary and properly made, ii. 304. 
 rights of co-shippers sometimes distinct, ii. 304. 
 no difierence between ship and cargo, ii. 304. 
 VIII. How Claim may be barred, ii. 304-315. 
 
 by custom to render services gratuitousli/, ii. 304 - 306. 
 
 where ships sail as consorts under contract to assist each other, ii. 305. 
 
 whether if both ships belong to same owner, ii. 305. 
 
 doubted whether custom would bar, ii. 305. 
 
 but it may, even if vessels are not consorts, ii. 305. 
 
 nor owned by same owner, ii. 305. 
 
 custom for steamers on Mississippi to draw others off sand bar, ii. 305. 
 
 custom in one port not binding on ships of other ports assisting vessels 
 at port of custom, ii. 305. 
 
 whether custom that steamers should aid sailing vessels, is good, ii. 
 305, 306. 
 by aid under special contract, ii. 306 - 314. 
 
 such contract enforced only if equitable, ii. 306. 
 
 and conforming to merits of case, ii. 306. 
 
 otherwise disregarded, ii. 306. 
 
 clear understanding of nature of agreement necessary, ii. 307. 
 
 and that it be made fairly and impartially between all concerned, ii. 307. 
 
 parties must be capable of judging as to obligations, ii. 307. 
 
 agreement must be distinct between parties, ii. 307. 
 
 and for given sum, in explicit terms, ii. 307. 
 
 conversation as to compensation disregarded, ii. 307. 
 
 agreement may be verbal, ii. 307. 
 
 and rescinded by mutual consent, ii. 308. 
 
 contract may be valid, leaving price to be determined, ii. 309. 
 
 agreement to take ship to place of safety includes cargo, ii. 309.
 
 884 INDEX. 
 
 SALVAGE — Continued. 
 
 agreement for separate salvage on cargo not binding, ii. 309; 
 
 extra compensation for towing not to be increased on account of addi- 
 tional service rendered, ii. 309. 
 
 rate fixed in prior contracts not imperative, ii. 310. 
 
 claim forfeited by gross misconduct, ii. 310. 
 
 and by embezzlement, ii. 310. 
 
 innocent co-salvors not affected thereby, ii. 310. 
 
 salvors bound to use reasonable care, ii. 311, 312. 
 
 and this lasts as long as property is subject to decree of court, ii. 312. 
 
 theft while it is in custody of court works forfeiture, ii. 312. 
 
 property embezzled after being saved, and restored to owner, liable for 
 salvage, ii. 313. 
 
 but only to salvors innocent of embezzlement, ii. 313. 
 
 but want of skill or due care forfeits or diminishes their claim, ii. 313. 
 
 negligence of salvor not excused by presence of pilot, ii. 313. 
 
 attempts at extortion work forfeiture or diminution, ii. 313. 
 
 master cannot give away cargo or stores, ii. 314. 
 
 and acceptance thereof by salvors forfeits or diminishes claim, ii. 314. 
 • so connivance with waste of stores, ii. 314. 
 
 by lapse of time, ii. 314, 315. 
 
 salvors competent witnesses for each other, ii. 314. 
 
 this arises from necessity, ii. 314. 
 
 competency limited by such necessity, ii. 314. 
 
 incompetency to prove independent facts provable by other testimony, 
 ii. 314. 
 
 material perjury, an embezzlement of truth, ii. 314. 
 
 and works forfeiture, ii. 314. 
 
 this question not yet adjudicated, ii. 314, 415. 
 IX. Military Salvage, ii. 315-321. 
 
 demandable of right for property saved from pirates, ii. 315, 3\&. 
 
 and from public enemy, ii. 316. 
 
 in recapture, an incident of prize, ii. 316. 
 
 awarded, whether prayed for in libel or not, ii. 316. 
 
 amount regulated mostly by statute, ii. 316. 
 
 in England may be increased for extra service, ii. 317. 
 
 all concerned in recapture have lien for salvage, ii. 317. 
 
 and actions in pei'sonam and in rem, ii. 317. 
 
 in England no part of duty of crew, as seamen, to rescue ship, ii. 317. 
 
 and rescue a voluntary and meritorious act, ii. 317. 
 
 salvor need not incur personal risk, ii. 318. 
 
 freight must contribute to salvage if voyage is commenced, and capture and 
 
 recapture occur, ii. 318. 
 and whole freight included in valuation on which salvage is given, ii. 318. 
 valuation to be ascertained by sale, ii. 318. 
 recapture must be legal, ii. 318. 
 if founded on tort, no compensation due, ii. 318. 
 ■whether to be decreed in recapture, a difficult question, ii. 318. 
 one of mixed law and fact, ii. 318. 
 allowed where condemnation and sale were illegal, ii. 319.
 
 INDEX. 885 
 
 SALVAGE —Continued. 
 
 . not taken away by subsequent capture and condemnation in enemy's port, if 
 sentence is annulled by sovereign, ii. 319. 
 
 decreed where captured ship was abandoned to pursue another prize, and- 
 afterwards found derelict, ii. .319. 
 
 allowed in recapture from pirates, ii. 319. 
 
 restitution without salvage decreed in capture by foreign cruiser fitted out in 
 violation of neutrality laws, ii. 320. 
 
 none for stopping ship from entering enemy's port, ii. 320. 
 
 none unless ship assists actually in recapture, ii. 320. 
 
 so in capture, condemnation, sale to enemy, and recapture, ii. 320. 
 
 neutral cannot claim for recajiture from belligerent, ii. 320. 
 
 allowed in recapture of property of friends and allies from common enemy, 
 ii. 321. 
 
 neutral must return prize, abandoned by belligerent by necessity, to belliger- 
 ent, ii. 321. 
 
 but if taken by voluntary permission, to owner, after deducting salvage, ii. 321. 
 
 may be due, although ship captured was friendly, ii. 321. 
 
 allowed for enticing vessel within reach of fleet by signals, ii. 321. 
 SEAL, charter-party under, i. 276, n. 
 
 master's power to make contract under, ii. 12. 
 
 efi'ect of, in admiralty, ii. 42. 
 
 and signature, must be distinct and legible to secure official respect, ii. 85, n. 
 SEAIVIEN, ii. 32-105. 
 
 I. How Seamen are regarded bt the Courts, ii. 32 - 34. 
 
 peculiarly in need of, and entitled to, protection of courts, ii. 32. 
 
 reasons therefor, ii. 32. 
 
 wards of admiralty, ii. 32, n. 
 
 their contracts regarded with rigid scrutiny, ii. 32, n. 
 
 and set aside as inequitable, if unjust and unreasonable, ii. 32, n., 39, n. 
 
 statutes in behalf of, ii. 32, 33. 
 
 prohibition against foreign, in our ships, ii. 33. 
 
 applied to subjects and citizens of what countries, ii. 33. 
 
 statute seldom regarded, ii. 33. 
 
 and repealed, when, ii. 33. 
 
 repealing act, provisions of, ii. 33. 
 
 seamen prohibited from wearing sheath-knives, ii, 33. 
 duties of officers in regard to, ii. 33. 
 
 prohibition as to colored seamen, ii. 33. 
 construction of, ii. 33, 34. 
 
 most important points of statutory provisions for, ii. 34. 
 
 first, shipping articles, ii. 34. 
 
 second, wages, ii. 34. 
 
 third, provisions and substance, ii. 34. 
 
 fourth, seaworthiness of ship, ii. 34. 
 
 fifth, care of seamen in sickness, ii. 34. 
 
 sixth, bringing them home, ii. 34. 
 
 eeventh, regulation of punishment, ii. 34. 
 
 eighth, respecting desertion, and discharge either at the beginning or during 
 the voyage, ii. 34.
 
 886 INDEX. 
 
 SEAMEN — Continued. 
 
 II. Of the Shipping Articles, ii. 34-47. 
 • every master bound to have, ii. 34. 
 
 penalty for each person not signing, ii. 34. 
 
 must be signed by every seaman, ii. 34. 
 
 must describe accurately voyage, and terms for which seaman shipped, ii. 34, 35. 
 
 general coasting and trading voyage within the act, ii. 35, n. 
 
 extends to lakes and inland navigation, ii. 35, n. 
 
 master must produce log-book and contract when required, or parol evidence 
 
 of them may be given, ii. 35, n. 
 depositing originals with collector of port, at time of contract, ii. 35, n. 
 distinct and reasonable notice if seamen want them, ii. 35, n. 
 in absence of statement of seamen in libel, evidence of what, ii. 35, n. 
 if owners prove reasonable excuse for not producing, may contradict by parol 
 
 mariner's statement of contract, ii. 35. 
 admissible as evidence of what, ii. 35. 
 against loose and indefinite language in, or unfair and unusual stipulation, 
 
 courts interfere, ii. 35. 
 new clause in, if relied on, must be pleaded, ii. 35, 36. 
 doubt in meaning, seamen benefit of doubt, ii. 35. 
 signed under duress and protest, invalid, ii. 36, n. 2. 
 voyage from place to place "and elsewhere," meaning of, ii. 36. 
 from Baltimore to Cura9oa and elsewhere, does not authorize voyage to St. 
 
 Domingo, ii. 36, n. 
 void for uncertainty, when, ii. 36, n. 
 there must be a terminus a quo and ad quern, ii. 36, n. 
 
 " from London to Batavia in East India seas or elsewhere and until final 
 arrival at any port or ports in Europe," seamen not bound, upon arrival at 
 Cowes, to proceed to Rotterdam, ii. 36, n. 
 what authorizes voyage from Gibraltar to South America, ii. 36, n. 
 what from Philadelphia to South America, ii. 36, n. 
 shipments of seamen contrary to acts of Congress void, ii. 36, n. 
 what not a compliance with act of 1790, ii. 37, n. 
 must be limits of time and space between the fixed termini, ii. 37, n. 
 meaning of word "cruise" in, ii. 37, n. 
 trading voyage does not include freighting voyage, ii. 37, n. 
 nor whaling voyage a trading voyage to dispose of cargo when obtained, 
 
 ii. 37, n. 
 from the home port to Appalachicola or elsewhere for a market, sufficient de- 
 scription, ii, 37. 
 meaning of a "port of discharge in the United States," ii. 38, n. 
 
 a port in slave State where colored seamen remain in jail, not, ii. 38, n. 
 " wherever freight may offer," how construed, ii. 38, n. 
 when held not to cover a voyage from West Indies to Boston and back within 
 
 the period specified, ii. 38, n. 
 "from Boston to one or more ports south, thence to one or more ports in 
 Europe and back to a port of discharge in the United States," sufiicient 
 description, ii. 38, n. 
 if port described in, as being " a final port of discharge," voyage not ended till 
 when, ii. 38, n.
 
 INDEX. 887 
 
 SEAMEN — Continued. 
 
 " and elsewhere " in, usage may give precise meaning to, ii. 37, n. 
 
 same objection to word " elsewhere " does not apply in a whaling, as in trad- 
 ing or freighting voyage, ii. 37, n. 
 
 should declare explicitly ports of beginning and termination of voyage, ii. 37, 38. 
 
 if number of ports named must be visited, in what order, ii. 38. 
 
 if by, master is to have discretion, courts will not interfere, ii. 38, 39. 
 
 other stipulations in, sustained or rejected as they seem to be fair or otherwise, 
 ii. 39. 
 
 if contraband goods found in forecastle, that seamen should forfeit wages and 
 £10, ii. 39, n. 
 
 penalty of £ 10 cannot be enforced, ii. 39, n. 
 
 " to pay for medicine and medical aid further than the medicine chest affords," 
 inequitable, ii. 39, n. 
 
 that seamen will sue for wages in common law courts, ii. 39, n. 
 
 that all differences between master or owners and crew shall be referred to ar- 
 bitration ; demand of wages not a difference, ii. 39, n. 
 
 courts of admiralty in regard to, not confined to rules of common law, ii. 39, n. 
 
 act as courts of equity, ii. 39, n. 
 
 stipulations in, derogating from rights of seamen, will be held void, and why, 
 ii. 39, n., 40, n., 41, n. 
 
 unless, either the cause be fully explained to them, ii. 39, n. 
 
 or additional compensation adequate to restrictions and risk is given, ii. 39, n. 
 
 that seamen might leave ship at end of three months, if in port and safety, 
 and captain sole judge, void, ii. 39, n. 
 
 should not sue for wages till vessel unladen, binding, if fairly made, ii.'40, n. 
 41, n. 
 
 stipulation that in whaling voyage seamen and officers shall receive propor- 
 tionate share, if sick, ii. 39, n„ 40, n. 
 
 stipulation as to spirituous liquors on whaling voyage, ii. 40, n. 
 
 stipulation contravening language or policy of statute, void, ii. 40. 
 
 clauses lessening rights of seamen to wages, etc., allowed some force in com- 
 mon law courts, none in admiralty, ii. 40, and n. 
 
 contracts of, the same as other, ii. 40, n. 
 
 in a divided voyage, clause that seamen should be entitled to no part of their 
 wages, if vessel lost before final port of discharge, void, ii. 40, n. 
 
 or until the ship arrived at the port of discharge in Philadelphia, ii. 40, n. 
 
 if special agreement fully explained, ii. 41, n. 
 
 that seamen should not demand their wages till expiration of twelve months, 
 ii. 41, n. 
 
 agreement to accept half pay, in case the vessel abroad, valid, ii. 41, n. 
 
 admiralty courts give no effect to receipt of sailor for his wages, unless actual 
 payment, ii. 40, 41. 
 
 a release of all complaint against officers of the vessel, signed in order to get 
 his wages, void, ii. 41. 
 
 stipulation as to payment of advance wages of, to boarding-house keeper, 
 void, ii. 41, n. 
 
 if sealed by mariners and not master, whether assumpsit will lie at common 
 law against them, ii. 42. 
 
 seals of no effect in admiralty, ii. 42.
 
 888 INDEX. 
 
 SEAMEN —Continued. 
 
 stipulation in, as to wages, conclusive, ii. 42. 
 
 nothing more can be recovered on special promise to pay for severe or extra 
 
 labor, ii. 42, 43. 
 purser's steward receiving a specific salary from the crown, cannot recover 
 
 wages of purser, ii. 42, n. 
 if one ship as cook, at the request of a captain in the navy, can recover above 
 
 government pay by agreement, ii. 42, n. 
 cook performing services, out of the line of his employment, can recover 
 
 additional pay, ii. 42, n. 
 if captain paints his own ship, ii. 42, n. 
 
 master may call on cook to do seaman's work while in port, ii. 42, n. 
 when crew are deceived, and ordered to load guano, they can recover extra 
 
 wages, ii. 42, n. 
 when wages of seamen, shipped during war, are diminished by declaration of 
 
 peace, ii. 42, n. 
 promise to divide the wages of the deserting crew among those remaining, 
 
 void, ii. 43, n. 
 and, if paid in such a case by master, owners might retain the amount from 
 
 subsequent wages, ii. 43, n. 
 if vessel becomes so short-handed at intermediate port as to be unseaworthy, a 
 
 note voluntarily given by captain for extra wages, valid, ii. 43, n. 
 captain stipulating for extra pay for himself, in addition to fixed price for the 
 
 vessel, and the government paying all to owner, cannot recover of owner, 
 
 ii. 43, n. 
 • promise of higher wages to a deserting seaman void, ii. 43, n. 
 
 eifect of transfer, to another vessel, of seamen to whom higher wages had been 
 
 promised, ii. 43, n. 
 promise of reward by a passenger not binding, ii. 43, n. 
 if one of crew consents to become a hostage under promise of wages, binding 
 
 on owners, ii. 43, n. 
 if seaman promoted, takes wages of his new ofiice, ii. 43. 
 if degraded for incapacity, cannot recover his advanced wages, but only sea- 
 man's wages, ii. 43. 
 mate succeeding to master's place on his death, entitled to extra wages, ii. 44, n. 
 whether he may sue in rem, doubtful, ii. 44, n. 
 
 accidental omissions in shipping articles may be supplied by parol, ii. 44. 
 if seamen sail without, entitled to what wages, ii. 44, 
 
 if signed and wages omitted, agreed wages may be shown by parol, ii. 44, n. 4. 
 if a seaman ship without signing, implied contract presumed binding to re- 
 main with ship till voyage ended, ii. 45, n. 
 interlineations, erasures, or alterations, presumed fraudulent, ii. 44, 45. 
 this not applicable to immaterial erasures, ii. 45, n. 
 usual rules of evidence and of construction apply to, ii. 45. 
 court of admiralty will construe liberally, ii. 45, n. 2. 
 but seaman may show by parol that statements were made to induce him to 
 
 sign, ii. 45. 
 as that voyage or time of service were not same as on the paper, ii. 45, 46, 
 
 and n. 
 or that voyages are distinct, ii. 46, n.
 
 INDEX. 889 
 
 SEAMED —Continued. 
 
 or to impeach a contract by showing it to be in violation of law, ii. 46, n. 
 or that the articles have been altered since they were subscribed, ii. 45, 46. 
 ship-owner cannot vary voyage by parol, ii. 46, n. 
 prima fade presumed true, ii. 46, n. 
 
 and owner must show fraud, etc., in order to contest, ii. 46, n. 
 stipulation in writing for a series of voyages may be varied by mutual con- 
 sent, ii. 46, n. 
 or new voyage substituted, ii. 46, n. 
 
 parol evidence of hiring may be introduced if articles not produced, ii. 46, n. 
 for a fishing voyage, must be countersigned by owners, ii. 46. 
 but seaman not restricted to signers for his wages, ii. 46. 
 if he brings his action on, he is, ii. 47, n. 
 master cannot bind owner to pay seamen three months' wages after voyage 
 
 ended, ii. 47. 
 if hired in a foreign country may bind him to what, ii. 47. 
 III. Wages, ii. 47-74. 
 
 contract between seaman and owner, or master as his agent, a contract of hir- 
 ing and service, ii. 47. 
 all that is implied by the law generally belongs to their contract, ii. 47. 
 modified by peculiar nature of statutes, ii. 47. 
 seamen hired and payment promised in four ways, ii. 47. 
 
 for certain voyage, and to receive certain proportion of freight earned, 
 
 ii. 47. 
 for a certain voyage or by the run, and to be paid a round sum at the 
 
 close, ii. 47. 
 on shares, ii. 48. 
 
 mostly confined to whaling, fishing, and coasting voyages, ii. 48. 
 , contract one of hiring, and not of partnership, ii. 48, n. 
 master's lien on seamen's lay for clothing, ii. 48, n. 
 not personally responsible for wages of seamen, when vessel is lost, and 
 
 cargo .sent home, ii. 48, n. 
 acts as agent of owner and not of crew, ii. 49, n. 
 for a definite voyage, or voyages, or a definite period on monthly wages, ii. 49. 
 whether contract for entire voyage at so much per month, or for so long as 
 party remains on board, giving cause of action at end of each month, ii. 49, 
 n. 2. 
 female serving in any capacity entitled to all rights as seamen, ii. 49. 
 and subject to all disabilities, ii. 49. 
 
 seamen on board privateer, disabled by sickness, not entitled to any share in 
 prizes, ii. 49. 
 
 so in ordinary case of merchant ship, ii. 49, 50. 
 if voyage is broken up, or seamen dismissed without cause before voyage be- 
 gins, to have wages for time of service and special compensation, ii. 50. 
 penalty for discharging seaman at foreign port, against his consent and without 
 good cause, ii. 50. 
 
 the three distinct oflTences in § 10, act, 1825, c. 25, relating to leaving 
 
 officers or mariners in foreign port against their will, ii. 50, n. 2. 
 "maliciously" means what in the act, ii. 50, n. 2. 
 seamen so discharged may recover what, ii. 50.
 
 890 INDEX 
 
 S'EAMEl^ —Continued. 
 
 wages up to successful termination of the voyage, ii. 50, n. 3. 
 return of seaman to country where he was originally shipped, ii. 50, 
 n. 3. 
 compensation intended to be a complete indemnity for illegal discharge, 
 ii. 51, n. 
 
 how measured, ii. 51, n. 
 when neither of the above rules as to wages applicable, ii. 51, n. 
 wages earned on homeward voyage, deducted from expenses of return, ii. 51, n. 
 but when mate comes home before the mast not, ii. 51, n. 
 seaman discharged from privateer unlawfully, entitled to his proportion of 
 
 prizes taken in his absence, ii. 51, n. 
 breach of statute subjecting master to penalty does not destroy a seaman's 
 
 right of action who is injured thereby, ii. 51, n. 
 if voyage is broken up by misfortune, crew entitled to their wages, ii. 51, 52. 
 so if absent from vessel without fault of their own, ii. 52, n. 
 or if compelled to desert by reason of cruelty, ii. 52. 
 officer discharged in foreign port by consul on account of illegal usage 
 
 by captain, entitled to what, ii. 52. 
 if disrated, entitled to wages of lower station, ii. 52. 
 if promoted, entitled to wages of higher, ii. 53. 
 so if master dies and mate takes his place, ii. 53. 
 seaman entitled to whole of wages though disabled by sickness, ii. 53. 
 even if left at foreign port on account thereof, ii. 53. 
 otherwise, if he recovers and does not join ship, ii. 54. 
 or sickness is caused by his own fault, ii. 54. 
 master cannot deduct from wages of colored seaman expenses of imprisonment 
 
 in Southern port, ii. 54. 
 whether seaman can claim full wages from time of illegal discharge, if he has 
 earned other, intermediatelj', ii. 54, and n. 4. 
 
 whether wages are due to end of voyage or to time required for seamen 
 
 to reach home, ii. 55. 
 the question discussed, ii. 55. 
 if discharged with consent in foreign port, pro rata due, ii. 55. 
 if discharged otherwise, no defence that extra wages were paid consul if sea- 
 men did not have the benefit of them, ii. 56. 
 consul has no right to charge commission for witnessing settlement, ii. 56. 
 naming of libellant in master's list entitles him to recover, though name omit- 
 ted on collector's list, ii. 56. 
 no difficulty in recovering wages in admiralty, ii. 56, 57. 
 owner bound by contract of master for services to be paid by shares, ii. 57. 
 
 seaman contracting for wages not held by signature fraudulently ob- 
 tained to agreement to take shares instead, ii. 57. 
 such contract does not constitute partnership, ii. 57, n. 4. 
 either at common law or in admiralty, ii. 57, n. 4. 
 owners liable in tort for taking minor against will of guardian, ii. 57. 
 or parent may sue in contract, ii. 57. 
 can only recover on quantum meruit, ii. 57, 58. 
 seaman shipping on whaling voyage at foreign port entitled to proportionate 
 part of lay for whole voyage, ii. 58, n. 2.
 
 INDEX. 891 
 
 SEAMEN — Continued. 
 
 change of risk of voyage, as from time of war to peace does not diminish wages, 
 ii. 58, n. 3. 
 
 if seaman on monthly wages dies during voyage, wages due his representatives 
 to time of death, ii. 58, n. 4. 
 
 uncertain whether they are due to the end of voyage, ii. 58, n. 4. 
 opinion that they are not, ii. 58. 
 
 bargain for wages for illegal services void, ii. 58, 59. 
 as for serving in slave-trade, ii. 59, n. 2. 
 or unauthorized expedition in breach of neutrality laws, ii. 59, n. 3. 
 
 so action will not lie by pilot for services rendered to vessel of enemy, ii. 59, n. 4. 
 
 otherwise if nature of service is unknown to person rendering, ii. 59, n. 5. 
 
 owner's liability for wages not ended by abandonment, ii. 59, n. 6. 
 or any transfer to third parties, ii. 59, n. 7. 
 
 lien for, attaches to ship and freight, ii. 59, 60. 
 
 and follows them into whose hands soever they may go, ii. 60. 
 
 and remains if fund from which they should be paid is in part lost, 
 ii. 60, n. 2. 
 
 crew of neutral vessel seized and condemned for carrying contraband of war, 
 have none, ii. 60, n. 3. 
 
 but if vessel is after seizure restored and compensation made for freight, lien 
 revives, ii. 60, n. 4. 
 
 sale does not avoid, ii. 60, 61, n. 
 
 cannot be enforced while vessel is in custody of officer of State court, ii. 61, 
 62, and n. 
 
 where seaman is part-owner and vessel is sold on execution against owners, 
 lien as part-owner no longer exists, ii. 62, n. 2. 
 
 lien prevails over bottomry bond, ii. 62. 
 
 in England lien on foreign vessel for collision takes precedence of lien of sea- 
 men, ii. 62, n. 5. 
 
 not lost by taking an order on owner or charterer for, ii. 62, n. 6. 
 
 or by taking master's non-negotiable note, ii. 62, n. 7. 
 
 nor receiving negotiable note for, except, ii. 62, n. 
 
 receipt in full, prima facie evidence, ii. 63. 
 
 fishermen on shares have lien by statute for, ii. 63, n. 2. 
 
 if vessel is forfeited, lien of wages of seamen ignorant of illegality of voyage 
 take precedence of claim of government, ii. 63, n. 3. 
 
 seamen on letter-of-marque have, ii. 63. 
 
 otherwise on board public ships-of-war, ii. 63, n. 5. 
 
 whether post-office packet, or vessel in employ of government may be ar- 
 rested for, ii. 63, n. 6. 
 
 embargo does not suspend right to wages, if voyage is completed, or new one 
 substituted, ii. 63. 
 
 otherwise, if never remitted, ii. 63. 
 
 so of detention by seizure, ii. 63. 
 
 and in recapture, ii. 64 
 
 but salvage in such case is deducted, ii. 64. 
 
 and allowance for ransom, ii. 64. 
 
 and other wages earned, ii. 64. 
 
 neutral, impressed, and never rejoining ship, has only pro rata wages, ii. 64.
 
 892 INDEX. 
 
 SEAME'N —Continued. 
 
 seaman sent home as witness entitled to wages only to time of leaving, 
 
 ii. 64, 65. 
 although not in fault, ii. 65. 
 leaving vessel at time of collision, entitled only to time of leaving, ii. 65. 
 
 unless return was prevented by fault of ship, ii. 65. 
 if ship is lost before completion of voyage, due to last port of delivery, ii. 65. 
 or last port of arrival, ii. 65. 
 and for half the time she lies therein, ii. 65. 
 port of destination, port of delivery as regards wages, ii. 65. 
 no special contract between owner and freighter affects, ii. 66. 
 but wages may not be earned till arrival at final port of destination, ii. 66. 
 if ship is lost on outward voyage, freight paid partly in advance which cannot 
 
 be recovered, wages in proportion to freight paid, due, ii. 67. 
 seamen cannot insure wages, ii. 67. 
 
 nor derive benefit from insurance by owner on freight or ship, ii. 67. 
 nor by recovery of damages by collision, ii. 67. 
 advance wages, absolute property of seamen, ii. 67. 
 and lost by owner whether subsequent wages are earned or not, ii. 67. 
 seamen bound to save wreck, if possible, ii. 67. 
 and also cargo, ii. 67. 
 
 and if enough is saved, entitled to wages, ii. 67, 68. 
 whether compensation is wages or salvage, ii. 68 - 70. 
 
 as affecting maxim that " freight is mother of wages," ii. 68. 
 right of compensation an exception thereto, ii. 68 - 70. 
 master and seamen of ship bringing home remains of wreck, have lien for 
 
 freight, ii. 71. 
 but not for passage-money of seamen, ii. 71. 
 
 no wages due at law, if vessel, unseaworthy from beginning, is abandoned be- 
 fore freight is earned, ii. 71. 
 but otherwise in admiralty, ii. 71. 
 and doubtful in law, ii. 71. 
 owner of slave may sue for wages, ii. 71. 
 so master of apprentice, ii. 71. 
 
 master, owner, or crew, not responsible for escape of slave on voyage, ii. 71. 
 unless assisting escape, ii. 71. 
 
 seamen may be witnesses for each other in suits for wages, ii. 71, 72. 
 master an incompetent witness for owner, in suit against him, or ship, for 
 
 wages, ii. 72. 
 and incompetent, if party to suit, ii. 73. 
 or if putting in claim or answering libel, ii. 73. 
 
 and cannot testify to matter of defence originating in own act, ii. 73. 
 but a competent witness in behalf of seamen, ii. 73. 
 charges against seamen on shipping papers to be verified by him on oath, 
 
 ii. 73. 
 interest does not now disqualify a witness, ii. 73. 
 on whaling voyage, owners have no right to charge commission for settling 
 
 voyage, ii. 73. 
 nor for expenses of preparing ship for sea, ii. 73. 
 nor for money paid shipping agent as bounty for hiring them, ii. 73.
 
 INDEX. ■ 893 
 
 SEAMEN —Continued. 
 
 nor for insurance on proceeds of voyage held as security for advances, ii. 73, 74. 
 nor for guarantee commission on sales of oil, ii. 74. 
 if discharged abroad, entitled to settlement at home prices, ii. 74. 
 and on a cash basis, ii. 74. 
 owner cannot charge for casks, ii. 74. 
 
 if part-owner sue for lay as master, other owners entitled to deduct payments 
 made with his consent, and not wait for final settlement of partnership 
 accounts, ii. 74. 
 what constitutes assignment of, ii. 74. 
 
 assignment to secure advances already made, irrevocable, ii. 74. 
 legal tender act as influencing, ii. 74, 75, and note. 
 See Suits in Admiralty, II. ii. 364 - 369. 
 IV. Provisions, ii. lb -11. 
 
 to be furnished by owner, and kind, ii. 75. 
 
 custom from earliest time, ii. 75, n. 
 
 quantity for each day prescribed by statute, ii. 75, 76. 
 
 penalty for short allowance, ii. 76. 
 
 if shipped at foreign port, same, ii. 76. 
 
 if necessity for short allowance by peril of sea, accident, or to help others in 
 
 distress, extra wages not given, ii. 76. 
 for seamen to recover extra wages on account of short allowance, what must 
 
 be shown, ii. 76, n. 5. 
 if part of provisions spoil after sailing with requisite amount, ii. 76, n. 5. 
 ship-owner must show that ship sailed with requisite amount, ii. 76, n. 5, 
 
 77, n. 
 but when need not give evidence of quantity and quality, ii. 77, n. 
 deficiency in one kind not compensated by abundance in another, ii. 77, 
 
 and n. 
 discretion of the master in port in providing, when those specified in the act 
 
 cannot be obtained, ii. 77. 
 the substituted must be fully equivalent, ii. 77, n. 3. 
 ■expenditure of, master must see to, ii. 77. 
 and guard against waste, ii. 77. 
 
 putting on allowance not same as putting on short allowance, ii. 77. 
 what short allowance is, determined by navy ration, ii. 77, n. 5. 
 what necessary, to subject master or owner to extra wages for short allowance, 
 
 ii. 77, n. 5, 78, n. 
 if extra wages claimed, answer must set forth what, ii. 78, n. 
 desertion, for want of provisions, justified, ii. 98, 99. 
 V. Seaworthiness of the Ship, ii. 78, 79. See also Carriage of Goods, I. ; 
 Charter-Party, II. ; and Seaworthiness. 
 seaworthy ship to be provided by owner, ii. 78. 
 held in England no implied warranty, ii. 78, n. 
 contrary American doctrine, ii. 78, n. 
 
 if vessel's condition known to seamen when they shipped, ii. 78, n. 
 seamen's claim for wages if voyage abandoned for unseaworthiness, ii. 78, n. 
 means of ascertaining provided by statute, ii. 78. 
 survey of ship to determine seaworthiness, ii. 78, n. 2. 
 complaint made by mate and majority of crew, ii. 78, n. 2, 79, n.
 
 894 INDEX. 
 
 SEAMEN — Continued. 
 
 law applies to vessel leaving foreign port for home, ii. 79, n. 
 
 two persons appointed by consul to inspect ship, ii. 79, n. 
 
 if complaint well founded, master to pay costs, ii. 79. 
 
 if not, costs and a reasonable sum for detention from wages of crew, ii. 79. 
 
 certificate thereof to be made by the inspectors, ii. 79, n. 
 
 if seamen refuse to proceed, on ground that ship is not seaworthy, and she 
 
 proves to be so, punishment for such mutiny mitigated, ii. 79. 
 if reasonable cause to believe ship not, seamen may lawfully refuse to go to 
 
 sea in her, ii. 79, n. 2. 
 that she is, presumption, ii. 79, n. 2. 
 what seamen must prove to justify refusal, ii. 79, n. 2. 
 that she is not, "sufficient defence to charge of revolt, by compelling master to 
 
 return to port, ii. 79, n. 2. 
 desertion for unseaworthiness, justified, ii. 98, 99, 
 VI. Care of Seamen in Sickness, ii. 80-83. 
 sickness provided for by statute, ii. 80. 
 when medicine chest required, ii. 80. 
 deduction from seamen's wages for support of marine hospital, ii. 80. 
 
 this provision extends to boats, rafts, or flats on Mississippi 
 
 River, ii. 80, n. 3. 
 and to fishing and whaling vessels, ii. 80, n. 3. 
 by law merchant, ship-owner and master must provide for sick, wounded, or 
 
 maimed seamen, ii. 80, 81. 
 when and what must be provided, ii. 81. 
 
 what expenses seamen entitled to, if injured on duty, ii. 81, n. 2. 
 owners not liable for consequential damages, ii. 81, n. 2. 
 only for expenses while in their employ, ii. 81, n. 2. 
 if injured in service of ship, ii. 81, n. 2. 
 if injury received for executing an improper order, or wrongful violence of an 
 
 oflBcer, ii. 81, n. 2. 
 whether requirement of medicine chest is a substitute for general requirements 
 
 of law merchant, ii. 81, 82. 
 when attendance of physician charge on owners, ii. 82, n. 
 cases requiring extraordinary assistance and surgical aid, ii. 82, n. 
 mariners whose feet were frozen and partial amputation necessary, recovered 
 
 what, ii. 82, n. 
 charge for nursing and attendance not aff'ected by the statute, ii. 82, n. 
 burden of proof as to sufficiency of medicine chest, on owner, ii. 82, n. 
 captain not a proper person to prove sufficiency, ii. 82, n. 
 effect of usage, that such seamen paid their own expenses in sickness, ii. 
 
 83, n. 
 when expenses of being taken on shore for better medical treatment, or having 
 
 a physician from the shore, belong to seamen, ii. 83, and n. 
 right of care extends to officers of ship and master, ii. 83. 
 owner liable for board, physicians' bills, and funeral expenses of a master paid 
 
 by consignee, when, ii. 83, n. 2. 
 if seaman put on shore for medical treatment for safety of crew, expense falls 
 
 on ship, ii. 83, n. 
 if at his request it seems not, ii. 83, n. 3.
 
 INDEX. 
 
 895 
 
 SEAMEN — Continued. 
 
 if asked to elect when sick with yellow fever, entitled to full wages, because 
 master's duty to send him ashore, ii. 83, n. 3. 
 VII. Of the Return of Seamen to this Codntkt, ii. 84-88. 
 right to be brought back jealously guarded, ii. 84. 
 
 shipping articles and shipping list under oath of master necessary, ii. 84. 
 when obliged to present them to consul, etc., at every foreign port, ii. 84, 
 
 and n. 2. 
 must give bond to deliver to boarding officer persons therein named, ii. 84. 
 if any missing, must account therefor, ii. 84. 
 bond not forfeited, if seamen properly discharged, or died, or absconded or 
 
 impressed, ii. 84, n. 4. 
 what certificate of consul must state, as to absence, ii. 84, n. 4. 
 if seamen discharged at foreign port by master's or their own consent, what 
 
 master must pay over and above wages to consul or agent, ii. 84. 
 in what proportion, and how paid, ii. 84. 
 
 if seamen is left in foreign port, and vessel afterwards sold, whether he can re- 
 cover extra wages, ii. 84, n. 5, 85, n. 
 when consul may discharge seaman without reqxiiring payment of three 
 
 months' wages, ii. 85, n. 
 consul's cfertificate that seaman's discharge was by his consent, conclusive 
 
 ii. 85, n. 
 not enough to certify that he discharged him " lawfully," ii. 85, n. 
 or " in accordance with the law of the United States," ii. 85, n. 
 what it must set forth, ii. 85, n. 
 signature must be legible, ii. 85, n. 
 
 seal must allow vignette and motto to be distinguished, ii. 85, n. 
 and to avail owner in suit against him for wages, what must appear, ii. 85, n. 
 if vessel sold, seamen entitled to wages up to sale, ii. 85, n. 
 if consul neglects to require and collect the amount, answerable to United 
 
 States and to seamen for their wages, ii. 85, n. 
 if discharge caused by disaster, and voyage thereby broken up, requirement 
 
 above not applicable, ii. 85. 
 so provided by statute, where vessel wrecked, stranded, or condemned as unfit, 
 
 ii. 85, 86, n. 
 ship must be repaired, and seamen may hold on for reasonable time, ii. 86. 
 if condemned in foreign port, as unseaworthy, and sold, seamen entitled to 
 
 extra wages, ii. 86, n. 2. 
 reasons for such decision, ii. 86, n. 2. 
 if ship captured, all proper means must be used to regain her, and seamen 
 
 may wait, ii. 86. 
 if discharged before, may claim extra wages, ii. 86. 
 what grounds sufficient to authorize discharge by consul, ii. 86. 
 to justify a master for not producing a seaman, how the discharge must have 
 
 been made, ii. 86, n. 4. 
 degree of misconduct justifying master in putting an end to contract with 
 
 seamen, ii. 86, n. 4, 87, n. 
 not for slight or venial offence, ii. 87, n. 
 nor for a single offence, ii. 87, n. 
 but for incorrigible disobedience and refusal to do duty, ii. 87, n.
 
 896 INDEX. 
 
 SEAMEN — Continued. 
 
 or mutinous and rebellious conduct, ii. 87, n. 
 
 or gross dishonesty, embezzlement, or theft, ii. 87, n. 
 
 or if he is an habitual drunkard or stirrer up of broils, ii. 87, n. 
 
 or conducts himself improperly towards a passenger, ii. 87, n. 
 
 or if, by his own fault, he renders himself incapable of doing duty, ii. 87, n. 
 
 if sent home for a crime, he can recover no wages after, ii. 87, n. 
 
 so if sent home by consul, ii. 87, n. 
 
 seaman may be discharged by consul (and then entitled to three months' 
 
 wages) if vessel is unseaworthy, or if master violates shipping articles, or 
 
 crtielly punishes seamen, ii. 87. 
 even if sailor deserted, for this cruelty, ii. 87. 
 refusing to bring home destitute seamen, penalty, ii. 87, n. 4. 
 action for, must be brought in name of government, ii. 87, n. 4. 
 foreigners, while employed in American vessels, entitled to benefit of the act, 
 
 ii. 87, n. 4. 
 consul may require American ship to take home deserter, if destitute, ii. 87, n. 4. 
 consul's certificate, prima facie evidence of what, ii. 87, n. 4. 
 consul may send home our seamen in our ships, which are bound to take 
 
 them, ii. 87. 
 at what price, ii. 87. 
 duty of seamen so sent, ii. 87. 
 
 penalty for discharging seaman at a foreign port against his consent and with- 
 out good cause, ii. 87, 88. 
 seaman so discharged may recover what, ii. 88. 
 VIII. Disobedience of Seamen, ii. 88 - 97. 
 
 disobedience or misconduct punishable with severity, ii. 88. 
 
 necessity therefor, ii. 88. 
 
 general orders from one ofiScer no excuse for disobedience to specific orders of 
 
 another, ii. 88, n. 2. 
 hammer improper instrument to strike seamen with, ii. 88, n. 3. 
 what no excuse for its use, ii. 88, n. 3. 
 so a sword, ii. 88, n. 3. 
 but a bucket of water not, ii. 88, n. 3. 
 a blow with a frying-pan, or wiping a dirty knife on the face of one whose duty 
 
 it is to keep them clean, not an aggravated assault, ii. 88, n. 3. 
 a belaying-pin, or log of wood, improper instrument, ii. 88, n. 3. 
 whether instrument used dangerous, question for jury, ii. 88, n. 3. 
 incapacity to perform duties no excuse for, ii. 88, 89, n. 
 right of punishment formerly not specifically limited, ii. 89. 
 administered by master in any form, ii. 89. 
 for excess or cruelty, master answerable criminally and civilly in damages to 
 
 seaman, ii. 89. 
 government must prove the beating, the want of justifiable cause, and malice, 
 
 ii. 89, n. 2. 
 though flogging now abolished, not a cruel or unusual punishment under act 
 
 of 1835, ii. 89, n. 2. 
 when seamen may recover damages of a master for an assault, ii. 89, n. 3. 
 if mate, in obedience to master's orders, assists in punishing a seaman, not 
 
 answerable as joint trespasser, ii. 89.
 
 INDEX. 897 
 
 SEAMEN — Continued. 
 
 seamen's right to protection of master against illegal violence of other officers, 
 
 ii. 90. 
 master's duty to hear complaints and prevent repetition, ii. 90. 
 for refusal so to do, and for such illegal treatment, seamen entitled to discharge 
 
 when ship in port, ii. 90. 
 for past offence, only highest officer can punish, ii. 90. 
 flogging abolished by act of Congress of 1850, ii. 90. 
 
 vessels of commerce under that law include what, ii. 90, n. 5. 
 
 this not a penal law, ii. 90, n. 5. 
 
 what included in the law, ii. 90. 
 
 blow with the hand, or stick, or rope, not necessarily included, ii. 90. 
 
 punishment by, not justifiable under, ii. 90, n. 6. 
 
 what flogging is, ii. 90, n. 6. 
 
 degree of severity not material, ii. 91, n. 
 
 statute intended to apply to deliberate and not sudden blow to produce 
 
 immediate obedience, ii. 91. 
 officer may use violence in an exigency requiring instant obedience, 
 ii. 91, n. 2. 
 punishments which may be resorted to now : 
 forfeiture of wages and irons, ii. 91. 
 imprisonment, ii. 91. 
 
 master may imprison on shore, when, ii. 91, n. 5. 
 
 imprisonment in foreign jails, of doubtful legality, ii. 92, n. 
 
 when only justifiable, ii. 92, n. 
 
 measure of safety and not discipline ; never used for past misconduct, 
 
 ii. 92, n. 
 duty of master when necessary to resort to it, ii. 92, n. 
 if by authorities of foreign place for violation of its laws, costs and 
 
 charges deducted from seamen's wages, ii. 92, n. 
 if by master, neither these nor pay for hire of another seaman deducted, 
 
 ii. 92, n. 
 certificate of consul not evidence nor justification for master, ii. 92, n. 
 court may examine de novo and determine whether justifiable, ii. 92, n. 
 duty of consul as to deserters, etc., ii. 92, n., 93, n. 
 if consul calls on local authorities, master not responsible for imprison- 
 ment of seaman, ii. 93, n. 
 if consul absent, his assistant has no authority to do so, ii. 93, n. 
 and if master imprison, he responsible, ii. 93, n. 
 hard labor, ii. 91, 92. 
 
 what master must prove, to justify this punishment, ii. 92, n. 
 offences for which forfeiture of wages imposed, ii. 92, 93. 
 a trivial act of irregularity not sufficient, ii. 93. 
 misconduct, such as to endanger safety of ship and due preservation of 
 
 discipline, ii. 93, n. 
 disobedience must be of what nature, ii. 93, n. 
 intemperance must be habitual, ii. 93. 
 
 violence upon person of master on his own vessel not trivial, ii. 93, 94. 
 1 misconduct of officer more serious than misconduct of seaman, ii. 94. 
 
 neglect of seamanship does not forfeit master's wages, ii. 94.' 
 VOL. II. 57
 
 898 INDEX. 
 
 SEAMEN — Continued. 
 
 smuggling of goods by master or seamen sufficient, ii. 94. 
 
 or owners may charge damage actually sustained upon their wages, ii. 94. 
 
 embezzlement by master or crew also works forfeiture, ii. 94. 
 
 how far seamen liable, if embezzlement has taken place, but the party 
 
 embezzling not known ; principle of contribution, ii. 94, n. 
 whether certain seamen, who could not have been guilty, liable to con- 
 tribute, ii. 94, n. 
 when the loss must be borne exclusively by the owners or master, 
 
 ii. 95, n. 
 not embezzlement for seamen to sell part of cargo by mate's direction, 
 
 ii. 95, n, 
 crew not liable for escape of slave who enters on board as seaman, 
 
 ii. 95, n. 
 in England whole wages forfeited, or none, ii. 94, 95. 
 here part may be forfeited, ii. 95. 
 only wages earned before misconduct forfeited, ii. 95. 
 if mate promoted and while master commit an offence, wages earned as 
 
 mate not forfeited, ii. 95. 
 if seaman repents and offers to return to duty, master should receive 
 
 him, ii. 95. 
 and if he does so, this is condonation of offence, ii. 95, 96. 
 forfeiture considered remitted, if seaman severely punished, ii. 96, and n. 
 master's power to degrade, limited, ii. 96. 
 
 cannot degrade to lowest station if person is competent to fill interme- 
 diate one, ii. 96, 97. 
 officer promoted may be sent back for less offence than one not, ii. 97. 
 no right to order officer to do seaman's duty unless, ii. 97. 
 IX. Of the Desertion of Seamen, ii. 97- 105. 
 of great importance to prevent, ii. 97. 
 distinguished from absence without leave, ii. 97. 
 going on shore without leave to seek advice as to effect of articles not, ii. 97, 
 
 n. 5. 
 fullest liberty to go before consul to lay complaints, ii. 97, n. 5, 98, n. 
 extends to what complaints, ii. 98, n. 
 have no right to refuse to do duty, to see consul, ii. 98, n. 
 discretion of master as to time and mode of landing, ii. 98, n. 
 when refusal to return after temporary separation is desertion, ii. 97, 98. 
 justified when voyage changed without consent, ii. 98. 
 
 but crew not justified in such case in seizing vessel and bringing her 
 home, ii. 98, n. 4. 
 justified for cruelty, ii. 98. 
 
 but a battery simply because excessive, not, ii. 97, n. 5. 
 what seaman must show to justify in such case, ii. 97, n. 5. 
 justified by insufficient provisions, ii. 98, n., 99. 
 if no provisions, clear, ii. 99, n. 
 if for bad provisions, what must be shown, ii. 99, n. 
 justified for unseaworthiness of ship, ii. 99, and n. 2. 
 
 if justification is that deserter is a negro, and captain threatened to sell him as 
 'slave, what must be averred, ii. 99.
 
 INDEX. 899 
 
 SEAMEN —Continued. 
 
 return after, by seaman and acceptance by master or owner, condonation of 
 
 offence and waiver of forfeiture, ii. 99. 
 though clause to the contrary in articles, ii. 99. 
 how and when he must be received, ii. 99. 
 
 desertion by not rendering himself on board before voyage begins, what for- 
 feiture, ii. 99, 100, and n. 
 may be compelled to go on board under warrant of justice, ii. 100. 
 justices of peace alone power to try and commit deserting seamen, ii. 100, 
 
 n. 2. 
 United States commissioner's power to arrest and commit for trial, 
 
 ii. 100, n. 2. 
 if forced on board, forfeiture waived, ii. 100. 
 receiving seaman on board, no waiver of penalty, ii. 100. 
 desertion on voyage, he may be apprehended, ii. 100. 
 
 if voyage broken up by disaster while seaman is imprisoned, he must be 
 
 discharged, ii. 100, n. 2. 
 for such desertion forfeits what, ii. 100. 
 
 and becomes liable for all damages and costs of owner in hiring an- 
 other, ii. 100. 
 statute provision in regard to forfeiture of wages for, ii. 100, n., 101, n. 
 court not bound to pronounce entire forfeiture, ii. 101, n. 
 desertion after majority, by one shipped by his father during minority, father 
 
 entitled to wages up to majority, ii. 101, n. 
 if minor ships after death of his father, he may avoid contract by desertion, 
 
 and recover on quantum meruit, ii. 101, n. 
 desertion on one voyage, no forfeiture of wages earned on a prior voyage, 
 
 ii. 101, n. 
 how defined by statute ; and construction of statute, ii. 101 - 104, and notes. 
 statute does not supersede maritime law, ii. 102, n. 
 if seaman remains more than forty-eight hours without leave ; seeking 
 
 redress before a tribunal, not, ii. 101, n. 
 must be an exact entry of fact of, on log-book made on day the 
 
 absence begins, ii. 103. 
 what entry must state, ii. 103, n. 
 entry on day, a sine qua non, ii. 103, n. 
 the entries, " they ran away," and afterwards " absent without leave," 
 
 ii. 103, n. 
 entry necessary, though absence permanent, ii. 104, n. 
 not conclusive ; parol admissible to falsify it, ii. 104, n. 
 whether desertion, if ship sails before forty-eight hours expired, and 
 
 seamen unable to return, ii. 104, n. 
 intent of seaman at time of, ii. 104, n. 
 seaman leaves at his own peril, ii. 104, n. 
 ship not bound to wait for him, ii. 104, n. 
 if return prevented by captain, no forfeiture, ii. 104, n. 
 attempt to return at night by deserter without saying who he is or what 
 
 he wants, no return to remit forfeiture, ii. 104, n. 
 so if he return, but refuses to do duty, ii. 104, n. 
 return must be unconditional, ii. 104, n.
 
 900 INDEX. 
 
 SEAMEN — Continued. 
 
 must be continued absence of forty-eight successive hours, ii. 103, 104. 
 absence although not within statute definition may be an offence, and seaman 
 
 liable, ii. 104. 
 master's power to retake person and confine him on shipboard in home port, 
 
 ii. 104, n., 105, n. 
 desertion before vessel moored at end of voyage, is within the statute, 
 
 ii. 104, 105. 
 but, if after mooring, it is not a desertion under the law merchant, ii. 105. 
 yet ship-owners have claim for compensation in damages, ii. 105. 
 of part of tlie crew, no release of remainder from performing their duty, 
 
 though more onerous, ii. 105. ■• 
 
 no justification that seamen were obliged to work on Sunday, ii. 105. 
 X. In other Respects : 
 
 liability of part-owners for torts of, i. 106, 107. 
 liability of ship's husband for wages of, i. 111. 
 quarters and accommodations of, on board vessels, i. 278, n., 298. 
 duty of master, as to consultation with, i. 409 - 411. 
 hired by master, ii. 11. 
 
 shipment of minor as, without parents' consent, ii. 11, n. I, 26, n. 4. 
 SEAWORTHINESS, ii. 78, 79. See Seamen, V. 
 sale of ship for want of, i. 75. 
 duties of ship's husband, as to, i. 109. 
 
 undertaking of ship-owner, as to. See Carriage of Goods, I. 
 whether condition precedent to payment of charter-money, i. 285, 320. 
 damages for unseaworthiness, i. 285. 
 for particular voyage suflRcient, i. 285, n. 3. 
 
 duty of owners to keep ship seaworthy ; and of charterers to remain in her so 
 long as she can be kept so, i. 309. 
 SEIZURE, by foreigner, when vessel cannot be registered after, i. 36. 
 
 of ship and cargo for breach of blockade in, how far act of master in attempt- 
 ing to enter, act of owner of cargo, ii. 22.. 
 SEIZURE, Admiralty Jurisdiction over, ii. 218-222. 
 
 district court, the primary coUrt of revenue, ii. 218-222. 
 
 and has jurisdiction in all cases of seizure under United States statutes, 
 
 concerning imposts, navigation, and trade, ii. 218. 
 may entertain all suits for condemnation, ii. 218. 
 and for acquittal of property seized, ii. 218. 
 may decree restoration, ii. 218. 
 
 jurisdiction derived from act and place of seizure for forfeiture, ii. 218. 
 and if once acquired, not lost by subsequent irregularity, ii. 218. 
 court of district where made, has exclusive cognizance thereof, ii. 219. 
 and property will be remanded, if removed, ii. 219. 
 if upon high seas, the court of district where first carried, ii. 219. 
 so, if within foreign government, ii. 219. 
 if on land, proceedings according to common law, ii. 219. 
 district courts, courts of common law and admiralty jurisdiction, ii. 219, n. 6. 
 and these jurisdictions cannot be blended, ii. 219. 
 
 if on waters navigable from sea for vessels above ten tons, proceedings accord- 
 ing to admiralty, ii. 220, 221.
 
 INDEX. 901 
 
 SEIZURE —Continued. 
 
 libel charging, as made on water, if made on land, bad, ii. 221. 
 
 district court cannot enforce lien for duties by information in admiralty, 
 ii. 221. 
 
 but an action at law may be maintained therefor, ii. 221. 
 
 or to recover damages for illegal taking of goods, ii. 221, 222. 
 
 no courts, except those established by Congress and in conformity to the Con- 
 stitution, may entertain admiralty jurisdiction, ii. 202. 
 
 this limitation does not extend to Territories, ii. 202. 
 
 act of Territory may create court with authority to entertain jurisdiction over 
 salvage, ii. 203. 
 
 See Supreme Court, ii. 191-193; Circuit Court, ii. 193-196; District Court, 
 ii. 196-203; Appeals, ii. 204-217. 
 SET OFFS AND CROSS LIBELS, ii. 433, 434. 
 
 respondent may avail of, in answer, ii. 433. 
 
 no jurisdiction in admiralty over separate, ii, 433. 
 
 loss from gross neglect of mariner may be, to demand for wages, ii. 433. 
 
 damage to goods, from freight, ii. 433. 
 
 and freight, from damage, ii. 433. 
 
 founded on contract, no defence to libel in case of damage, ii. 433. 
 
 necessaries furnished to minor, from damages for abduction, ii. 433, 434. 
 
 if more than amount sued, no action for balance lies, ii. 434. 
 
 but cross libel more usual in such case, ii. 434. 
 
 and execution in first will be stayed, ii. 434. 
 
 after filing cross libel, process to be served in usual manner, ii. 434. 
 
 agreement that answer should operate as such, irregular, ii. 434. 
 SHARES, hiring of vessel upon, i. 281, 282. 
 
 rights and liabilities of owners, when the master hires a vessel on shares, 
 i. 301, 302. 
 
 hiring of sailors upon, ii. 57. 
 SHEATH-KNIVES, seamen prohibited from wearing, ii. 33. 
 SHEPPARD, i. 5. 
 " SHIP." See Sale of Ship. 
 
 what the word includes, in sale, i. 78. 
 
 "ship and owners," credit given to, i. 103. 
 
 use of ship by owners. See Carriage of Goods ; Collision. 
 
 letting of. See Charter-Party. 
 
 part-ownership in, and partnership in cargo, i. 91, 108, n. 
 
 importance of, and public policy respecting, i. 170. 
 
 to be properly manned, i. 171. 
 
 contributory value of, in general average, i. 422 -427. 
 SHIP BROKER has lien on vessel for obtaining crew, ii. 189. 
 SHIPBUILDER. See Builder. 
 SHIP CHANDLER has lien for materials furnished, under Pennsylvania statutes, 
 
 ii. 148. 
 SHIP-OWNERS. See Admiralty Jurisprudence, ii. 236 - 246. 
 SHIPPING ARTICLES, ii. 34 - 47. See Seamen, IL 
 SHIPPING LIST, ii. 44, 45. 
 
 SHIP'S HUSBAND, i. 109 - 114. See Part-Owners, VL 
 SHIP'S PAPERS, duties of ship's husband as to, i. 109.
 
 902 
 
 INDEX. 
 
 " SHUT PORT," meaning of, i. 327. 
 
 SICKNESS, care of seamen in, ii. 80 - 83. See Seamen, VI. 
 
 SIGNATURE and seal must be distinct and legible to secure official respect, 
 
 ii. 85, n. 
 SLAVES, master of, may sue for wages, ii. 71. 
 
 escape of, during voyage, ii. 71. 
 SMUGGLING, sale of ship, by order of court, for, i. 74. 
 
 by master or crew, ii. 94. 
 SPECIAL CONTRACTS, no limitation as to, between ship-owner and shipper. 
 
 See Limitation of Liability of Ship's Owners, ii. 121. 
 SPOLIATION OF PAPERS, ii. 477. 
 STATE STATUTES. See Statutes. 
 
 courts, jurisdiction of, and of the United States courts in questions of pilotage, 
 ii. 106, 107. 
 
 laws, as to lien of material man, ii. 142 - 144, 146 - 154. 
 STATUTES, 
 
 English : 
 
 of 42 Ed. 3, 
 
 of 5 Rich. 2, 
 
 of 6 Rich. 2, c. 8, 
 
 of 13 Elizabeth, 
 
 of 21 Jac. L, c. 19, 
 
 of 2 Car. 2, c. 18, 
 
 of 13 & 14 Car. 2, c. 11, 
 
 of 7 Geo. 1, c. 21, 
 
 of 2 Geo. 2, c. 11, 
 
 of 8 Geo. 2, c. 24, 
 
 of 7 Geo. 2, c. 15, 
 
 of 19 Geo. 2, c. 37, 
 
 of 26 Geo. 3, c. 60, 
 
 of 34 Geo. 3, c. 68, 
 
 of 53 Geo. 3, c. 159, 
 
 of 53 Geo. 3, c. 159, 
 
 of 2 Geo. 4, 
 
 of 4 Geo. 4, c. 83, 
 
 of 6 Geo. 4, c. 94, 
 
 of 6 Geo. 4. c. 125, 
 
 of 1 Wm. 4, c. 68, 
 
 of 3 & 4 Wm. 4, c. 55, 
 
 of 3 & 4 Vict. c. 65, 
 
 of 3 & 4 Vict. c. 65, 
 
 of 5 & 6 Vict. c. 39, 
 
 of 8 & 9 Vict. c. 89, 
 
 of 12 & 13 Vict. c. 29, 
 
 relating to Priority of English Ships, i. 26, n. 
 
 i. 26, n. 
 " " " i. 26, n. 
 
 Sale of Ship, i. 84, n. 
 " " i. 85, n. 
 
 " Registry, i. 26, and n. 
 
 " i. 26, n. 
 Bottomry, i. 168. 
 Ships as Carriers, i. 206, n. 
 i. 206, n. 
 Torts of Master, ii. 121, n., 127, 138. 
 Bottomry, i. 169. 
 ' Registry, i. 42, 50. 
 
 ' " i. 42. 
 
 ' Sale of Ship, i. 78. 
 
 ' Owners, ii. 121, n., 127. 
 
 ' Carriers, i. 250, 252, n. 
 
 ' Stoppage in Transitu, i. 510, n. 
 
 i. 510, n. 
 Pilots, ii. 114, 115. 
 ' Carriers, i. 250, n., 252, n. 
 
 ' Registry, i. 27, n. 
 
 ' Material Men, ii. 322, 
 
 ' Admiralty Practice, ii. 440, 
 
 ' Stoppage in Transitu, i. 510, n. 
 
 * Registry, i. 44, n., 46, n. 
 
 " " i. 27. 
 
 of 17 & 18 Vict. c. 104 (Merchants' Shipping Act), relating to Collision, 
 
 i. 533, 596; Master, ii. 121, n., 125, 127; Pilots, ii. 117, n. ; Salvage, 
 
 ii. 273. 
 of 18 & 19 Vict. c. 30, relating to Collision, i. 545, n. 
 of 25 & 26 Vict. c. 63, " " i. 531, 554, 596. 
 
 of 25 & 26 Vict. c. 63, " Owners, ii. 121, n.
 
 INDEX. * ^^^ 
 
 STATUTES— Continued. 
 
 American : (United States) 
 
 of 1789 relating to Registry, i. 28, 29. 
 
 of 1789 " Pilots, ii. 106, n., 107, n. 
 
 of ,789 " District Courts, ii. 196, 201, 355, 356, 436, 440. 
 
 of 1789 " Admiralty Practice, ii. 355, 436. 
 
 of 1789 " Appeals, ii. 496, 499, 500. 
 
 of 1790 " Seamen, ii. 35, n., 44, n., 63, n., 76, n., 78, n., 80, n., 
 
 100, n., 102, n., 103, n. 
 
 of 1792 " Registry, i. 27, 28, 29, 31, 32, 33 ; notes, 36, 37, 40, 
 
 50, 67, 
 
 of 1792 " Admiralty Practice, ii. 356, 450. 
 
 of 1793 " Enrolling and Licensing, i. 27, 29, 31, 32, 34, 35. 
 
 of 1794 " Appeals, ii. 501. 
 
 of 1797 " Registry, i. 34, 36. 
 
 of 1797 " Final Process, ii. 495, 
 
 of 1798 " Seamen, ii. 80, n. 
 
 of 1799 " " "• 80' °- 
 
 of 1799 " Decrees, ii. 491. 
 
 of 1800 " Salvage, ii. 316. 
 
 of 1802 " Seamen, ii. 80, n. 
 
 of 1802 " Admiralty Practice, ii. 451. 
 
 of 1803 " Admiralty Practice, ii. 451, 453. 
 
 of 1803 " Appeals, ii. 496, 499. 
 
 of 1803 " Circuit Court, ii. 193. 
 
 of 1803 " Supreme Court, ii. 191, 193, 
 
 of 1803 " Seamen, ii. 33. 
 
 of 1803 " Registry, 1. 31 ; ii. 33, n., 84, n., 86, n., 87, n. 
 
 of 1804 " " i-29. 
 
 of 1805 " Seamen, ii. 80, n. 
 
 of 1807 " Decrees, ii. 491. 
 
 of 1811 " Seamen, ii. 80, n. 
 
 of 1817 " Registry, i. 29-41. 
 
 of 1817 " Admiralty Practice, ii. 441. 
 
 of 1821 " District Courts, ii. 202. 
 
 of 1825 " Registry of Steamboats, i. 35, 
 
 of 1825 " Seamen, ii 33, n., 35, n,, 89, n, 
 
 of 1826 " Final Process, ii. 495. 
 
 of 1827 " Admiralty Practice," ii. 451. 
 
 of 1829 " Seamen, i. 101, n. 
 
 of 1831 " Registry of Whale Ships, i. 35 ; ii. 33. 
 
 of 1835 " Mutiny, i. 32, n. ; ii, 89, n., 91, n. 
 
 of 1837 " Pilots, ii. 106, n. 
 
 of 1838 " Regulation of Steamboats to prevent Collision, i. 155, n. 
 
 of 1839 " Registry of Whale Ships, i. 30. 
 
 of 1839 " Circuit Courts, ii. 196. 
 
 of 1840 " Registry of Whale Ships, i. 31, 
 
 of 1840 " Shipping Articles, ii. 36, n., 44, n., 45, n., 78, n., 84, n., 
 
 85, n., 86, n., 92, n., 98, n. 
 
 of 1840 " Final Process, ii. 495.
 
 904 - INDEX. 
 
 STATUTES —Continued. 
 
 of 1842 relating to Shipping Articles, ii. 78, n., 100, n. 
 
 of 1842 " Final Process, ii. 495, 
 
 of 1842 " Admiralty Practice, ii. 356. 
 
 of 1843 " Seamen, ii. 80, n., 81, n. 
 
 of 1845 " Admiralty Jurisdiction, ii. 164, 165. 
 
 of 1846 " " " ii. 185. 
 
 of 1847 " Costs in Admiralty, ii. 410, 481. 
 
 of 1849 " Collision, i. 555, 597. 
 
 of 1850 " Sale, i. 53, 60, 61, 276 ; ii. 90, n. 
 
 of 1851 " Owners, ii. 120, 121, n, 257. 
 
 of 1852 'i Collision, i. 548, 556. 
 
 of 1852 " Pilots, ii. 107. 
 
 of 18.53 " Costs in Admiralty, ii. 481. 
 
 of 1855 " Liens, ii. 146, n. 
 
 of 1856 " Change of Name, i. 38. 
 
 of 1856 " Seamen, ii. 85, n., 86, n., 100, n. 
 
 of 1859 " Appeals, ii. 508. 
 
 of 1861 " " ii. 508. 
 
 of 1861 " Admiralty Jurisdiction, ii. 173. 
 
 of 1862 " Admiralty Practice, ii. 437. 
 
 of 1863 " Appeals, ii. 508. 
 
 of 1864 " Admiralty Practice, ii. 437. 
 
 of 1864 •' Collision, i. 548, 561. 
 
 of 1864 " Prize, ii. 458, 459, 460, 461, 462, 463, 465, 466, 467, 
 
 468, 469, 470, 471, 472, 473. 
 of 1864 " Salvage, ii. 316. 
 
 of 1865 " Admiralty Practice, ii. 437. 
 
 of 1865 " Collision, i. 561. 
 
 of 1866 " Seamen, ii. 33. 
 
 of 1867 " Collision, i. 548, 561. 
 
 of 1868 " Appeals, ii. 508. 
 
 American : (State) 
 
 Maine, Statute of 1821, relating to Owners, ii. 121, n. 
 
 " Kev. Stat. 1840, " " ii. 121, n. 
 
 " Kev. Stat. 1857, " Stoppage in Transitu, i. 510, n. 
 
 " Rev. Stat. 1841, 1857, " Torts of Master, ii. 121, n. 
 
 " Rev. Stat. 1857, " Liens, ii. 142, n. 
 
 " Rev. Stat. 1857,' " Owners, ii. 121, n. 
 
 New Hampshire, C. Stat. 1853, " Liens, ii. 142, n. 
 
 Massachusetts, Rev. Stat. 1836, " Sale, i. 63. 
 
 " Act of 1818, " Owners, ii. 121, n. 
 
 Rev. Stat. 1836, " Torts of Master, ii. 121, n. 
 
 " Rev. Stat. 1836, " Pilots, ii. 108. 
 
 " Acts, 1839, 1845, 1849, " Stoppage in Transitu, i. 510, n. 
 
 " Acts, 1848, 1855, " Liens, ii. 142, 145, 146. 
 
 " Gen. Stats. 1860, " Owners, ii. 121, n. 
 
 " Gen. Stats. 1860, " Liens, ii. 148. 
 
 " Act of 1862, " " ii. 148. 
 
 Rhode Island, R. S. 1857, " Stoppage in Transitu, i. 510, n.
 
 INDEX. 
 
 905 
 
 STATUTES — Continued. 
 
 New York, Rev.'Stat. 1830, 1852, relating to Stoppage in Transitu, i. 510, n. 
 
 Rev. Stat. 
 " 2 Rev. Stat. Act,l 855, 1858, " 
 
 Pennsylvania, Act, 1834, " 
 
 Act, 1858, 
 
 Georgia, Act, 1851, " 
 
 " Act, 1852, " 
 Florida, Act, 1847, 1848, 1850, 
 
 Alabama, Act, 1836, " 
 
 Act, 1852, 
 
 Mississippi, Act, 1840, 1841, " 
 
 Louisiana, Act, " 
 
 Arkansas, Rev. Stat. " 
 
 Tennessee, Act, 1833, " 
 
 Kentucky, Act, 1839, 1841, " 
 
 Ohio, Rev. Stat. 1854, '* 
 
 " Rev. Stat. 1844, " 
 
 Indiana, Act, 1838, " 
 
 Rev. Stat. 1852, 
 
 Illinois, Rev. Stat. 1845, " 
 
 " Rev. Stat. 1845, 1858, " 
 
 Michigan, Rev. Stat. 1839, 1846, " 
 
 " Rev. Stat. 1857, 
 
 Missouri, Rev. Code, 1845, " 
 
 Rev. Stat. 1855, " 
 
 Iowa, Rev. Stat and Code, " 
 
 " Code and Act, 1854, 
 
 Wisconsin Rev. Stat. " 
 
 California, Laws of, " 
 
 Pilots, ii. 108. 
 
 Liens, ii. 142, n. 
 
 Stoppage in Transitu, i. 510, n. 
 
 Liens, ii. 142, n. 
 
 " i. 119, and n. 
 
 " ii. 142, n. 
 
 " i. 119; ii. 142. 
 
 " i. 119, n. 
 
 " ii. 142, n. 
 
 " i. 119, andn. 
 Sale, i. 87, n. 
 Liens, i. 119, and n. ; ii. 142, n. 
 
 " ii. 142, n. 
 
 " i. 119, and n. ; ii. 142, n. 
 
 " i. 119, 121, n.; ii. 142. 
 Stoppage in Transitu, i. 510, n. 
 Liens, i. 119, and n. 
 
 " ii. 142, n. 
 
 " i. 119, n., 121. 
 
 " ii. 142, n. 
 
 " i. 119, and n. 
 
 " ii. 142, n. 
 
 " i. 119, and n., 121, n. 
 
 " ii. 142, n. 
 
 " i. 119, and n. 
 
 " ii. 142, n. 
 
 " i. 119, and n. ; ii. 142, n„ 
 
 " i. 119, and n. ; ii. 112, 
 142, n. 
 
 STEAMBOAT. See Tow-Boat. 
 
 in whose name registered, i. 34. 
 
 course and duties of to avoid collision. See Collision. 
 
 powers of master of, ii. 19. 
 
 if barge is necessary to, hire of gives lien, ii. 148. 
 
 salvage by, ii. 274 - 276, 
 
 customs in bar, ii. 305. 
 
 compensation in, 309. 
 STEAM TUG, liability of in collision, i. 534, n. 
 
 lien of crew of, for wages, ii. 182, 184. 
 
 salvage by, ii. 274 - 276, 305, 309. 
 STEVEDORES, lien of, upon vessel, ii. 189. 
 STIPULATIONS, as to warranty, see Mesne Process, Claim; as to costs, see Costs, 
 
 Stipulations for, 
 STOPPAGE IN TRANSITU, i. 479-524. 
 
 I. Origin and History of the Right, i. 479-483. 
 
 definition of the right, i. 479. 
 
 to whom it belongs, i. 479. 
 
 originated with waterborne goods, i. 479.
 
 906 INDEX. 
 
 STOPPAGE IN TUANSITV — Continued. 
 
 properly considered under shipping, i. 479. 
 
 uncertain when and how it became part of the law of England, i. 479. 
 
 its recent adoption there, i. 479. 
 
 three methods by which it may have entered into the law of England, i. 479. 
 
 first: by the continental law, i. 479. 
 
 how this law treats a sale, i. 479, 480. 
 
 no right of property in buyer till possession, i. 480. 
 
 its distinction between jus ad rem and jus in re, i. 480. 
 
 seller's ownership of goods till when, i. 480. 
 
 no necessity of action to revest title, i. 480. 
 
 buyer's insolvency before possession leaves the goods the property of 
 
 seller, i. 480. 
 rule in Scotland formerly and now, i. 480. 
 rule in France similar to rule in England, i. 480. 
 impossibility of rule of civil law in England, i. 480. 
 where under civil law buyer could reclaim property, i. 480, 
 second method : 
 
 supposable right of rescission in the seller for non-payment, if buyer in- 
 solvent, i. 480. 
 effort to establish this as the true theory, i. 480. 
 course of adjudication here and in England against it, i. 480. 
 third method : 
 
 that lien extends and goods are constructively in the seller's possession 
 till buyer's actual possession, i. 481. 
 true rule ; combination of first and third, i. 481. 
 cause of its adoption, i. 481. 
 
 founded on, and the exercise of, seller's lieq, i. 481, 482, n. 
 law of lien devised to supply want of civil law, distinction between jus 
 
 ad rem and jus in re, i. 481. 
 above view sustained by cases, i. 481, and n., 482, 483, n. 
 attempt to change law from lien to rescission, i. 481. 
 first cases on, i. 481, n. 
 founded on equitable rather than legal principles, i. 481, n., 
 
 482, n. 
 opinion of Hardwicke, L. Ch., and Buller, J., as to, i. 481, n. 
 " he who would have equity, must do equity," i. 482, n. 
 right or privilege not known before 1690, i. 483, n. 
 whether a lien or a right of rescission important, i. 483. 
 II. Stoppage in transitu an Extension of Seller's Lien, i. 483 - 486. 
 if stoppage in transitu rescinds or annuls sale, property vests in seller, i. 483. 
 therefore buyer cannot tender price and take the goods unless, i. 483. 
 and seller no claim against buyer for deficit in price, i. 483. 
 and nothing necessary to complete seller's title, i. 483. 
 but he may resell at once and obtain profit, i. 483. 
 if only the exercise of lien by seller, wholly diffbrent effect, i. 483. 
 goods tlien in seller's hands as security, i. 484. 
 payment of what is due, discharges lien and destroys seller's right of 
 
 possession, i. 484. 
 celler may treat the goods as pledged for the debt, i. 484.
 
 INDEX. 907 
 
 STOPPAGE IN TRAJHSITJJ — Continued. 
 
 to sell them, must do what, i. 484. 
 
 balance returned to buyer, if proceeds more than debt and charges, 
 i. 484. 
 
 if not sufficient, balance due from buyer, i. 484. 
 
 if buyer insolvent, seller may take his dividend on balance, i. 484. 
 the latter the American theory, i. 484, and n. 
 the English theory, i. 484, and n. 
 surety for price has no right of stoppage, i. 484. 
 when held equitable lien and not a rescission, i. 484, n. 
 
 vendee or his assignees may recover the goods on payment of price, i. 484, n. 
 vendor may recover price, on tender of goods, i. 484, n. 
 vendor may stop goods for balance, if paid in part, i. 484, n. 
 lien exists only between vendor and vendee, i. 485. 
 consignor, virtually or substantially a vendor, may exercise right of stoppage, 
 
 i. 485. 
 principal consigning to his factor, upon factor's insolvency may stop goods, 
 
 i. 485. 
 and so without such insolvency, i. 485. 
 so, person remitting money for a particular purpose, i. 485. 
 if consignor send goods for a precedent debt, no right and why, i. 485. 
 not prevented by unadjusted account or uncertainty of balance, i. 485, and n. 
 nor by acceptance of negotiable paper, unless, i. 486. 
 
 if such bill be proved in insolvency and dividend paid, i. 486. 
 
 consignor need not tender back bill, i. 486, n. 2. 
 nor actual receipt, of part payment, i. 486. 
 
 if part payment and seller stops afterwards^ the buyer cannot recover back, 
 part payment, i. 486. 
 
 if a rescission, he could, i. 486. 
 III. When this Right may be exercised, i. 486 - 512. 
 
 A. Constructive possession of seller, i. 486, 487. 
 
 seller's actual possession of goods makes them his security, i. 486. 
 
 buyer's possession destroys seller's lien, i. 486. 
 
 stoppage only when neither has actual possession, i. 486. 
 
 consignor's right gone when goods reach consignee, i. 487, n. 
 
 constructive possession of buyer, and actual possession of seller, yet no right 
 
 to stop, i. 487. 
 when the opposite may be true, i. 487. 
 
 B. Of goods warehoused, i. 487 - 491. 
 
 warehouse-man agent of every depositor of goods, i. 487. 
 
 his possession, depositor's possession, i. 487. 
 
 when the seller permitted the buyer to leave the goods in the seller's ware- 
 house for a charge, no right to stop, i. 487. 
 
 but if there upon rent charged and not paid when vendee fails, has right, 
 i. 487, n. 2. 
 
 effect of some act remaining to be done by seller, i. 488. 
 
 warehouse-man's order to weigh and deliver; must be weighed first, i. 488, n. 
 
 sale of oil in casks to be measured, etc., i. 489, n. 3. 
 
 seller's order for warehoused goods may not transfer goods, i. 489. 
 
 but buyer's delivery of the order to warehouse-man will, i. 489.
 
 908 INDEX. 
 
 STOPPAGE IN TRANSITU — Continued. 
 
 so if warehouse-man enter same in his books, or otherwise accept the order, 
 i. 489. 
 
 dock warrants not negotiable, i. 489, n. 
 
 when property passes to vendee who sells by sample goods in vendor's 
 warehouse, and parts of the same are delivered by vendor on order 
 of vendee, i. 489, n. 
 if buyer has acted under the order and removed part, i. 490. 
 transfer on wharfinger's books makes him ordinarily vendee's agent, i. 490, 
 
 n. 2. 
 when not agent, i. 490, n. 
 " we hold to your order," etc., given by vendor of goods in his warehouse to a 
 
 vendee, i. 490, n. 
 seller may countermand order if he has an important thing to do on or with 
 
 goods, i. 490. 
 sale of oats in a certain bin, i. 490, n. 2. 
 when a seller could not countermand the order, i. 490, n. 2. 
 if seller has justified warehouse-man in certifying that he holds goods subject 
 
 to buyer's order, right to stop lost, i. 491. 
 transit ended when the carrier deposits the goods in his warehouse subject to 
 buyer'5 order, i. 491. See post, F. 
 C. When delivery on shipboard terminates the transit, i. 491 - 495. 
 goods most frequently stopped in carrier's hands, i. 491. 
 though the goods by bill of lading deliverable to consignee, i. 491, n. 3. 
 if the ship is owned or chartered by buyer of goods ; distinction, i. 491 -494, 
 
 and notes, 
 and if the goods are to be directly carried to buyer by such ship, i. 492, and n. 
 but how if sent in such ship to foreign market, i. 493, and n. But see 
 post, i. 495. 
 cases discussing the right of vendor to stop in transitu after delivery on board 
 ship owned or chartered by vendee, i. 491 - 494, n. 
 
 vendee's instructions to vendor to send by a particular ship, i. 493, n. 
 
 goods shipped for a particular port and a market, i. 493, n. 
 
 put on board for, and on the account and risk of, consignees, 1. 491, n., 
 
 492, and n. 
 deliverable by bill of lading to the vendor's order, or assigns, 
 
 i. 493, n. 
 goods ordered by vendee to be sent to another person, in transit till 
 
 they reach him, i. 495. But see ante, i. 493, and n. 
 second buyer cannot defeat seller's lien, i. 495. 
 if seller takes receipt from master as for his own goods, he preserves hLs 
 
 lien, i. 495. 
 so also by a demand for such receipt, i. 495. 
 D. How the lien of the carrier affects this right, i. 495, 496. 
 carrier by land or sea acquires lien for his charges, i. 495. 
 if vendee owns ship, cross liens may arise, i. 495. 
 ship-owner has lien for freight as against seller, i. 495. 
 seller has lien for the price as against ship-owner who is buyer, i. 495. 
 how tlie law adjusts these liens, i. 495. 
 ship-owner having possession retains goods for his freight, i. 495.
 
 INDEX. 909 
 
 STOPPAGE IN TRANSITU — Continued. 
 
 seller by paying freight, and not otherwise, may acquire right to possession, 
 
 i. 495. 
 trover by shipper against administrator or assignee of an insolvent, if freight 
 
 is tendered, not otherwise, i. 496. 
 relation of carrier to goods, and to buyer and seller, i. 496. 
 claimant of goods must pay freight, i. 496. 
 but only on goods stopped, i. 496. 
 
 while held by carrier for his lien, goods in transit, i. 496. 
 landing on consignee's wharf of part of goods by carrier, and taking that part 
 
 back and holding all, will not extinguish seller's right, i. 496. 
 payment of freight by buyer will not of itself terminate transit or take away 
 
 right, i. 496. 
 carrier agreeing to look to consignor for freight, cannot detain goods from 
 
 consignee for freight, i. 496. 
 and after demand, right would not continue, i. 496. 
 where carrier refused to deliver until old demand settled, i. 496, n. 6. 
 
 E. Goods lodged in custom-house, i. 497, 498. 
 
 when goods so lodged have completed their transit, i. 497, 498. 
 
 if anything remains to be done by consignee, i. 497. 
 if goods pass to the warehouse because consignee no right to them by non- 
 payment of duties or otherwise, i. 497. 
 not entered on account of loss of invoice, i. 497, n. 
 subsequent taking by government of goods once delivered to consignee, i. 498. 
 
 F. Of constructive delivery of goods, i. 498 - 500. 
 
 by carrier agreeing to hold, or to deliver to his customers as wanted, i. 491, 
 
 and n. ; 498. 
 by marking, or taking samples, or the like, without removal of any part, 
 
 i. 498, n. 
 
 in such cases agency the test, i. 498. 
 by deposit for carrier's convenience till he receives directions, i. 498, n. 2. 
 by direction of goods to purchaser, i. 498, n. 2. 
 by notice to vendee of arrival of goods, i. 498, n. 2. 
 
 evidence of intention as to delivery not communicated to custodian held 
 admissible, i. 499. 
 by delivery to vendee, of key of vendor's warehouse, i. 499. 
 by receipt by vendor of rent of warehouse, i. 499. 
 by demanding and marking goods, by vendee's agent at the inn reached at 
 
 end of journey, i. 499. 
 by permitting goods to be re-sold and re-marked, i. 499. 
 by delivery to vendee's agent or packer, when, i. 499, and n. 6. 
 if goods are to rest, where received by agent, i. 499, 500, and n. 
 if agent is still to forward them, i. 500. 
 constructive possession, full effect of actual, i. 500. 
 corporal touch of vendee once held necessary, i. 500, n. 
 delivery on vendee's wharf simply, ends transit, i. 501, n. 
 six classes of cases wherein the transit has not ended, and right of stoppage 
 
 exists — 
 
 1. Where goods originally forwarded on board ship chartered by 
 vendee, i. .501, n.
 
 910 INDEX. 
 
 STOPPAGE IN TRANSITU — Continued. 
 
 2. Where delivery of goods to vendee deemed incomplete from his re- 
 fusal to accept, id. 
 
 3. Where goods remained in custom-house for duties unpaid, id. 
 
 4. Where goods still in carrier's hands, or wharfinger's, or his agent's, 
 subject to carrier's lien for freight, id. 
 
 5. Where goods, though at port of delivery, are on shipboard or in the 
 hands of ship's lighterman, to be conveyed to v/harf, id. 
 
 6. Where goods performed part of transit, and in middle-man's hands 
 to be forwarded by other carriers, id. 
 
 G. Whether consignee may hasten his own possession, i. 501 , 502. 
 
 consignee cannot terminate transit by taking premature possession, i. 501, 
 
 and n. • 
 
 difficulty of laying down any rule on this subject, i. 501. 
 no loss of right by lapse of time merely, i. 501. 
 when vendee may take possession before arrival, i. 501, n. 
 what act at an intermediate place will extinguish the right, i. 502, n., 
 
 503, n. 
 attachment by creditor of vendee, and pledge of goods by him to secure bonds- 
 man, i. 502, n. 
 reception by vendee at intermediate place, i. 502, n. 
 mere demand by vendee at such place, i. 502, n. 
 order by vendee to intermediate forwarder to sell ; effect on goods sold and 
 
 those forwarded to vendee, i. 502, n. 
 H. Of the delivery of part of the goods, i. 503. 
 whether terminates transit, i. 503. 
 if contract severable, i. 503, and n., 504, n. 
 if contract entire, i. 503, and n., 504, n. 
 I. Of the effect of a bill of lading on this right, i. 504-512. 
 right of consignor by bill of lading to, i. 194, 195, 197. 
 depends entirely on the negotiable quality of a bill of lading, i. 504-512. 
 importance of tliis question, i. 504. 
 the question discussed, i. 504 - 512, and n. 
 difference between English and American cases on this point, i. 504 - 506, 
 
 and n. 
 bill of lading may be considered carrier's receipt for the goods, i. 504. 
 as such, little effect upon the right, i. 504. 
 how regarded by law merchant, i. 504. 
 muniment of title, i. 504. 
 
 quasi negotiable instrument, i. 504. 
 
 doubt of English courts, whether transfer by indorsement operated as 
 
 actual transfer of goods, i. 505, 506, and n. 
 wherein differing from a bill of exchange or promissory note, i. 506, n. 
 shipper's right not effected by an appropriation of it without his authority, 
 
 though indorsed in blank deliverable to his assigns, i. 506, n. 
 if stolen from him, rights of a subsequent bona fide transferee, i. 506, n. 
 represents what, and what it transfers, i. 506, n. 
 if indorsed as a pledge to secure consignee's debt, consignor's right of stoppage 
 
 not gone, i. 506, n. 
 but holds subject to pledgee's rights, i. 506, n.
 
 INDEX. 911 
 
 STOPPAGE IN TRANSITU — Continued. 
 
 if consignee pledged his own goods also, consignor may compel appropriation 
 
 of all consignee's goods to pledgee's claim before any in bill of lading, i. 
 
 506, n. 
 consignor bound to tender specific advances on that bill, i. 507, n. 
 but not liable for general balance of account, i. 507, n. 
 word " assigns " or " order " in, effect of, in rendering negotiable, i. 506. 
 what elements make up its negotiability, i. 507. 
 
 if transferred without indorsement, carries no title to property, i. 507. 
 special indorsement, i. 507. 
 
 when a muniment of property, transferable and justifying third parties in be- 
 lieving consignee had right to sell, so that he may transfer and defeat right 
 
 of stoppage, i. 507, 508. 
 if buyer from consignee knows the sale to be in fraud of original seller, sale 
 
 voidable, i. 508. 
 so if he knows of the present or prospective insolvency of consignee, i. 508. 
 sale by consignee to one ignorant of his insolvency, and to prevent stoppage 
 
 in transitu, would not affect purchaser, i. 508. 
 sub-vendee's notice or knowledge that goods are not paid for, i. 508. 
 what notice or knowledge is necessary, i. 508. 
 consignee must have power of sale by bill of lading, i. 508. 
 what results otherwise, i. 508, 509. 
 
 if consignee a factor only, can only sell for his principal, i. 509, 
 and no authority to pledge, i. 509, and n. 
 effect of consignor's sending his factor the usual and unrestricted bill of lading, 
 
 i. 509. 
 
 whether factor can pass property in the goods, in such case to innocent 
 
 party, i. 509. 
 statutes protecting such transferrees, i. 510, n. 
 practice of continental merchants, i. 510, 511. 
 mere possession of bill of lading transfers no property, unless lawful, or tran- 
 
 ferree justified in believing lawful, i. 511. 
 delivery of master's bill of lading to consignee conveys no title, i. 511. 
 but might strengthen an equitable title, i. 511. 
 deposit of bill of lading creates a lien on the goods to the amount paid on the 
 
 security, i. 511. 
 such a lien will prevail against seller's right to stop, i. 511, 
 but will not destroy it, i. 512. 
 what sufficient to give an equitable title, i. 510, n. 
 property may vest in consignee free from lien without a bill, i. 511. 
 right of guarantor to stop goods, i. 512. 
 
 rV. How FAR THE ExERCISE OF THIS RlGHT MUST BE ADVERSE TO THE 
 
 Buyer, i. 513-515. 
 meaning of rule, that exercise of the right must be adverse to buyer, i. 513. 
 cannot be exercised under title derived from consignee, i. 513, n. 2. 
 effect of stranger's taking possession of goods for consignor, i. 513, n. 2. 
 exercise of, by consignor on notice from consignee of his inability to pay for 
 
 goods, i. 513. 
 declarations showing intent of consignee not to take possession of goods 
 
 landed on a wharf where he usually received goods, i. 513, n. 3.
 
 912 INDEX. 
 
 STOPPAGE IN TRANSITU — Continued. 
 
 action by vendor for price of goods, an election not to rescind, i. 514, n. 
 assignment of the goods by the consignee, to be disposed of for the consignor, 
 
 is an affirmance of the contract and destroys the right to stop, i-. 514, n. 
 where a question of rescission and not of lien, i. 515. See ante, I. 
 right of stoppage belongs to lien, not to rescission, i. 515. 
 if sale actually rescinded, or if goods within vendee's power and he declines to 
 
 hold them, and seller subsequently obtains them, this is a preference as 
 
 against other creditors of vendee, i. 515, n. 
 goods put in vendee's warehouse, though contrary to his order, transit termi- 
 nated, i. 515, n. 
 V. What Insolvency \pill give the Right, i. 516 - 520. 
 
 if seller knew of buyer's insolvency when he sent the goods, he cannot stop 
 
 them, i. 516. 
 
 unless, in so sending them, he had some special security which failed, 
 i. 516. 
 whether insolvency must take place between sale, and exercise of right, i. 51 6^ 
 
 and n. 
 only a vendor can stop goods, i. 517. 
 
 foreign merchant buying goods on his own account, and sending them, 
 
 responsible as vendor within meaning of law, i. 517. 
 or one sending goods, to be sold jointly for vendor and consignee, i. 517. 
 when an alien enemy may stop, i. 517. 
 a surety for consignee to the consignor cannot, i. 517. 
 his security by attachment, and not by stoppage, i. 517. 
 sender's lien must be a lien for price, to enable him to stop, i. 517. 
 property in goods essential to exercise of right, i. 518. 
 nothing but buyer's insolvency gives this right, i. 518. 
 or will allow consignor to interfere with consignment, i. 518. 
 need not be legal or formal insolvency, i. 518. 
 meaning of term insolvency, i. 518, n., 519, n. 
 in technical sense, means taking benefit of insolvent act, i. 518, n. 
 in popular sense, inability to pay debts, i. 518, n. 
 in mercantile sense, stoppage of payment, i. 518, n. 
 either insolvency suSicient to authorize exercise of right, i. 518, n. 
 but must be some overt act evidencing such insolvency, to authorize exercise 
 
 of right, i. 518, n. 
 mere inability to pay without such act, insufficient, i. 519, n. 
 vendee's admission of insolvency authorizes vendor to stop goods, i. 519, n. 
 attachment by vendee's creditors of goods in transitu, i. 519, n. 
 seller, stopping, assumes the risk, i. 519. 
 buyer may pay price and claim goods, i. 519. 
 malicious stopping by seller, i. 519. 
 acceptance of bills, or giving notes by solvent buyer for goods, defeats seller's 
 
 right, i. 519. 
 buyer's refusal to comply with terms of sale gives seller the right, i. 519. 
 seller's right not defeated by any bargain between consignee and his assignee, 
 
 i. 520. 
 or by claim, lien, or attachment of any other person, i. 507, 508, 520, n. See 
 
 ante, III., D.
 
 INDEX. 913 
 
 STOPPAGE IN TUAT^SITV — Continued. 
 
 when seller must discharge the claim, i. 495 ; 520. 
 precedence of seller's lien, i. 520. 
 
 attachment by vendee's creditor will not defeat vendor's right, i. 520, and n. 4. 
 but if vendee takes such possession, as he can, right gone, i. 520, n. 4. 
 VI. How THE Right of Stoppage may be enforced and exercised, 
 i. 520-524. 
 buyer's insolvency alone will not operate as a stoppage, i. 520. 
 goods must be actually stopped, i. 520. 
 actual taking possession by seller not necessary, i. 520, 521. 
 if possible, should be done, i. 521. 
 right justifies any mode not criminal, i. 521. 
 constructive possession sufiScient when, i. 521. 
 
 how constructive possession obtained, i. 521. 
 notice to actual possessor of goods, i. 521. 
 if given to carrier's servant, i. 521. 
 to consignee's assignees sufficient, i. 521, n. 2. 
 demand on vendee, while goods are in custom-house, insufficient, 
 i. 521, n. 2. 
 should have been on custom-house officers, i. 521, n. 2. 
 notice given to principal, and not to carrier or servant, when sufficient to stop 
 
 goods, i. 521, and n. 3, 522, n. 
 principal must use reasonable diligence, i. 522, n. 
 carrier's duty to comply with notice properly given, i. 522. 
 if he does not, seller's right not defeated, i. 522. 
 buyer's possession thus obtained, unlawful, i. 522. 
 carrier responsible for any injury to seller, i. 522. 
 if buyer insolvent, and goods come to his assignee's hands, trover lies 
 
 by the seller, i. 522. 
 delivery to buyer, by mistake of carrier after notice, will not defeat 
 right, i. 522. 
 carrier should demand indemnity where both parties claim the goods, i. 522. 
 no legal obligation to give such, and rightful claimant would recover goods, 
 
 i. 522. 
 but he would recover no costs or damages, if carrier warranted in withholding 
 
 goods until indemnified, i. 522. 
 if goods in custom-house, how seller may take possession, i. 523. See ante, 
 
 III., E. 
 consignor may do by agent what he can personally, i. 523. 
 agent neglecting to stop goods when he has the power, liable, i. 523, n. 2. 
 
 if agent acts without authority in stopping goods, effect of subsequent 
 
 ratification, i. 523. 
 question of "quo animo " he acts, i. 523, n. 3. 
 
 ratification must take place when party himself could lawfully have 
 done the act which he ratifies, i. 523, n. 4. 
 on the Continent of Europe stoppage unnecessary, i. 523. 
 in France law nearly like ours, i. 523. 
 
 vendor bound to indemnify insolvent's estate for advances, expenses, 
 etc., i. 524, n. 
 STORAGE, of provisions, sails, anchors, &c., i. 278. 
 VOL. II. 58
 
 914 INDEX. 
 
 STORES. See Supplies. 
 
 STOWAGE of goods, if bad when carrier liable, i. 261, 262. 
 
 master's duty as to, ii. 20. 
 STRANDING, voluntary. See General Average. 
 STATHAM, i. 5. 
 SUITS IN ADMIRALTY, ii. 361-387. 
 
 L When they mat be brocght, ii. 361 -363. 
 
 statute of Anne limiting suits, not in force, ii. 361. 
 
 nor State statutes of limitations, ii. 361. 
 
 but stale demands not enforced, ii. 361. 
 
 seamen's lien for wages lost by delay, ii. 361. 
 
 whether claim is stale or not, depends on circumstances of case, ii. 361. 
 
 difficulty of laying down general rule, ii. 361. 
 
 party, unable to sue in rem, may sue in personam, ii. 361. 
 
 if ship continues in hands of same owners, longer time given, ii. 362. 
 
 if sold, suit to be brought on first opportunity, ii. 362. 
 
 if not, delay is fatal, ii. 362. 
 
 staleness of claim to be alleged in answer, ii. 363. 
 II. For Seamen's Wages, ii. 364-369. 
 
 one third due at every port of discharge, ii. 364. 
 
 unless in express stipulations to the contrary, ii. 364. 
 
 and the balance, after discharge at last port, ii. 364. 
 
 if unpaid within ten days, district judge may summon master, ii. 364. 
 
 so in dispute between master and crew as to, ii. 364. 
 
 if judge is absent, or living more than three miles from ship, then any judge, 
 ii. 365. 
 
 or justice of the peace, ii. 36.5. 
 
 on neglect of master to appear, process will issue against vessel, ii. 365. 
 
 or unless he prove payment, ii. 365. 
 
 or satisfaction, or forfeiture, ii. 365. 
 
 same power conferred on commissioners, ii. 365. 
 
 process immediate, if vessel has left, ii. 365. 
 
 or about to sail, ii. 365. 
 
 otherwise, right of action does not accrue till ten days after discharge, ii, 366. 
 
 or after cargo might, and should, have been discharged, ii. 366. 
 
 whether usage of discharging by stevedores affects time, ii. 366, n. 2. 
 
 fifteen days, a proper allowance for discharging, ii. 366, n. 3. 
 
 but longer time may be allowed, ii. 366, n. 3. 
 
 claim not defeated by unnecessary delay in discharging, ii. 366. 
 
 right to proceed at law reserved, ii. 366. 
 
 if seamen are discharged, time runs from day of discharge, ii. 366, 367. 
 
 day of discharge not included, ii. 367, n. 
 
 libel may be filed before expiration of time, ii. 367. 
 
 but process will not issue, ii. 367. 
 
 this applicable to suits in rem, ii. 367. 
 
 not to suits in personam, ii. 367. 
 
 master or owners may be sued at once, ii. 367. 
 
 joinder necessary in like complaint against same ship, ii. 368. 
 
 court will order consolidation of libels, ii. 368. 
 
 eubsequent parties may have benefit of prior attachment, ii. 368.
 
 INDEX. 915 
 
 SUITS IN ADMIRALTY— CoM^mued. 
 
 III. Manner of Beginning, ii. 368, 369. 
 
 in England, by citation of respondent, ii. 368. 
 respondent enters appearance, and gives security, ii. 368. 
 plaintiff thereupon offers libel, ii. 368. 
 in America, libel the earliest proceeding, ii. 368. 
 no regular authoritative system of pleading, ii. 369. 
 except a.s regulated by rules of court, ii. 369. 
 substance regarded rather than form, ii. 369. 
 
 any process distinctly bringing substance of case, and parties before court, 
 sufficient, ii. 369. 
 
 IV. Of the Parties to Libel, ii. 370, 371. 
 
 to be brought by party entitled to aid, ii. 370. 
 
 not in name of one for benefit of another, ii. 370. 
 
 agent of absent owner may bring in his own name, ii. 370. 
 
 or in name of principal, ii. 370. 
 
 and subsequent power of attorney, a sufficient ratification, ii. 370. 
 
 if doubt exists as to party entitled to receive damages, amount to be paid into 
 
 registry to await proof of ownership, ii. 370. 
 consignee may sue in his own name, ii. 370. 
 so as to assignee of chose in action, ii. 370. 
 so, bailees of vessel for damage, ii. 370. 
 
 in seizure cases, to be brought in name of United States, ii. 371. 
 and collector not to be joined as libellant, ii. 371. 
 in cases of capture, in name of United States, ii. 371. 
 not in name of captor, ii. 371. 
 
 minors may sue with or without intervention of next friend, ii. 371. 
 if libellant in case of salvage sues for himself and others, libel should distinctly 
 
 state case of each, ii. 371. 
 if party to action dies, and it survives, his executor or administrator may 
 
 appear, ii. 371. 
 See VIII. Essential Elements of a Libel, ii. 379 - 387. 
 V. Joinder of Parties, ii. 372-374. 
 in some cases ordered by statute, ii. 372. 
 court may order, in others, ii. 372. 
 
 necessary if cause of action is joint contract, ii. 372, 373. 
 defendants in joint contract must be sued jointly, ii. 373. 
 different rule in torts, ii. 373. 
 if injury is joint, all must join, ii. 373. 
 defendants must be sued separately, ii. 373. 
 
 if trespasses are separate and distinct, suits to be brought severally, ii. 373. 
 and if joined, libel should be dismissed, ii. 373. 
 parties may be added or struck out by supplemental libel, ii. 374. 
 one part-owner may bring petitory suit against fraudulent possessor, ii. 374. 
 and court will decree possession to him, ii. 374. 
 non-joinder must be shown in district court, ii. 374. 
 
 and cannot be availed of as original objection when case has gone up on 
 appeal, ii. 374. 
 VI. Joinder of Actions ex contractu and ex delicto, ii. 374, 375. 
 admissible to a certain extent, ii. 374.
 
 916 APPENDIX. 
 
 SUITS IN ^VDMIRALTY — Continued. 
 
 not provided for by rules of Supreme Court, ii. 374. 
 
 additional wages given by statute for discharge of seamen in foreign port may 
 be recovered in a suit for wages, ii. 375. 
 
 count for wages joined in libel by mate against master for wrongful dismis- 
 sion, ii. 375. 
 
 claim against master and mate for assault, and against master for wages joined, 
 ii. 375. 
 
 contrary decisions thereon, ii. 375. 
 VII. Joinder of Actions in kem and in personam, ii. 376-378. 
 
 provided for by admiralty rules of Supreme Court, ii. 376. 
 
 in pilotage and collision cases, libellant may proceed against ship and master, 
 ii. 376. 
 
 or against ship alone, ii. 376. 
 
 or against owner alone, ii. 376. 
 
 or against master alone, ii. 376. 
 
 in suits for wages, against ship, freight and master, ii. 376. 
 
 or ship and freight, ii. 376. 
 
 or owner or master alone, ii. 376. 
 
 in assaults, suit is in personam only, ii. 376. 
 
 in mere marine hypothecation without marine interest, in rem, ii. 376. 
 
 or against master or owner alone, ii. 376. 
 
 in bottomry, in rem, against property, ii. 377. 
 
 or against proceeds wherever found, ii. 377. 
 
 in salvage, in rem, against property or proceeds, ii. 377. 
 
 or against party benefited, ii. 377. 
 
 in petitory suits, by arrest of ship and monition to adverse parties to appear, 
 ii. 377. 
 
 material men may proceed against ship and freight in rem, ii. 377, 378. 
 
 or against master or owner alone, ii. 378. 
 
 but in case of domestic ship, /?( personam only, ii. 378. 
 
 no suit will lie against owner in personam jointly with suit in rem, ii. 378. 
 
 no provisions as to contracts of affreightment, in rules of Supreme Court, ii. 378. 
 
 reference to be had to practice of several districts, ii. 378. 
 VIII. Essential Elements of a Libel, ii. 379-387. 
 
 name and legal description of judge and court, ii. 379. 
 
 name and legal description of libellant, ii. 379. 
 
 office, function, or relation, held by libellant, if right to action depends there- 
 on, ii. 379. 
 
 name and legal description of person or thing sued, ii. 379. 
 
 nature of cause, ii. 379. 
 
 if in rem, that property is within district, ii. 379. 
 
 li in personam, names, occupations, and residences of parties, ii. 379. 
 
 facts upon which suit is brought, ii. 379. 
 
 that premises are true, ii. 379. 
 
 and within jurisdiction of court, ii. 379. 
 
 prayer for process suited to case, ii. 379. 
 
 prayer for relief sought, ii. 379. 
 
 and which court is competent to give, ii. 379. 
 
 process prayed may be warrant to arrest defendant, ii. 379.
 
 INDEX. 917 
 
 SUITS IN ADMIRALTY — Continued. 
 
 with clause of attachment of goods if he cannot be found, ii. 380. 
 
 or if goods cannot be found, of credits and effects in hands of garnishees, ii. 380. 
 
 or simple monition in nature of summons, ii. 380. 
 
 relief prayed may be that defendant may be decreed to pay claim, ii. 380. 
 
 or that property be sold for forfeiture, ii. 380. 
 
 or to pay demand in libel, ii. 380. 
 
 or be decreed the property of libellant, ii. 380. 
 
 no forms of statement appropriated to different actions, ii. 380. 
 
 nor precise rules or precedents, ii. 380. 
 
 meaning of counts in libel, ii. 381, 382. 
 
 meaning of " propound " and " articulate," ii. 382. 
 
 stating part of libel may contain alternative, ii. 382, 383. 
 
 damages should be laid at definite sum, ii. 383. 
 
 amount claimed should not be unreasonably large, ii. 383. 
 
 and court not bound by it, if too small, ii. 383. 
 
 libel to be signed by libellant or agent, ii. 383. 
 
 and by proctor of court, ii. 383. 
 
 and verified by oath of libellant, ii. 383. 
 
 unless brought for government, ii. 383. 
 
 but this dependent on practice of different districts, ii. 383. 
 
 libellant may require answer on oath to interrogatories, ii. 384. 
 
 libel may be filed at any time, ii. 384. 
 
 and process issues at once, ii. 384. 
 
 but not till libel is filed in clerk's oflSce, ii. 384. 
 
 demand to be made before action, ii. 384, 385. 
 
 but action not defeated for want thereof, ii. 38.5. 
 
 difference between libel and information, ii. 385, 386. 
 
 information to propound, in distinct articles, causes of forfeiture, ii. 385. 
 
 and aver the same to be contrary to statute, ii. 385. 
 
 and conclude with prayer for process, ii. 385. 
 
 all steps must be critically accurate, ii. 385. 
 
 and carefully follow the statute, ii. 386. 
 
 sufficient if offence is described in the words of the law, ii. 386. 
 
 if words of statute are general, allegation to conform to legislative sense, ii. 
 386. 
 
 offence must be substantially stated, ii. 386. 
 
 not sufficient to refer to provisions of particular statute, ii. 386. 
 
 charge may be stated in alternative, if each alternative constitutes offence for 
 which the thing is forfeited, ii. 386. 
 
 origin of proceeding in rem, ii. 386, 387. 
 SUPPLIES. See Repairs, ii. 141 - 155, 322 - 337. 
 SUPREME COURT OF UNITED STATES, admiralty jurisdiction of, ii. 191-19.3. 
 
 no original, ii. 191. 
 
 but appellate from circuit court, ii. 191. 
 
 matter in dispute to exceed two thousand dollars, ii. 191. 
 
 this exclusive of costs and interest, ii. 191. 
 
 unless interest is specially claimed in libel, ii. 191, 192. 
 
 no appeal from district court lies to, ii. 191. 
 
 pro forma verdict in circuit court will give, ii. 192.
 
 918 INDEX. 
 
 SUPREME COURT OF UNITED STATES— Continued. 
 
 no agreement of parties will give where the amount is not sufiScient, ii. 192. 
 
 or if case is not of maritime nature, ii. 193. 
 
 may issue writs of prohibition when, ii. 193. 
 nature of, ii. 193. 
 
 See Circuit Court, ii. 193- 196 ; District Court, ii. 196-203 ; Appeals, ii. 496 - 
 508 ; Seizures, ii. 218 - 222. 
 SURVEY. See Sale, ii. 341, 342. 
 
 SUPERCARGO, master acting in the capacity of, ii. 20, 21. 
 SUPPLIES, as appurtenant to ship, i. 79, n. 
 
 liability of part-owners for, i. 100-105. See PartOumers, III. 
 owners for. See Owners. 
 
 bottomry bond for. See Bottomry and Respondentia, VI. 
 
 authority of master to bind owners by contract for, i. 140-147. See Master. 
 SURGEON, whether he may sue in admiralty for wages, ii. 182, 183. 
 SURVEY, to determine unseaworthiness of ship, i. 75 ; ii. 78, 79. 
 SURVEYORS. See Sale. 
 
 SURVIVORSHIP, no right of, among part-owners. See Part-Owners. 
 SWEAT, damage by, i. 261. 
 
 TENANTS IN COMMON, owners of ship are, i. 90, 91, 93. 
 TENDER, of goods, when operating as delivery, i. 220, 222. 
 TENDER, ii. 484-486. 
 
 common-law doctrine of, very precise, ii. 484. 
 
 different in admiralty, ii. 484. 
 
 offer to pay by one ready and able to pay, valid, ii. 484. 
 
 even if money was not produced, ii. 484. 
 
 and no matter in what form, ii. 484. 
 
 maker of, allowed reasonable time to procure means required, if objected to, 
 
 ii. 484. 
 plaintiff in premature action though succeeding will not get costs, ii. 484. 
 in England more strictly regarded in salvage, ii. 484, 485. 
 
 perhaps different in America, ii. 485. 
 costs cast upon proctor whose misconduct caused suit, ii. 485. 
 court may decree sum less than tendered, and rejected, ii. 485, 486. 
 in England money paid into court as, not paid out till conclusion of suit, ii. 
 485. 
 TERRITORY, act of, may create court with salvage jurisdiction, ii. 303. 
 THAMES, custom as to delivery of goods in the river, i. 230. 
 " THIRD OFF, NEW FOR OLD," not the rule of damages in collision, except, 
 
 i. 543. 
 TIDE. See Admiralty Jurisdiction. 
 
 TIMES AND DISTANCES, evidence as to, in collision, i. 537, 538. 
 TITLE, to vessels. See Rei/istry and Navigation Laws, and Sale of Ship. 
 TORTS AND TRESPASS, law of admiralty in cases of, ii. 347-351. 
 admiralty jurisdiction over torts committed on high seas, ii. 347. 
 and on waters navigable therefrom, on the lakes and navigable waters connect- 
 ing them, ii. 347.
 
 INDEX. 
 
 919 
 
 TORTS AND TRKSV ASS —Continued. 
 
 cases where jurisdiction has been sustained, ii. 347. 
 
 where steamboat ran against a pile negligently left in bed of river, ii. 347. 
 but not for loss to buildings by fire communicated by vessel, ii. 347. 
 tort being done within body of county, does not oust admiralty jurisdiction, 
 
 ii. 347. 
 what is a continuous action for which suit may be brought, ii. 347, 348. 
 right of passengers to room, food, and proper treatment, ii. 348. 
 if violated, damages recovered by libel, ii. 348. 
 parent may maintain libel for abduction of child, ii. 348. 
 against either master or ship-owner, ii. 348. 
 even though owner has no knowledge of fact, ii. 348. 
 where action for loss of services would not lie at law, none lies in admiralty, 
 
 ii. 348. 
 jurisdiction sustained in district court on libel alleging cruel treatment of 
 minor, ii. 349. 
 
 but denied in circuit, ii. 349. 
 this decision questioned, ii. 349. 
 action maintainable for wrongful conversion of whale on high seas, ii. 349. 
 
 what constitutes property in, ii. 349, 3.50. 
 for personal torts do not survive death of injured party, ii. 350. 
 
 even though right of action is given by State statute, ii. 351. 
 for redress of torts, admiralty may proceed in personam, ii. 351. 
 when injury is subject of maritime lien, it may proceed in rem, ii. 351. 
 this lien exists only on movable things engaged in navigation, ii. 351. 
 
 or upon things the subject of commerce, ii. 351. 
 if vessel is injured by running against bridge crossing navigable stream, action 
 
 in rem will not lie against bridge, ii. 351. 
 so, if bridge is injured, proceeding in rem will not lie against vessel by owners 
 of bridge, ii. 351. 
 TOWAGE, contribution for, i. 543. 
 TOW-BOATS, when common carriers, i. 247. 
 when responsible for collision, i. 549. 
 See Steam Tug. 
 TRANSFER, of vessel. Sec Sale of Ship. 
 
 TRANSSHIPMENT, of goods when voyage is once broken up, i. 231 - 239. See Car- 
 riage of Goods, IV. 
 TRIAL AND ITS INCIDENTS, ii. 435-454. 
 I. Trial generally, ii. 435. 
 
 seldom much delay in bringing, ii. 435. 
 
 except that required by circumstances of case, ii. 435. • 
 
 there must be four terms of court each year, ii. 435. 
 at places and times prescribed by law, ii. 435. 
 others may be ordered, ii. 435. 
 II. Evidence in Admiralty, ii. 435-454. 
 
 trial often proceeds on libel and answer, ii. 435. 
 
 oath of two witnesses not required to contradict answer, ii. 435, n. 2. 
 
 respondent's answers to interrogatories of libel competent, ii. 435. 
 
 but to be received with caution, ii. 436. 
 
 facts alleged in libel uncontradicted in answer, not taken as confessed, ii. 436.
 
 920 INDEX. 
 
 TRIAL AND ITS INCIDENTS — Continued. 
 
 but the contrary now perhaps the rule, ii. 436. 
 
 claim, under oath, inadmissible, ii. 436. 
 
 doubtful whether libel in another suit may be used as confession of libellant, 
 
 ii. 436. 
 cestui que trust may use record of recovery by trustee, to show recovery, ii. 436. 
 and title upon which it rested, ii. 436. 
 
 and State laws of evidence till recently, not applied, ii, 436. 
 interested witnesses excluded, except in case of necessity, ii. 436. 
 master an interested witness in suit in rem against ship to recover value of 
 
 goods, ii. 436. 
 but release from some part owners renders him competent, ii. 436. 
 so if the suit is in personam, ii. 436. 
 
 objection to interest of the master to bo made at the hearing, ii. 436. 
 provision as to State statutes, in deciding as to competency of witnesses, 
 
 ii. 436, 437. 
 no exclusion of, on account of color, ii. 437. 
 nor, in civil suits, because an interested party, ii. 437. 
 as to testimony of guardians, executors, or administrators, ii. 437. 
 declarations of master as to contract of affreightment admissible in suit against 
 
 owners, ii. 438. 
 otherwise as to officers and crew, ii. 438. 
 proceedings when rival salvors are lieard together, ii. 438. 
 formerly evidence submitted to nautical men for opinion, ii. 438. 
 practice now disallowed, ii. 439. 
 rule as to examination of expei'ts, ii. 439. 
 
 opinions of nautical men rejected in England in cause of salvage, ii. 439. 
 affidavits seldom admissible, ii. 439. 
 oral testimony formerly inadmissible, ii. 440. 
 but now admitted, ii. 440. 
 Depositions, ii. 440 - 454. 
 
 acts regulating, ii. 440, 441, 442, 450, 451, 452, 453. 
 may be taken, when persons live more than one hundred, miles from 
 place of trial, ii. 440, 441. 
 
 or is about to go out of United States, ii. 441. 
 
 or out of district to greater distance than one hundred miles, 
 
 ii. 441. 
 or is old and infirm, ii. 441. 
 before whom, ii. 441, 442, and notes, 
 adverse party must be notified, ii. 442. 
 if within one hundred miles, ii. 442. 
 and time allowed for travel, ii. 442. 
 notice to be given to agent or possessor of property when seized, ii. 443, 
 every deponent to be sworn, ii. 443. 
 
 and to subscribe to testimony after it is reduced to writing, ii. 444. 
 to be sealed up by magistrate, and returned to court with due cer- 
 tificate, ii. 444, 445. 
 to remain sealed till opened in court, ii. 445. 
 not to be used then, unless, ii. 446. 
 may be taken ex parte, when, ii. 446.
 
 INDEX. 921 
 
 TRIAL AND ITS INCIDENTS —Continued. 
 
 such viewed with suspicion, ii. 446. 
 and in some courts a continuance allowed, ii. 447. 
 authority to be construed strictly, ii. 447. 
 depositions in another suit on same subject-matter not admissible 
 
 unless, ii. 447. 
 of depositions taken by dedimus potestatem, ii. 447. 
 if cross-interrogatories are not put, defendant may object to, ii. 447. 
 if commission issues to four persons jointly, not enough, if taken by 
 three, ii. 448. 
 
 nor where commissioners attend in part, ii. 448. 
 admitted, when commissioners could not act, in accordance with 
 law, and taken by judge of foreign court, ii. 448. 
 if to two persons, jointly and severally, either may execute, ii. 448. 
 if one not named joins in taking, inadmissible, ii. 448. 
 if directed to be takeu in certain place, cannot be, in any other, 
 
 ii. 448. 
 magistrate may deliver personally, ii. 448. 
 if envelope is sealed, no other sealing necessary, ii. 448. 
 what magistrate's certificate must contain, ii. 448. 
 officer taking, prima facie supposed to be what he represents himself, 
 
 ii. 448. 
 no objection that foreigners do not act by sworn interpreter, though 
 
 deposition is in English, ii. 448. 
 each interrogatory to be answered, ii. 448, 449. 
 
 this applies to cross-interrogatories, ii. 449. 
 otherwise as to contingent interrogatories, ii. 449. 
 substantial answer sufficient, ii. 449. 
 statement by witness that affidavit is true does not introduce it, 
 
 ii. 449. 
 objections to competency of witness to be made when deposition is 
 taken, ii. 449. 
 
 otherwise considered waived, ii. 449, 
 if duly read in evidence, cannot be objected to, ii. 449. 
 time for taking evidence may be extended when, ii. 449. 
 but rules will not be changed, ii. 449, 450. 
 provisions of act of 1 792, ii. 450. 
 of letters rogatory, ii. 450. 
 as to issuing of subpcenas, ii. 451. 
 
 proper mode of taking testimony in circuit court, ii. 451. 
 should be oral, except, ii. 451. 
 the question discussed, ii. 451, 452. 
 
 further proof for, to be taken on oral questions and cross-ques- 
 tions, before a commissioner, unless, ii. 453. 
 no new evidence received in Supreme Court, except in admiralty and 
 prize causes, ii. 45.3. 
 
 manner of taking, ii. 453, 454, n. 
 TRUSTEE PROCESS, ii. 392-394. 
 TROVER. See Actions. 
 TRUSTS, under the registry acts, i. 44, 45.
 
 922 INDEX. 
 
 u. 
 
 UNITED STATES, when forfeited vessel vests in, i. 39. 
 
 goods of, ship-owner has claim on for contribution in general average, 
 i. 476. 
 
 but suit can only be brought in court of claims, i. 476. 
 
 suit cannot be brought against property of, in rem, i. 460; ii. 151, 200, 303. 
 UNLADING CARGO, time for, ii. 366, n. 3. 
 UNSEAWORTHINESS. See Seaworthiness. 
 USAGE. See Custom. 
 USURY. See Bottomry, Hypothecation by, II. 
 
 V. 
 
 VALIN, i. 6, 11. 
 
 VALUABLE GOODS, ship-owner's liability for loss of, ii. 123. 
 VENDEE AND VENDOR. See Sale of Ship ; Stoppage in Transitu. 
 VESSEL. See Ship. 
 
 of war, captain of not liable for injuries received by vessel colliding with, if 
 properly below at time, i. 532, n. 5. 
 VINNIUS, i. 6. 
 VOYAGES. See Seamen, II. 
 
 distinct and double, i. 307, 308. 
 
 agreement as to wages upon divided, ii. 40, n. 3. 
 
 W. 
 
 WAGES. See Smmen, ii. 47 - 74 ; Suit, ii. 364 - 369. 
 
 proceedings in rem for, under Illinois statute, i. 121, n. 
 
 who may sue for, ii. 182, 186. 
 
 in General Average, i. 386. 
 WAR, annuls contract for carriage of goods, i. 329-331. 
 WAREHOUSE, goods in; constructive possession of vendor, giving right to stop in 
 
 transitu. See Stoppage in Transitu, III., B. E. 
 WARP, right of vessel to obstruct navigable stream by, i. 547. 
 
 WARRANTY, rules of, as applied to sale of ship, i. 86 - 89. See Sale of Ship, VIII. 
 See Representations. 
 
 of seaworthiness, i. 284, 285 ; ii. 78, n. 1. See Carriage of Goods, I. 
 WATCH, duty of ship to keep. See Collision, i. 576, 577. 
 WATCHMAN, of vessel in port, has no lien for services, ii. 186. 
 WEIGHER, when quantity of cargo is to be ascertained by, holder of bill of lading 
 
 has no exclusive right to select, i. 231. 
 WELL AND CANAL, " navigable waters," ii. 168, and n. 
 WET GOODS, duty of master to unpack and dry, ii. 22. 
 WHALING VOYAGE, not foreign voyage, i. 30. 
 
 not trading voyage, i. 37, n. 
 
 to specified port " and elsewhere," i. 37, n. 
 
 hiring of sailors in, upon shares, ii. 57. 
 
 what papers whale ship should take, i. 31, 32. 
 
 in whose name whale ship should be registered, i. 34. 
 WHARF, delivery of goods on, i. 222, 223. Sec also Stoppage in Transitu.
 
 INDEX. 
 
 923 
 
 WHARFINGER, lien of, enforced in admiralty, ii. 188. 
 
 admiralty jurisdiction over contracts of, ii. 188. 
 WHARVES AND DOCKS, i. 599-608. 
 
 vessels frequently injured in, i. 599. 
 
 relation between owner of vessel and owner of wharf, i. 599-602. 
 
 coming to public wharf, vessel in nature of customer, i. 602. 
 
 at private wharf owner not responsible for injuries received by vessel except, 
 i. 602. 
 
 wharf and dock in public use to be safe, i. 602, and note 2. 
 
 no warranty making owner responsible, i. 604. 
 
 nor liable for utmost possible care, i. 604. 
 
 but for due care, i. 604. 
 
 wharf must be kept in repair, i. 605. 
 
 not to be unduly encumbered, i. 605. 
 
 if encumbered at night, to be lighted, i. 605. 
 
 suitable wharfinger to be employed, i. 605. 
 
 dock to be kept free from obstructions, i. 605. 
 
 if any part dangerous, precise instructions how to avoid, to be given, 
 i. 605. 
 
 illustrative case, i. 605 - 608. 
 WHARFAGK, liability of owners of chartered ship for, i. 126, 300. 
 WISBUY, laws of, i. 6, 10. 
 
 " WITH ALL CONVENIENT SPEED," meaning of, i. 327. 
 WITNESSES. See Tmd, ii. 435 - 454. 
 WOOD, for fuel, whether material men have lien for, ii. 143. 
 WOMAN, serving on board ship has rights and disabilities of sailor, ii. 183. 
 WORKING DAYS. See Lay Days. 
 WRECK, total, warranting sale of ship, i. 70, n. 
 
 sale by foreign court after, i. 78. 
 WRIT OF PROHIBITION from Supreme Court to district court, ii. 193. 
 WRITERS, principal foreign, upon shipping, i. 3- 18. 
 
 INDEX TO THE APPENDIX. 
 
 ACTS OF CONGRESS : 
 
 concerning Pilots ; 1789, Chap. IX. (1 U. S. Stats, at Large, 53), ii. 511. 
 for the Punishment of certain Crimes against the United States ; 1790, Chap, 
 
 IX. (1 U. S. Stats, at Large, 112), ii. 511-513. 
 for the Government and Regulation of Seamen in the Merchant Service; 1790, 
 
 Chap. XXIX. (1 U. S. Stats, at Large, 131), ii 513-519. 
 concerning Consuls and ViceConsuls ; 1792, Chap. XXIV. (I U. S. Stats. 
 
 at Large, 254), ii. 519-522. 
 concerning the Registry and Recording of Ships and Vessels ; 1792, Chap. I. 
 
 (1 U. S. Stats at Large, 287), ii. 522-537. 
 for enrolling and licensing Ships or Vessels to be employed in the Coasting 
 
 Trade and Fisheries, and for regulating the same; 1793, Chap. VIII. (I U. 
 
 S. Stats, at Large, 305), ii. 537-554.
 
 924 INDEX. 
 
 ACTS OF CONGRESS — Continued^ 
 
 for the Relief and Protection of American Seamen ; 1796, Chap. XXXVI. (1 U. 
 S. Stats, at Large, 477), ii. 5.54 - 556. 
 
 for providing Passports for the Ships and Vessels of the United States ; 1796, 
 Chap. XLV. (I U. S. Stats, at Large, 489), ii. 557. 
 
 in addition to an Act, intitixled " An Act concerning the Registering and Re- 
 cording of Ships or Vessels," and to an Act,' intituled " An Act for enrolling 
 and licensing Ships and Vessels employed in the Coasting Trade and Fish- 
 eries, and for regulating the same"; 1797, Chap. VIL (1 U. S. Stats, at 
 Large, 498), ii. 558. 
 
 in addition to an Act, intituled "An Act concerning the Registering and Re- 
 cording of Ships and Vessels"; 1797, Chap. V. (1 U. S. Stats, at Large, 
 523), ii. 558. 
 
 for the Relief of sick and disabled Seamen ; 1798, Chap. LXXVII. (1 U. S, 
 Stats, at Large, 605), ii. 559, 560. 
 
 in addition to "An Act for the Relief of sick and disabled Seamen"; 1799, 
 Chap. XXXVI. (1 U. S. Stats, at Large, 729), ii. 560, 561. 
 
 to amend an Act intituled " An Act for the Relief of sick and disabled Sea- 
 men," and for other Purposes ; 1802, Chap. LI. (2 U. S. Stats, at Large, 
 192), ii. 561-563. 
 
 supplementary to the " Act concerning Consuls and Vice-Consuls, and for the 
 further Protection of American Seamen"; 1803, Chap. IX. (2 U. S. Stats, 
 at Large, 203), ii. 563 - 566. 
 
 supplementary to the Act, intituled " An Act providing Passports for the Ships 
 and Vessels of the United States" ; 1803, Chap. XVI. (2 U. S. Stats, at 
 Large, 208), ii. 566. 
 
 in addition to the Act, intituled " An Act concerning the Registering and Re- 
 cording of Ships and Vessels of the United States," and to the Act, intituled 
 "An Act to regulate the Collection of Duties on Imports and Tonnage"; 
 1803, Chap. XVIIL (2 U. S. Stats, at Large, 209), ii. 566 - 568. 
 
 in addition to the Act, intituled "An Act for the Punishment of certain Crimes 
 against the United States " ; 1804, Chap. XL. (2 U. S. Stats, at Large, 290), 
 ii. 568. 
 
 to amend the Act, intituled " An Act concerning the Registering and Recording 
 of Ships and Vessels " ; 1804, Chap. LII. (2 U. S. Stats, at Large, 296), ii. 
 568, 569. 
 
 to amend the Act, intituled " An Act for the Government and Regulation of 
 Seamen in the Merchants' Service "; 1805, Chap. XXVIII. (2 U. S. Stats, 
 at Large, 330), ii. 569. 
 
 to prevent the issuing of Sea Letters, except to certain Vessels ; 1810, Chap. 
 XIX. (2 U. S. Stats, at Large, 568), ii. 569, 570. 
 
 establishing Navy Hospitals; 1811, Chap. XXVI. (2 U. S. Stats, at Large, 
 650), ii. 571, 572. 
 
 in addition to the Act, intituled " An Act supplementary to the Act concern- 
 ing Consuls and Vice-Consuls," and for the further Protection of American 
 Seamen ; 1811, Chap. XXVIIL (2 U. S. Stats, at Large, 651), ii. 571. 
 
 respecting the Enrolling and Licensing of Steamboats; 1812, Chap. XL. (2 
 U. S. Stats, at Large, 694), ii. 571, 572. 
 
 for the Regulation of Seamen on board the public and private Vessels of the 
 United States ; 1813, Chap. XLII (2 U. S. Stats. Large, 809), ii. 572-575.
 
 INDEX. 925 
 
 ACTS OF CONGRESS— Con^mweJ. 
 
 for the Government of Persons in certain Fisheries'; 1813, Chap. II. (3 U. S. 
 
 Stats, at Large, 2), ii. 575, 576. 
 laying a Duty on imported Salt ; granting a Bounty on Pickled Fish exported, 
 
 and Allowances to certain Vessels employed in the Fisheries ; 1813, Chap. 
 
 XXXV. (3 U. S. Stats, at Large, 49), ii. 576 - 580. 
 to continue in force " An Act entitled, An Act laying a Duty on imported 
 
 Salt, granting a Bounty on Pickled Fish exported, and Allowances to cer- 
 tain Vessels employed in the Fisheries " ; 1816, Chap. XIV. (3 U. S. Stats. 
 
 at Large, 254), ii. 580. 
 concerning the Navigation of the United States; 1817, Chap. XXXI. (3 U. 
 
 S. Stats, at Large, 351), ii. 581, 582. 
 authorizing the Deposit of the Papers of foreign Vessels, with the Consul of 
 
 their respective Nations ; 1817, Chap. XL. (3 U'. S. Stats, at Large, 362), 
 
 ii. 583. 
 supplementary to the Acts concerning the Coasting Trade; 1819, Chap. 
 
 XLVJII. (3 U. S. Stats, at Large, 492), ii. 583, 584. 
 to protect the Commerce of the United States, and punish the Crime of Piracy ; 
 
 1819, Chap. LXXVII. (3 U. S. Stats, at Large, 510), ii. 584, 585. 
 in Addition to, and Alteration of an Act, entitled " An Act laying a Duty on 
 
 imported Salt, granting a Bounty on Pickled Fish exported, and Allowances 
 
 to certain Vessels employed in the Fisheries " ; 1818, Chap. LXXXIX. (3 
 
 U. S. Stats, at Large, 520), ii. 586. 
 to continue in force " An Act to protect the Commerce of the United States, 
 
 and punish the Crime of Piracy," and also to make further Provisions for 
 
 punishing the Crime of Piracy; 1820, Chap. CXIII. (3 U. S. Stats, at 
 
 Large, 600), ii. 586 - 588. 
 further to regulate the Entry of Merchandise imported into the United States 
 
 from any adjacent Territory; 1821, Chap. XIV. (3 U. S. Stats, at Large, 
 
 616), ii. 588, 589. 
 in Addition to " An Act to continue in force ' An Act to protect the Commerce 
 
 of the United States and punish the Crime of Piracy,' and, also, to make 
 
 further Provision for punishing the Crime of Piracy"; 1823, Chap. VII. 
 
 (3 U. S. Stats, at Large, 721), ii. 589. 
 to amend an Act, entitled " And [An] Act further to regulate the Entry of 
 
 Merchandise imported into the United States from any adjacent Territory " ; 
 
 1823, Chap. LVIIL (3 U. S, Stats, at Large, 781), ii. 590. 
 more effectually to provide for the Punishment of certain Crimes against the 
 
 United States, and for other Purposes; 1825, Chap. LXV. (4 U. S. Stats. 
 
 at Large, 115), ii. 591 -594. 
 to authorize the Register, or Enrolment and License to be issued in the Name 
 
 of the President or Secretary of any incorporated Company owning a Steam- 
 boat or Vessel; 1825, Chap. XCIX. (4 U. S. Stats, at Large, 129), ii. 594, 
 
 595. 
 concerning Wrecks on the Coast of Florida; 1825, Chap. CVII. (4 U.S. 
 
 Stats, at Large, 132), ii. 595. 
 to authorize the Licensing of Vessels to be employed in the Mackerel Fishery ; 
 
 1828, Chap. CXIX. (4 U. S. Stats, at Large, 312), ii. 595, 596. 
 to provide for the Apprehension and Delivery of Deserters from certain Foreign 
 
 Vessels, in the Ports of the United States ; 1829, Chap. XLI. (4 U. S. Stats. 
 
 .at Large, 359), ii. 596.
 
 926 INDEX. 
 
 ACTS OF COl^G'R'ESS — Continued. 
 
 to authorize Surveyors, under the Direction of the Secretary of the Treasury, 
 to enrol and license Ships or Vessels to be employed in the Coasting Trade 
 and Fisheries; 1830, Chap. XIV. (4 U. S. Stats, at Large, 372), ii. 597. 
 
 to repeal the Charges imposed on Passports and Clearances ; 1831, Chap. XX. 
 (4 U. S. Stats, at Large, 441), ii. 597. 
 
 to regulate the Foreign and Coasting Trade on the Northern, Northeastern, 
 and Northwestern Frontiers of the United States, and for other Purposes ; 
 1831, Chap. XCVIIL (4 U. S. Stats, at Large, 487), ii. 597, 598. 
 
 concerning Vessels emplo^-ed in the Whale Fishery; 1831, Chap. CXV. (4 
 U. S. Stats, at Large, 492), ii. 598, 599. 
 
 in Amendment of the Acts for the Punishment of Offences against the United 
 Stales ; 1835, Chap. XL. (4 U. S. Stats, at Large, 775), ii. 599, 600. 
 
 in Addition to the Act of the twenty-fourth of May, one thousand eight hun- 
 dred and twenty-eight, entitled, " An Act to authorize the Licensing of Ves- 
 sels to be employed in the Mackerel Fishery" ; 1836, Chap. LV. (5 U. S. 
 Stats, at Large, 16), ii. 600, 601. 
 
 to provide for the Enlistment of Boys for the Naval Service, and to extend the 
 Term of the Enlistment of Seamen; 1837, Chap. XXI. (5 U. S. Stats, at 
 Large, 153), ii. 601, 602. 
 
 concerning Pilots; 1837, Chap. XXII. (5 U. S. Stats, at Large, 153), ii. 602. 
 
 to authorize the President of the United States to cause the public Vessels to 
 cruise upon the Coast in the Winter Season, and to relieve distressed Naviga- 
 tors ; 1837, Chap. I. (5 U. S. Stats, at Large, 208), ii. 602. 
 
 to provide for the better Security of the Lives of Passengers on board of Ves- 
 sels propelled in whole or in part by Steam; 1838, Chap. CXCI. (5 U. S. 
 Stats, at Large, 304), ii. 602-606. 
 
 to cancel the Bonds given to secure the Duties upon Vessels and their Cargoes, 
 employed in the Whale Fishery, and to make Registers lawful Papers for such 
 Vessels; 1840, Chap. VI. (5 U. S. Stats, at Large, 370), ii. 606. 
 
 in Addition to the several Acts regulating the Shipment and Discharge of Sea- 
 men, and the Duties of Consuls; 1840, Chap. XL VIII. (5 U. S. Stats, at 
 Large, 394), ii. 607-610. 
 
 supplementary to an Act, entitled " An Act to establish the Judicial Courts 
 of the United States," passed the 24th of September, 1789; 1842, Chap. 
 CLXXXVm. (5 U. S. Stats, at Large, 516), ii. 611-613. 
 
 amendatory of "An Act for the Relief of sick and disabled Seamen"; 
 1843, Chap. XLIX. (5 U. S. Stats, at Large, 602), ii. 613. 
 
 to modify the Act, entitled " An Art to provide for the better Security of the 
 Lives of Passengers on board of Vessels propelled in whole or in part by 
 Steam," approved July 7, 1838; 1843, Chap. XCIV. (5 U. S. Stats, at 
 Large, 626), ii. 613-615. 
 
 to amend the Act, entitled "An Act to provide for the Enlistment of Boys for 
 the Naval Service, and to extend the Term of Enlistment of Seamen " ; 1845, 
 Chap. XVIL (5 U. S. Stats, at Large, 725), ii. 615, 616. 
 
 extending the Jurisdiction of the District Courts to certain Cases upon the 
 Lakes and Navigable Waters connecting the same; 1845, Chap. XX. (5 U. 
 S. Stats, at Large, 726), ii. 616, 617. 
 
 to exempt Canal Boats from the Payment of Fees and Hospital Money; 1846, 
 Chap. LX. (9 U. S. Stats, at Large, 38), ii. 617.
 
 INDEX. 927 
 
 ACTS OF CO'SGUESS— Continued. 
 
 to regulate the Proceedings in the Circuit and District Courts of the United 
 States, and for other Purposes ; 1846, Chap. XCVIII. (9 U. S. Stats, at 
 
 Large, 72), ii. 617-621. 
 to provide for the Punishment of Piracy in certain Cases; 1847, Chap. LI. (9 
 
 U. S. Stats, at Large, 175), ii. 621. 
 for the Reduction of the Costs and Expenses of Proceedings in Admiralty 
 
 against Ships and Vessels ; 1847, Chap. LV. (9 U. S. Stats, at Large, 181), 
 
 ii. 621, 622. 
 extending Privileges to American Vessels engaged in a certain mentioned 
 
 Trade, and for other Purposes; 1848, Chap. XLVIII. (9 U. S. Stats, at 
 
 Large, 232), ii. 622, 623. 
 to authorize the Secretary of the Treasury to license Yachts, and for other 
 
 Purposes ; 1848, Chap. CXLI. (9 U. S. Stats, at Large, 274), ii. 623. 
 regulations to be observed by Vessels, Steamboats, etc., navigating the Northern 
 
 or Northwestern Lakes; 1849, Chap. CV. (9 U. S. Stats, at Large, 382), 
 
 ii. 623, 624. 
 to provide for Recording the Conveyances of Vessels, and for other Purposes ; 
 
 18.50, Chap. XXVII. (9 U. S. Stats, at Large, 440), ii. 624, 625. 
 making Appropriations for tiie Naval Service for the year ending the thirtieth 
 
 day of June, one thousand eight hundred and fifty-one, and abolishing Flog- 
 ging in the Navy and on board Vessels of Commerce; 1850, Chap. LXXX. 
 
 (9 U. S. Stats, at Large, 514), ii. 626. 
 to limit the Liability of Ship-Owners, and for other Purposes ; 1851, Chap. 
 
 XLIII. (9 U. S. Stats, at Large, 635), ii. 626 - 628. 
 to amend An Act, entitled "An Act to provide for the better Security of the 
 
 Lives of Passengers on board Vessels propelled in whole or in part by 
 
 Steam," and for other Purposes ; 1852, Chap. CVI. (10 U. S. Stats, at 
 
 Large, 61), ii. 628-647. 
 to establish certain Post-Roads, and for other Purposes; 1852, Chap. CXIII. 
 
 (10 U. S. Stats, at Large, 140), ii. 647, 648, 
 authorizing the Secretary of the Treasury to issue Registers to Vessels in cer- 
 tain Cases ; 1852, Chap. IV. (10 U. S. Stats, at Large, 149), ii. 648. 
 Compensation to Seamen sent Home as Witnesses ; 1853, Chap. LXXX. (10 U. 
 
 S. Stats, at Large, 168), ii. 649. 
 to supply Deficiencies in the Appropriations for the Service of the fiscal Year 
 
 ending the thirtieth of June, one thousand eight hundred and fifty-three ; 
 
 1853, Chap. XCVI. (10 U. S. Stats, at Large, 182), ii. 649. 
 in Amendment of a Joint Resolution relating to the Duties of Inspectors of 
 
 Steamboats, approved January 7, 1853; No. 13 (10 U. S. Stats, at Large, 
 262), ii. 649, 650. 
 concerning the Apprehension and Delivery of Deserters from foreign Vessels, 
 
 in the Ports of the United States; 1855, Chap. CXXIII. (10 U. S. Stats, at 
 
 Large, 614), ii. 650. 
 to remodel the Diplomatic and Consular Systems of the United States; 1855, 
 
 Chap. CXXXIIL (10 U. S. Stats, at Large, 624), ii. 651, 652. 
 to regulate the Carriage of Passengers in Steamships and other Vessels; 1855, 
 
 Chap. CCXIIL (10 U. S. Stats, at Large, 715), ii. 653-661. 
 to regulate the Diplomatic and Consular Systems of the United States, and to 
 
 provide for the Discharge and Desertion of Seamen ; 1856, Chap. CXXVII. 
 
 (U U. S. Stats, at Large, 59), ii. 661-663.
 
 928 INDEX. 
 
 # 
 
 ACTS OF CO'SGU^SS— Continued. 
 
 to repeal the Fifth Section of an Act entitled " An Act to authorize the 
 Register or Enrolment and License to be issued in the Name of the 
 President or Secretary of any incorporated Company owning a Steamboat or 
 Vessel," approved March 3, 1825; 1858, Chap. CXLV. (11 U. S. Sta.ts. at 
 Large, 313), ii. 664. 
 
 to repeal An Act entitled " An Act authorizing the Secretary of the Treasury 
 to change the Names of Vessels in certain Cases," approved March 5, 
 1856, 1859, Chap. VIIL (11 U. S. Stats, at Large, 375), ii. 664. 
 
 to amend An Act entitled "An Act to regulate the Carriage of Passengers in 
 Steamships and other Vessels," approved March 3, 1855, for the better 
 Protection of Female Passengers and other Purposes ; 1860, Chap. VIIL 
 (12 U. S. Stats, at Large, 3), ii. 664, 665. 
 
 to alter and regulate the Navy Ration; 1861, Chap. VII. (12 U. S. Stats, at 
 Large, 264), ii. 666, 667. 
 
 supplementary to An Act entitled "An Act to protect the Commerce of the 
 United States, and punish the Crime of Piracy" ; 1861, Chap. XL VIIL (12 
 U. S. Stats, at Large, 314), ii. 667, 668. 
 
 to prohibit the " Coolie Trade " by American Citizens in American Vessels ; 
 
 1862, Chap. XXVII. (12 U. S. Stats, at Large, 340), ii. 668-670. 
 making additional Appropriations for the Naval Service for the Year ending 
 
 June 30, 1862; 1862, Chap. LVII. (12 U. S. Stats, at Large, 381), ii. 670. 
 making Appropriations for the Naval Service for the Year ending 30 June, 
 
 1863, and for other Purposes; 1862, Chap. CLXIV. (12 U. S. Stats, at 
 Large, 565), ii. 670, 671. 
 
 to protect the Liens upon Vessels in certain Cases and for other Purposes ; 
 
 1863, Chap. XC. (12 U. S. Stats, at Large, 762), ii. 671. 
 
 to facilitate the taking of Depositions within the United States, to be used in 
 the Courts of other Countries, and for other Purposes; 1863, Chap. XCV. 
 (12 U. S. Stats, at Large, 769), ii. 671, 672. 
 
 to provide for carrying the Mails from the United States to foreign Ports, and 
 for other Purposes; 1864, Chap. XL. (13 U. S. Stats, at Large, 36), ii. 
 673, 674. 
 
 to provide for the Collection of Hospital Dues from Vessels of the United 
 States, sold or transferred in foreign Ports or Waters ; 1 864, Chap. LXX. 
 (13 U. S. Stats, at Large, 61), ii. 674, 675. 
 
 for the Prevention and Punishment of Frauds in Relation to the Names 
 of Vessels; 1864, Chap. LXXVIIL (13 U. S. Stats, at Large, 63), ii. 
 675. 
 
 to regulate the Admeasurement of Tonnage of Ships and Vessels of the 
 United States; 1864, Chap LXXXVII. (13 U. S. Stats, at Large, 69), ii. 
 676-680. 
 
 to create an additional supervising Inspector of Steamboats, and two local 
 Inspectors of Steamboats for the Collection District of Memjjhis, Tennessee, 
 and two local Inspectors for the Collection District of Oregon, and for 
 other Purposes; 1864, Chap. CXIII. (13 U.S. Stats, at Large, 120), ii. 
 680, 681. 
 
 to provide for the Execution of Treaties between the United States and 
 foreign Nations respecting Consular Jurisdiction over the Crews of Ves- 
 sels of such foreign Nations in the Waters and Ports of the United States ; 
 
 1864, Chap. CXVL (13 U. S. Stats, at Large, 121), ii. 681, 682,
 
 INDEX. 929 
 
 ACTS OF CONGRESS— Continued. 
 
 to provide for the summary Trial of Minor Offences against the Laws of the 
 United States; 1864, Chap. CXXI. (13 U. S. Stats, at Large, 124), ii. 
 682, 684. 
 
 to regulate the foreign Coasting Trade on the Northern, Northeastern, and 
 Northwestern Frontiers of the United States, and for other Purposes ; 1864, 
 Chap. CXXX. (13 U. S. Stats, at Large, 134), ii. 684. 
 
 repealing certain Provisions of Law, concerning Seamen on board public and 
 private Vessels of the United States; 1864, Chap. CLXX. (13 U. S. Stats, 
 at Large, 201), ii. 684, 685. 
 
 to regulate Prize Proceedings and the Distribution of Prize Money, and for 
 other Purposes; 1864, Chap. CLXXIV. (13 U. S. Stats, at Large, 306), 
 ii. 685-698. 
 
 to further regulate the Carriage of Passengers in Steamships and other Ves- 
 sels ; 1864, Chap. CCXLIX. (13 U. S. Stats, at Large, .390), ii. 698 -700. 
 
 relating to the Enrolment and License of certain Vessels; 1865, Chap. 
 LXIX. (13 U. S. Stats, at Large, 444), ii. 701. 
 
 to amend an Act entitled " An Act to regulate the Admeasurement of 
 Tonnage of Ships and Vessels of the United States," approved May 6, 
 1864; 1865, Chap. LXX. (13 U. S. Stats, at Large, 444), ii. 701. 
 
 to provide for two assistant local Inspectors of Steamboats in the City of New 
 York, and for two local Inspectors at Galena, Illinois, and to re-establish the 
 Board of local Inspectors at Wheeling; and also to amend the Act ap- 
 proved June 8, 1864, entitled, "An Act to create an additional Inspector 
 of Steamboats and two local Inspectors of Steamboats for Collection Dis- 
 tricts of Memphis and Oregon, and for other Purposes"; 1865, Chap. 
 XCIV. (13 U. S. Stats, at Large, 514), ii. 702. 
 
 to regulate the Fees of Custom- House Officers on the Northern, Northeastern, 
 and Northwestern Frontiers of the United States; 1865, Chap. CI. (13 U. 
 S. Stats, at Large, 518), ii. 702-704. 
 
 to extend the Provisions of the First Section of " An Act for the Government 
 of Persons in Certain Fisheries," approved June 19,1813; 1865, Chap. 
 CXVIL (13 U. S. Stats, at Large, 535), ii. 704. 
 
 to regulate the Registering of Vessels; 1866, Chap. VIIL (14 U. S. Stats, at 
 Large, 3), ii. 704, 705. 
 
 to prevent and punish Kidnapping; 1866, Chap. LXXXVI. (14 U. S. Stats, 
 at Large, 50), ii. 705. 
 
 to regulate the Transportation of Nitro- Glycerine, or Glynoin Oil, and other 
 Substances, therein named; 1866, Chap. CLXII. (14 U. S. Stats, at Large, 
 81), ii. 705-707. 
 
 relating to Pilots and Pilot Regulations ; 1866, Chap. CLXXVII. (14 U. S. 
 Stats, at Large, 93), ii. 707. 
 
 to regulate the Registering of Vessels; 1866, Chap. CCXIII. (14 U. S. 
 Stats at Large, 212), ii. 707. 
 
 to further provide for the Safety of the Lives of Passengers on board of Vessels 
 propelled in whole or in part by Steam, to regulate the Salaries of Steam- 
 boat Inspectors, and for other Purposes ; 1866, Chap, CCXXXIV. (14 U. 
 S. Stats, at Large, 227), ii. 707, 710. 
 
 to prevent the Wearing of Sheath-Ktiives by American Seamen ; 1866, Chap. 
 CCLXXXVI. (14 U. S. Stats, at Large, 304), ii. 710, 711. 
 VOL. II. 59
 
 930 INDEX. 
 
 ACTS OF CONGRESS — Continued. 
 
 to protect the Revenue, and for other Purposes ; 1866, Chap. CCXCVIII. (14 
 U. S. Stats, at Large, 328), ii. 711. 
 
 to amend the Act entitled " An Act to provide for the Safety of the Lives of 
 Passengers on board of Vessels propelled in whole or in part by Steam, to 
 regulate the Salaries of Steamboat Inspectors, and for other Purposes " ; 
 approved July 25, 1866 ; 1867, Chap. LXXXIIL (14 U. S. Stats at Large, 
 411), ii. 711, 712, 
 
 Amending the Ninth Section of " An Act to amend An Act entitled ' An 
 Act to provide for the better Security of the Lives of Passengers on board 
 of Vessels propelled in whole or in part by Steam,' and for other Purposes," 
 approved August 30, 1852 ; Resolution X. (15 U. S. Stats, at Large, 22), 
 ii. 712. 
 
 to amend Section Five of an Act entitled " An Act concerning the Register- 
 ing and Recording of Ships or Vessels," approved December 31, 1792; 
 1868, Chap. CXXXVII. (15 U. S. Stats at Large, 84), ii. 712. 
 
 FORMS IN ADMIRALTY, ii. 763-771. 
 the libel, ii. 763-765. 
 the claim, ii. 765, 766. 
 the answer, ii. 766, 768, 771. 
 
 suit in rem under charter-party, for non-delivery of goods, ii. 768. 
 suit in personam for breach of charter-party, or of Contract of Affreightment, 
 
 ii. 768. 
 suit in rem for freight, ii. 768. 
 
 in personam for freight, ii. 769. 
 
 in rem for supplies or repairs, ii. 769. 
 
 in personam for supplies or repairs, ii. 769. 
 suits under Act of 1845, ii. 769. 
 
 for wages, ii. 769. 
 
 on bottomry bonds, ii. 769, 770. 
 
 for salvage, ii. 770. 
 
 in causes of collision, ii. 770. 
 
 in a cause of damage for an assault, ii. 770. 
 possessory suits, ii. 770, 771. 
 petition for the sale of a vessel, ii. 771. 
 suits against proceeds in the registry, ii. 771. 
 
 PILOTAGE REGULATIONS : 
 
 Pilotage Regulations for the Port of New York, (passed by the Legislature, 
 June 28, 1853, April 11, 1854, April 4, 1857, March 17, 186.5, and May 16, 
 1867), ii. 713-720. 
 
 By-Laws of the Commissioners of Pilots for the Port of New York, ii. 720 - 
 725. 
 
 Rates of Pilotage for the Port of New York, ii. 725, 726. 
 
 Pilotage Act of Massachusetts ; 1862, Chap. CLXXVI., ii. 727-731. 
 
 General Pilotage Regulations of the State of Massachusetts, ii. 731 -734. 
 
 Pilotage Regulations of the Harbor of Boston (viz., all Places or Landings ac- 
 cessible to Vessels from Sea included between Nahant Rock on the north, and 
 Point Alderton on the south), ii. 734, 735.
 
 APPENDIX. 931 
 
 PILOTAGE REGULATIONS — Continued. 
 
 Rates of Pilotage for the Port of Boston, ii. 735, 736. 
 Rates for Division of Earnings among Pilots, ii. 738. 
 
 Pilotage Regulations for Nantucket Shoals, Vineyard Sound, and Ports bor- 
 dering thereon, Buzzard's Bay and Harbors bordering thereon, ii. 739 - 741. 
 New Bedford and Fair Haven, ii. 740, 741. 
 Pilotage Regulations and Fees for — 
 
 Provincetown, ii. 741, 742. 
 
 Plymouth, ii. 742. 
 
 Newburyport, ii. 742. 
 
 Rockport, Lane's Cove, and Annisquam, ii. 743. 
 
 Gloucester, ii. 743. 
 
 Salem and Beverly, ii. 743, 744. 
 
 Marblehead, ii. 744. 
 
 Taunton River, ii. 744. 
 
 Merrimack River and Harbors, ii. 745. 
 
 Dorchester and Neponset, ii. 745. 
 
 Hingham, Weymouth, and Quincy, ii. 745. 
 
 Lynn, ii. 745. 
 
 Mystic River, ii. 745. 
 
 Charles River, ii. 746. 
 
 RULES OF PRACTICE, of the Courts of the United States in Causes of Admiralty 
 and Maritime Jurisdiction on the Instance side of the Court, in pursuance of the Act 
 of 23d of August, 1842, c. 188, ii. 747-758. 
 ADDITIONAL ADMIRALTY RULES. December Term, 1850, ii. 758, 759. 
 December Term, 1854, ii. 759-761. 
 " " 1858, ii. 761. 
 
 " 1867, ii. 762. 
 DISTRICT COURT RULES IN ADMIRALTY, MASSACHUSETTS DIS- 
 TRICT, ii. 763. 
 
 Admiralty Rule, adopted June 27, 1855, ii. 763. 
 
 THE END. 
 
 Cambridge : Printed by Welch, Bigelow, & Co-
 
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