4''" hH/h \^-y'V\'i T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF OK- Rc/avW-i ^^mmiim^Smillim^ TREATISE ON MARITIME LAW. BT HENRY FLANDERS. BOSTON: LITTLE, BROWN AND COMPANY. 1852. Entered acc(#(ling to Act of Congress, in the year 1852, by ! Henry Flanders, In the Clerk's Office of the District Court of the United States, for the Eastern District of Pennsylvania. T BIVEKSIDE, CAMBRIDGE: PBIKTED BT H. O. HOUGHTON AND COMPANY. TO THE HONORABLE JOEL PARKER, LL.D., ROTALL PROFESSOR OF LAW IN HARVARD UNIVERSITY, THIS WORK IS INSCRIBED, AS A VERY SINCERE, ALTHOUGH INADEQUATE TRIBUTE OF RESPECT, FOR HIS EMINENT VIRTUES AS A CITIZEN, AND HIS DISTINGUISHED CHARACTER AS A JURIST, BY HIS OBLIGED AND GRATEFUL SERVANT, THE AUTHOR. n^i^i^'? PREFACE. The object of the following work is to embody the principles of the Maritime Law, upon the subjects which it embraces. In stating doctrines, the author has freely employed the very language of the Reports, those original fountains of the law, and has endeavored to illustrate principles by a liberal recital of the cases, where they have been either established or applied. The decisions of the common-law Courts, which are cited in various parts of the work, have in most instances, expounded the maritime law, in a free and enlightened spirit, and furnish a safe guide to those tribunals, whose special province it is to administer that branch of our jurisprudence. With an anxious desire to make the work acceptable to the Profession, the author is sensible that he may have failed to supply a want, which it is supposed to feel, or to satisfy its enlightened judgment. He submits it, how- ever, to its indulgence, and with the hope that it may in some measure prove to be useful. PniLADELruiA, 1852. a* CONTENTS. PAGE Index to Cases, and Authorities, ... ix. et seq. CHAPTER I. - Of the History of Maritime Law, .... 1 -27 CHAPTER II. Of the Sea ; and herein, of the Jurisdictional Waters OF a State, and of the Jurisdiction of a Nation over its Vessels, 28-57 CHAPTER III. Of the Title to Merchant Ships ; and herein, 1. Of Title, by purchase from the owner, . . .60-98 2. Of Title by purchase from the master, . . 98- 121 3. Of Title by capture and condemnation, . . 121 - 130 CHAPTER IV. Of the Contract of Affreightment, by Charter- party, 131-161 CHAPTER V. Of the Dissolution of the Contract of Affreight- ment, 162-173 Vlli CONTENTS. CHAPTER VI. Of the Master's Atjthokity with respect to Repairs AND Supplies; and herein, of Implied Liens, . 174-196 CHAPTER VII. Of Bottomry and Respondentia Bonds, . . 197-231 CHAPTER VIII. Of General Average, 232 1. When a Jettison is justifiable, .... 233-240 2. What damages, losses, and expenses are objects of con- tribution, 241-271 3. What must contribute, and according to what rule, 272 - 287 CHAPTER IX. Of Collision, 288-315 CHAPTER X. Of Salvage, . . . . . . . .316-352 CHAPTER XI. Of the Mariner's Contract, 353 - 374 CHAPTER XII. Of the Earning and Payment of Wages ; and herein, OF the Forfeiture of Wages, .... 375-417 TABLE OF CASES AND AUTHOEITIES. A. Abtott V. Seabor Abbott on Shipping Aid (The) Alerta (The) Alex. Moling 93 Atkyns v. BuiTOUghs 377 Atlas (The) 197, 204, 206, 227 Augusta (Tiie) 218 Aurora (The) 174, 200, 216, 217, 225 Austin V. Dewey 405 Azuni's Maritime Law 2, 9, 10, 11, 13. 14,21, 23, 26,30,41,44,47 Badlara v. Tucker 90,91 Baglchole v. "Walters Baker v. Corey V. Marine Ins. Co. Baird v. Blairgrove Baltic Merchant (The) Baltimore (The) Banorgce v Ilovey, Barbara (The) Bark Clarence (The) Barker v. Hodgson V. Phoenix Ins. Co. Page 63 367 119 139 402,411 345 137 200 220 172 266 139 307 80, 81, 102 144 369 356 Barnard v. Burling Baron Holberg (The) Barr v. Gibson Barruso v. IMadan Bartlett v. Wyman Baxter v. Rodman Bearse i\ Three hundred and forty pigs of Copper 349 Beaver (The) 378 Beckford (William, The) 355 Bedford Com. Ins. Co. v. Parker 274 Ins. Co. V. Parker 261 Bee (The) 319, 322, 323 Becker r. Vrowman 138 Bell V. Hopkins 90 V. Smitii 282 Bello Corrunes (The) 347 Bcllona (The Ship) 324 Bencdift's Admiralty 2, 114 Bergstromc v. Mills 387 Betsey (The) 169 Betsey Caincs (The) 303, 304 Bcvan v. The Bank of U. S. 263 15irkley v. Prcsgrave 234 Bixby V. Fr.mkiin Ins. Co. 92 Black V. The Louisiana 354 Blackstone's Com. 15, 26 r.lakc (The) 412,415 HIninc r. 'I'iicShip Chas. Carter 200, 207 iJlaircau (The Ship) 319, 320,344, 346, 348, 349 TABLE OP CASES AND AUTHORITIES. Page Blanchard v. Bucknam 342, 398 Blitrht V. Page 172 Bocclcrs Lust (The) 44, 48 Bokkelin ?'. IngersoU 181 Bond V. The Cora 157 Boirekins v. Bevan 78 Boston (The Schooner) 157, 317, 322, 328, 346 Boucher ( Consnlat delaMcr,) 12, 16, 47 Bowcher v. Naidstrom 291 Brackctt r. M'Nair 160 Bradhurst v. Col. Ins. Co. 242 Bradstreet v. Neptune Ins. Co. 127, 128. 129, 130 Branston (The) 334 Bray v. Bates 216 V. The Atalanta 399 Brevoor v. The Fair American 317 Bridge v. Austin 160 Brig^Eagle (The) 184 Briggs V. Mer. Tra. Ship Loan and Ass. Co. 334 V. Strange 95 Britain (The) 332 Broadwell v. Swigert 296 Brook! inc (The) 373 Brooks V. Bryce 1 90 V. Door 378, 387, 404 Bronde v. Haven 395, 398 Brower v. Tlie Maiden 416 Brown v. Cornwell 239 V. Jones 404, 412 V. Lull 353, 368, 378, 388, 392 r. Ralston 151 V.Stone 312 w. The Neptune 414 Browne's Civ. and Adm. Law 31 Bryant v. Com. Ins. Co. 103, 120 Nestor (The) 184 Buck V. Lane 405 V. Rawlinson 393 Bulloch V. Steamboat Lamar 299 Burley v. Gladstone 188 Burns" v. Stirling 309 Bynkershoek 43, 121 Callender v. Ins. Co. of N. America 274 Calvpso (The) 316 Cambridge (The) 360, 402, 411 Campbell i'. Barker 136 Canada (The) 326 Carey v. The Kitty 390 Carolina (The) 42 Carruthers v. Sydehotham 313 Carter v. Hall 370 Cassius (The) 159 Castilia 382, 400 Catherina Maria (The) 340, 401 Page Catherine of Dover 297 Cato (The) 320, 348, 349 Caton V. Rumney 301 Caze «. Eeilly 241,243 V. The Baltimore Ins. Co. 170 Celt (The) 308, 312 Center v. American Ins. Co. 103 Centurion (The) 328, 345, 346 Certain Log? of Mahogany 152, 153, 155 Chamberlain v. Harrod 119 Chandler i\ Grieves 375 Charles Carter (The) 200, 207, 219, 220 Cheriot v. Faussatt 123, 129 Chester (The) 306 Chitty's Law of Nations 41,48 Com. Law 55 Christiana (The) 312 Christopher Slyboom (The) 126 Church V. Hubbart 37, 43 V. Marine Ins. Co. 119 Chusan (The Barque) 187, 191, 193 Cicero 36 City of London (The) 319, 399 Clarence (The Bark) 220 Clark V. Union Ins. Co. 276 Clifton (The) 326 Cloutman v. Tunison 365, 402, 405, 407 409,410, 414 Cochran ik Retberg 149 Coffin V. Jenkins 405, 410 Col. Ins. Co. V. Ashby 234, 236, 241 , 243 Collins V. Evans 68, 69 Colvin V. Newberry 152, 153 Combe's case ' 136, 137 Comet (The) 123 Commerce (The) 405, 410 Conrad v. The Atlantic Ins. Co. 90, 217, 228 Copeland V. Merc. Ins. Co. 119 Copenhasen (The) 226 Cora (The) 320, 335, 348, 349 Cornfoot v. Fowke 87 Cornish v. The Murphy 200 Cotel V. Hilliard 408, 409 Countess of Dirrham (The) 303 Countess of Harcourt (The) 360 Courtney (The) 381 Cowell V. Simpson 188 Cox V. Beimctt 139 Cranmer r. Gernon 395, 398 Creole (The) 50, 314 Crockett v. Dodge 234, 235, 236 Crousdon v. Leonard 127 Crusader (The) 356, 363, 365 Cupisino v. Perez 210 Cutler V. Winsor 140 Cynosure (The Brig) 306, 416 Cynthia (The) 340, 400 Cyrus (The) 382, 405 TABLE OF CASES AND AUTHORITIES. XI D. Page Da Costa v. Edmonds 238 Darling v Simpson 346 Davis V. Ciiild 184 Davis r. New Brig 184,187,195 Dawn (The) 341, 370, 379, 380 Dearborn v. Cross 139 Delacroix v. Bulkley 139 Del. Ins. Co. r. Archer 227 De Lovio r. Boit 131,195 Descadillas v. Harris 175 Depaii I'. Ocean Ins. Co. 276 De Vaux v. Salvador 293, 294 Diana (The) 312,313 Divina Pastora (The) 126 Dobson V. Droop 150 Dodge V. Bartol 237 Donaldson r. Thompson 123,125 Door V. Pacific Ins. Co. 115, 116 Dosseitei (The) 347 Douiriass v. Evre 362 '^- r. Moody 267 Doyle V. Dallas 102 Draco (The Brig) 197,199,200,219, 221 Drinkwater v. Brig Spartan 152, 180 Druid (The) 290, 291 DufFr. Lawrence 151 Duffie V. Haves 147 Duke of Bedford (The) 199, 219 of Manchester (The) 347 of Sussex (The) 309 Dundee (The) 96, 97, 289 Dunham v. Com. Ins. Co. 282 Dunnett v. Tomhagcn 340 Duponccau's Bynk. 43, 47 Dusar v. Murgatroyd 160, 291 Dyer v. Hargrave 61 V. Lewis 66, 140 E. Eagle (The Brig) 184 Eaken v. Thorn 405 Eastern Star (The) 404 Edmonson v. Baxter 160 Eliza (The) 360, 382 Elizabeth & Jane (The) 347 Elizabeth (The Brig) 377, 379, 384, 395, 401, 405 Elliott V. Ttusscll 160 Elvira (The) 320 , 335, 340 Emancipation (The) 206, 218 Emblem (The) 317 , 327, 329 Emerson i-. Ilowland 378, 381, 387, 392, 400 Emulous (The Schooner] 317, 321 Estrella (The) 126 Eugene (The) 325 Evans v. Wells 136, l.'}7 Exeter (The) 413, 415 Ex parte ilalkett 93 Page Fair American (The) 317, 318, 399 Fanny & Almira (The) 102, 112 Farmer v. Davies 175 Farmer (The) 354, 355 Flad-Oyen (The) 123, 125, 126 Fletcher v. Bowsher 68 Fontaine v. Phaniix Ins. Co. 103 u. The Columbian Ins. Co. 21 6 Fortitude (The Ship) 103,105,174,176, 199, 202, 227 323 156 67 222 183 Lord 231 178 Frazier v. Gervais 61 Frederick (The) 336, 356, 414 Freeman v. Baker 67, 79 Freight and Cargo of the Spartan 133 Friends (The) _ 170, 305, 308, 387 Frothingham v. Prince 340 Fortuna (The) Forward v. Pittard Foster v. Charles Francis (The) Franklin v. Hosier Ins. Co. V. Frazer v. Marsh Fuller V. Wilson 88 G. Gale u. Laurie 97,98 Galloway v. Moitis 395 Gardner v. The Ship New Jersey 181, 189 Garrigues v. Coxe Gazelle (The) Gelston v. Hoyt General Smith (The) George Home (The) Gerard v. Ware Gernon v- Cochran Gibson v. Phil. Ins. Co. Giddings (Ex parte) Giles V. Eagle Ins. Co. V. The Cynthia 340 Gillingham v. Dempsey 392, Glasgow Packet (The) Glass V. The Ship Betsey Gloucester (The) Goodridge v. Lord Gondolier (The) Gordon v. Mass. F. & M. Ins. Co 115 307, 309 127 184, 187 360 387, 404 135 228 375, 377 272 395, 398 159, 160 347 Goss V. Lord Nugent Gould V. Oliver Graces (The) Grant v. McLachlia Gratitudinc (The) Gray v. Cox V. Wain 243, 27^78, 279, 280 Grcely V. Watcrhouso 210 Green v. Iloyal Ex. Ins. Co. H)2 Grotius 13, 30, 33, 35, 36, 60 126 378 141 414 103, 116 138 237, 239 321 118 50, 224, 229 84 Xll TABLE OF CASES AND AUTHORITIES. H. Patre Hadley v. Clark 163 Halkett (Ex parte) 93 Hall V. Franklin Ins. Co. 103, 116, 118 Hallam's Middle Ages 6, 13, 14, 17,21, 22 Hamilton v. Warfield 144 Handavside v. Wilson 305, 306 Hancock r. Fishing Ins. Co. 399 Hannah (The) 210 Happy Kctiirn (The) 382,402,407,411 Harden v. Gordon 368 Harmau v. Gandolphi 150 Harmony (The) 126, 335, 340, 344, 352 Harper v. New Brig Harriet (The) Harrington v. Fry Harris v. Watson Hart V. The Ship Littlejohn Hartman v. The Brig Will Harvey (The) Hasbrouck v. Tupper Hand V. Baynes Havelock v. Rockwood Haverlock v. Geddes Hay V. Le Neve Hay craft v. Creasy Hayman v. Molton Hazard v. Irwin (The Ship) Healy (The Brig) Hebe (The) Heckscher v. McCrca Henrique & Maria (The) Henry Ewbank (The Ship) 184 307,317 178 369 376, 388 103. 107 335,' 367 139 158 123, 125 142, 144 292 68 100, 112 68 375, 388 316,317 214 146 123 316,320, 321, 324, 347, 348 340 210,211 219 Hercules (The) Hero (The) Hersey (The) Herstelder (The) 48 Heyliger v. The New York Fire- man's Ins. Co. 262 Highlander (The) 199 Hindman v. Shaw 398, 400, 404 Hinde v. Whitehouse 90 Hobart V. Drogan 334, 335, 336, 340 Holmes v. Bradshaw 402, 403 Hooper v. Perley 386, 395 Hooper (The Ship Nath^) 170, 171 274, 349 208 152 377 97 94 388 392, 400, 404 V. Whitney Hoore v. Grovemau Hope (The) 305, 307, 333, Hoskins v. Pickersgill Hovey v. Buchanan Howland v. The Lavinia Hoyt V. Wildfire Hudson V. Guestier 122, 123, 127, 128 Hume's History of England 7 Humphreys v. Union Ins. Co. 274 Hunt V. Eousmanicr 89 Page Hunter v. Baker 112 V. Fry 140 V. Parker 102 V. Princeps 112 (The) 219 Hun-y V. Hurry 135, 215 Hurton v. The Union Ins. Co. 274 Hussey v. Allen 177 V. Christie 182, 229 Hutchinson v. Coombs 378, 379 Hutton V. Bragg 188 I. Icard V. Goold 399 Independence (The Brig) 409, 416 India (The) 346 Ingersoll's Roccus 95, 140 Ins. Co. of N. America v. Jones 269 Penn. v. Duval 282 Ireland 'v. Thomson 120 Iron Duke (The) 311 163,165,367 309 Isabella (The) Itinerant (The) J. 59, 90 Jacobsen's Sea Laws Jackson v. Sims James v. Bixby Jane (The) Jane & Matilda (The) Janney v. Columbian Ins. Co Jenkins's Centuries Jennings v. Gratz V. Ins. Co. of Penn. Jerusalem (The) Jewett V. Wai'ren Johann (The) John (The) (The Ship) Johns V. Simons Johnson v. Broderick V. Miln V. ShijDpen Jones V. Bright V. Smith Jonge Bastian Josefa Segunda (The) Joy V. Sears Juifrow Maria Julianna (The) Jumel V. Mar. Ins. Co. Juniata (The) Jupiter (The) K. , 93, 100 389, 390 174, 175 205, 218 355 114, 115 100 79 205, 206 187, 195 90 314 189 215 176 384 138, 140 100 85 395 324 126 91 167 392, 393 287 380 307 Kammerherie Eozencratz (The) Keith V. Mui-dock 219 215 TABLE OF CASES A:SD AUTHORITIES. XIU Kent's Com. 5, 9, 25, 27, 36, 46, 62, 90, 92 95 Kierlighett CThc) 123 Kimball v. Tucker 137, 142, 144 King V. Shepherd 159 Kitty (The) 417 Kleine i-. Catara 148 Knagg V. Goldsmith 409, 414 Kynter's case 97 I La Amistad de Kues, 46, 47 La Belle Creole 320 Lacombe v. Wain 148 Lady Campbell (The) 414 Durham (The) 392, 399 Walterstorif 393 Lafon V, De Armas 90 Laidlaw v. Organ 61 La Isabel 209 217 La Jeune Eugenie 54 Lamb v. Durant 92 Lane v. Penniman 180 Lano V. Xeate 98 Lapsley v. United States Ins. Co. 287 La Purlsima Coucepcion 337, 339 Lavinia v. Barclay 211 Leavenworth v. D'elafield 269, 275, 281 Leech v. Steamboat Minor, 301 Leer v. Yates 150 Le Louis 37^ 53 Le Tigre 336, 351 Lemon v. TValker 387 Lennox v. United Ins. Co. 276, 277 Leonard v. Huntington 175, 178 Lewis V. Davis 41 6 (Ex parte) 188 V. Hancock ISO if. Williams 262, 277 Lex Mercatoria 95 Liddard v. Lopez 170 Licbart v. The Ship Emperor 212 Limland v. Stevens 406 LTnvincible 126 Lock V. Swan 395 London Merchant (Tlie) 321 Lord Hobart (The) 354 Louisa (Tlic) 170 Lowryr. Steamb. Portland 305,306,309 Luciana v. Am. Fire Ins. Co. 139 Luke r. Lydc 2 Lu.scomb V. Prince 39I Lyons v. Martin 291 M. Macomber v. Tliompson 354, 356, 414, ■.r , 415 Madonna (The) 219 MAR. 5 ^laggrath v. Church ilagill r. Hinsdale Magnolia (The) Maisounaire v. Keating ilajor V. White Malpica v. ^IcKown Malta (The) Marcardier v. Chcs. Ins. Jlarch Maria (The) Marianna (The) Marianna Flora (TheJ Marion (The Schooner) Marsh v. BIythe Marshall v. ^Montgomery Marshall on Insurance Marten's Law of Nations _„, „„, ... Mary (The) 127,128,200,206,219,222, 3S3, 402.405,407,410 258, 274, 286 136 157 404 156 178 392, 400 Co. 152 121 :U-2,320 000 52 184, 187 307 384 25 28, 55, 121 Mary Ford fThe) IVLiryland & Phccnix Ins. Co. v Bathurst Marquand v. Webb Mason v. Ship Blaireau Massachusetts (The) Massasoit (The) Mathews v. Bliss Mavo V. Harding M'Culloch V. The Ship Lethe IM'Farland v. Newman M'Quirk v. Tlie Penelope McCayo v. New Orleans Ins. Co McMauus V. Cricket Mead v. De Colger Mears v. Morrison Medeu-os v. Hill Medora (The Ship) Jlcech V. Robinson ^Icllish V. Motteaux Mentor (The) 405, 406, 411, 413, 414 JNIesner v. Suffolk Bank 369 126 119 174 157 313 341, 400 61 366 370 81, 83 399 50 290 139 136 168 199, 206, 213, 218, 220 245, 246 62 ilcsscnger (The) Jleyer i-. Barker Millard r. Hibbcrt Mills V. Fletcher Long 349 137 239 102 354 175 359, 363 143 377 68 Milward v. liallctt Minerva (The) ]Minot V. Durant Mitchell V. Orozimbo Moens v. Ileyworth Molloy's De Jure Marit. ct Nav. 31,41. 46. 95, 120, 140 Moore v. Jones 395 Morgan v. Biddic 91 y. Ins. Co.ofN.Amcrlca, 18, 171 Closes r. Mead 79 82 Mo.ss (The Sliip) 4O6. 409, 416 Miig^'ridge v. Hveleth 135 Mumfbrd v. M'Plierson gO XIV TABLE OF CASES AND AUTHORITIES. Page Muiiroe v. Perkins 139 Murray v. Lazarus 1 88 Mutual Safety Ins. Co. v. The Ship George 245,251,280 Mynn v. Joliffe 120 N. Nancy (The) 371 Nathaniel Hooper (The Ship) 170, 171, 274, 349 Natter.strom v. The Hazard 390 Neely v. Lock 68 Nelson (The) 201, 203, 207, 212, 218 Neptune (The) 168, 334, 340, 343, 347, 399, 401, 417 Nestor (The Brie:) 184, 190, 191, 220 New England (the) v. The Sarah Ann 103 New Jersey (The Ship) 354, 363 Newman v. Walters 335, 337 NcwPhrenix (The) 414 Nickels v. Mar. Fire & Mar. Ins. Co. 282 Nickerson v. Tyson 259 Nimrod (Tlie) 234, 361, 378, 416 Niphon's Crew (The) 341 North Carolina (The Schooner) 317 O. O'Connor r. Foster 160 Oddy V. Bovill 126 Odlin V. The Ins. Co. of Penn. 18, 162 Ogden V. Barker 163 V. On- 381 Ohl V. Eagle Ins. Co. 93 Ormrod v. Iluth 68 Orne v. Townsend 381, 414, 415 Orrok v. Com. Ins. Co. 262 Osprey (The) 311 Packet (The) 180, 224, 225, Padleford v. Bondman Paley's INIoral Philosophy Palmer v. Lorillard Paragon (The) Pardessus Parkinson v. Lee Park's Ins. Parry v. The Peggy Patapsco Ins. Co. v. Southgatc Patton V. The Eandolph Paul V. Birch Peragio (The Sloop) Perth (The) Peters v. Wan-en Ins. Co. 1 29, Pevroux v. Howard Philadelphia (The) 402. 229, 272 269 60 163, 165 153, 156 9, 12, 13 73, 80 23 399 103 214 154 335 321 276, 284, 285, 295 187 408, 410 Phillips's Ins. Phillips V. Ilodie Phoebe (The) Phoenix (The) Pickering v. Holt V. Dowson Page 97 188 133, 135, 154 410 136 69 Pierce v. Ocean Ins. Co. 108 Pitman v. Hooper 388. 392, 393, 395, 401 Plummer v. Wildman 267 Pollhill r. Walter 67 Polly (The) 320,378 Pool V. Walsh 381 Pope V. Nickerson 178, 179 Porcupine (The) 367 Portland Bank v. Stacy 95 Pothier 61 Potter V. Ocean Ins. Co. 117. 118, 285 V. Union Ins. Co. 253 V. Providence Washington Ins. Co. 286 Power V. Whitmore 268 Pratt V. Cuif 387 Price V. Noble 257 Prince George (The) 354, 367 Protector (the) 312 Puftendorf 55 Putnam v. Wood 141 I'. Dutch 90 R. Raikes (The) Raitt V. Mitchell Rajah (The Bark) Ralston v. State Rights Ramsay v. Allegre Randall v. Lynch Randolph (The) Ranger (The) Rathburne v. Payne Read v. Bonham 321 189 395 291, 292 192 150 208 414 296 102 V. The Hull of anew Brig 195, 196 V. Com. Ins. Co. 213 Rebecca (The) 133, 217, 220, 404 Reed v. Canfield 256 Reeside (The Schooner) 154 Reeves v. The Constitution 301 Regulus (The) 365 Reid r. Darby 102, 112 Reliance (The) 215,340 Rhadamanthe (The) 209, 220, 229 Rice V. Austin 90 Richardson r. Clark 98 Richmond Turnp. Co. v. Vanderbilt 290 Ripley v. Scaife 141, 142 Rising Sun (The) 346 Robertson r. Bethune 1 49 V. Clark 102 V. U. Ins. Co. 203 Robertson's Chas. V. 6. 7. 21 TABLE OF CASES AND AUTIIORITIEi XV Page Kobinson v. The Commonwealth Ins. Co. 103 Roccus 95 Rogers v. Hunter 150 V. The Brig Rival 293 Rose (The) 308, 310, 312, 388 V. Himelv 127, 12S Ross I'. The Ship Active 211, 229 Rovena (The) 405, 406, 409 Rubicon (The) 212 Ruckcr V. Conyngham 205, 210, 213 S. Saltus V. Com. Ins. Co. San Bernardo (The) Santa Cruz (The) Sarah Ann (The) 103. Sarah Jane (The) 104. 116 348 121,351 108, 404 332 Saratoga (The) 340, 379, 380. 388, 392, 404 Scaifc r. Tobin 284 Scattergood (The) 187 Schneider i-. Heath 64 Schooner Exchange 36, 40 Schuyler v. Russ 61 Scioto (The) 297, 298, 299, 300, 310, 311 Scott V. Libby r. The Greenwich Scudder r. Bradford Scull V. Biddle Seixas v. Wood Selden Selden v. Hendrickson Shannon v. Comstock Shannon (The) Shaw V. Gookia I'. Ship Lethe Shepherd v. Rain V. Taylor 167, 170 389 259 103, 108 81, 86 21 208 146 308 180 370 77 287 169 377, 383, 406 184, Shepherdess (The) Sherwood v. MTntosh Ship Constitution (The) 291, 300, 301 Exeter (The) 378 New Jersey (The) 354 Susan (The) Sigard v. Roberts Simonds v. Hodgson V. White Simpson c. Hand Sims V. Gurney Sisters (The) Smith v. Condry V. I'himmer V. Richardson V. Surridgc V. Wrigiit Smitli's Leading Cases Smith's Mercantile Law Sncll V. The Brig Independence 402, 40.3, 407 382, 400 204 276, 282 296, 310 234, 241 92 159,304,314,315 180 159, 160 124 237 68 86 410 I'agc Somes r. Sugrue 102 Sophia ( The) 340 Sophie (The) 176 Souter I'. Baymore 158 South Carolina (The) 387 Spatlbrd v. Dodge 143 , 151, 257, 270, 387 Spartan (Freight and Cargo o f) 133 Spes & Irene (The) 169 Spooner v. Baxter 91 Sprague v. 140 barrels of Flour 324 V. Rain 414 Sproul V. Hemmingway 300 Spurr '•. Pearson 414 416 Star (Tlic) 336, 340 347 Starr v. Goodwin 95 Steamboat Co. v. Whilld in 307 Stevenson v. Blakclock 188 Stienmitz v. United Ins. Co. 115 Stilk r. Myrick 369 St. Jago de Cuba 184 186 189 St. Olofr(The) 378 Stone V. Denncy 68 V. Retland 291 Stonehouse v. Gent 176 Story on Agency 86, 8 7, 89 119 on Partnership 93 Story's Com. on Equity 60 Stoughton V. Rappalo 164 Strong V. Firemen's Ins. Co. 276 277 rr,o,,'c Ins. 276 Co. 283 Strout V. Foster 299 Sugden on Vendors 62,76 Superior (The) 354 Suydam v. Jones 139 Swainston v. Garrick 155 1.56 Sweet V. Colgate 81 Swift V. Clarlc 359 Swinburne's Travels 10, 11 Sydney Cove (The) 210 219 T. Talier v. United States 357 Taggard v. Loring 92 135 Talljot V. Seaman 319, 326, 351 Tartar (Tlie) 218 Taylor v. Curtis 254 Test (The) 405 Tiiatcher v. Steele 383 Thompson v. Bealc 384, 385 ,. T?.^,,^^^n. on 3,395 ,397 398 Tliorn r. Hicks 92, 178 Tliorndikc v. Stone 199, 205 Tliorne v. White 414, 417 'I'liornton v. United States Ins Co. 276 Tilton (The) 99, 103 108, 114, 118, 119, 120 Tobago (The) 221 Touting V. Hubbard 163 XVI TABLE OF CASES AND AUTHORITIES. Townscnd v. Orne Traveller (The) Trelawney (The) Tremenhcre v. Trcsilliau Tribune (The Schooner) Trident (The) Tristam Shandy (The) Tudor V. Macomber Turner v. Coolidge Turner's Case Tutela (The) Twee Gebroeders Two Catharines (The) Two Friends (The) U. Pa^e 381, 414 308 317,318 99 134, 136, 160 209, 226 375 274, 279, 280 97 354, 365 167 44 327, 340, 392, 395. 398, 401 319^ 335, 344 United States v. Haines " " r. Hamilton 414 366 Ins. Co. V. Scott 229 V. Kelley 414 V. Peters 126 V. The Brigantine William 57 V. Wilder 273. 283 V. Willino; 92 Vanbokkclin v. Ingersoll 180, 181 Van Bueren v. Wilson 392 Vandcrplanli v. Miller 296 Vauderslice v. The Steam Tow- Boat Superior Van Ostrand v. Reed Varnard v. Hudson Vattel Veacock v. M'Call Vennall v. Garner Venus (The Ship) Vicary v. Moore Vinal V. Burrill Virgil (The) 303 80 156 6,30, 36,55, 121 367 296 214 138 92 298, 312 Virgin (The) 202, 203,215,217,218,219 Volunteer (The Schr.) 133, 152, 154, 155 Vrouw Margaretha 326 Vrow Anna Catharina 44 W. Waiuwright v. Crawford 176 Walker v. United States Ins. Co. 241 Walsh V. Whitcomb 89 Walterstorff(The) 393,396 Walton V. The Ship Neptune 17, 389 Ward V. Ames 378 V. Green 135 Warder V. Greer 160 Waring v. Clark 299, 316 Warman v. Faithful 134 War Onskan (The) Warrior (The) Washington (The) Waterloo (The) Watkinsou v. Barnardistou V. Laughton Watson V. King V. Mar. Ins. Co. Page 351 112 383, 417 348 182 159 89 286 217 412 152 Wave (The) Webb v. Duckingfield V. Pierce Webster's Dip. and Official Papers 35, 38, 49, 50, 52, 54 Wendoveri'. Hogeboom 92, 177 Westminster (The) Weston V. Penniman Wetmore v. Henshaw Wharton's Law Lexicon Wheaton's Int. Law 33, Wheelwright v. 333 59, 93 388 3 35, 44, 45, 47, 52 Depeyster 122, 123, 128 White V. Baring Whittridge v. Norris Wickliam v. Blight Wildman's Int. Law Wilkinson on Shipping Wilkinson v. Frazier Willard v. Door William Harris (The) William Money (The) William Penn (The) Williams v. Amroyd V. Box of Bullion V. Suffolk Ins. Co. V. The London Ass Wilmer v. Srailax Wilson V. Bragdon r. Miller V. The Bclvidere V. The Ohio Winn V. Columbian Ins. Wolfw. The Oder Wood V. Smith V. The Nimrod 180 260 367 31, 93, 121 72, 79, 95 355 .367, 404. 417 416 192 223 122, 128, 130 158 259, 266 Co. 287 200 382 102 414,417 354 Co. 103 392, 399 82 416 Woodrop Sims (The) 291,298, 299, .306 Woodruff V. The Levi Dearborne 184 Woods V. Russell 97 Wright V. Barnard 116 V. Crookes 80 V. Wilcox 290 Yeaton v. Fry Yorkshireman (The) Z. 169 304 Zane v. The Brig President 189 Zephvr (The) 224, 225 Zodiac (The) 183, 210, 226 MARITIME LAW. CHAPTER I. OF THE HISTORY OF MARITIME LAW. <§> 1. Maritime Law, as a branch of International Law, is that collection of principles and usages that pertains to the rights, duties, and obligations of nations with respect to the Sea. As a branch of Commercial Law, it relates more especially to individuals, to the property of ships, the rights and duties of masters and seamen, contracts of affreightment, average, salvage, &c. <§) 2. If we trace this law to its source, we shall find that it is not the growth of a single generation, nor the product of a single mind, but the accumulated wisdom of progressive ages, and diflferent nations. It is founded on the practices of merchants, the principles of the Civil Law, approved com- pilations of maritime rights and usages, such as the Laws of Oleron and Wisbury, the writings of eminent jurisconsults, and the adjudications of the Admiralty Courts of different countries. <^ 3. Composed of such various materials, obtained from such various sources, with no claim to the sanction of man- kind, but the inherent equity and justice of its rules. Mari- time Law, by that title alone, asserts an universal sway. It is not the particular law of this country or that, but the general law of nations, A great jurist has applied to it the language employed by Cicero, to express the universal re- cognition of the eternal law of justice. Nee crit alia lex MAR. 1 2 MARITIME LAW. RomcB, alia Athmnis : alia nunc, alia posthac : sed et otnnes gentes, et omni tempore una lex et sempiternas, et immor- ialis continehit} <§, 4. In addition to the general Maritime Law, every com- mercial State has certain admiralty regulations, of a muni- cipal character, peculiar to itself. Among these may be mentioned, navigation acts, laws with respect to harbors, to obstructions in rivers, to drowned persons, wrecks, prohibited nets, &c. Cases arising under these laws, fall appropriately within the jurisdiction of the Courts of Admiralty.- Of Navigation and Commerce. <§. 5. A few words with respect to the important interests to which Maritime Law especially relates, may not be inap- propriate. First, then, of Navigation. Traced to its source it is found to have originated in the necessities of mankind. It has been well said that his heart must have been bound with oak and triple brass, who first committed his frail bark to the tempestuous sea.^ Curiosity alone could not have tempt- ed him to brave the fury of the elements. It was want and cupidity that impelled him, despite his terror, to trust his fortunes to the inconstant waves.^ Familiarity with danger banishes fear and inspires courage. The early navigator, at first not venturing far from shore, at last, emboldened by habit, pushed farther out upon the waste of waters. Galleys and rafts took the place of the abandoned canoe. The stars 1 Cic. Fragmenta de repub. lib. iii. quoted by Lord Mansfield, ia Luke V. Lyde, 3 Burr. 887. 2 Benedict's Admiralty, p. 25. 3 Illi rohur et ces triplex Circa pectus eraf, qui fiagilem truci Commisit pelago ratem Primus, nee timuit prcecipitem Africum^ Decertantem Aquilonihus, Ncc tristes Hyadas, nee rabiem Noti. Herat. lib. i. Od. 3. 4 Azuni's Maritinae Law, vol. i. p. 3. HISTORY OF MARITIME LAW. 3 of heaven served for a guide. Discoveries were soon made of unknown shores, with varied and unknown productions. Intercourse with their inhabitants naturally followed ; for nature seems to have planted in the breasts of men a mutual desire to supply mutual wants. Indeed it is often suggested, and with apparent reason, that the diversified productions of the various regions of the globe were intended by Provi- dence as the means and incentive to commerce — thus bring- ing mankind together and keeping alive a sentiment of uni- versal brotherhood.^ <§» 6. Commerce is distinguished from trade. The latter relates to mutual dealings at home. The former to the in- tercourse of the inhabitants of different countries, in each other's produce and manufactures, in which the superfluities of one nation are given for those of another, and then re- exchanged for mutual wants.^ Commerce naturally and necessarily followed upon navigation. To regulate the mul- tiform transactions of the former, and to encourage the latter, soon required the attention of the early commercial States. Maiithue laws were adopted, appropriate to the limited wants of an infant trade, but containing nevertheless the elements of the expanded system, that now comprehends the com- merce of the world, and prescribes the rule of decision, in all contested cases arising out of it. 1 The varied productions of different countries are admirably described by Virgil, in the first book of the Georgics. The passage has been translated with singular elegance by Mr. Sotheby. Here golden harvests wave, there vhieyards glow, Fruit bends the bough, or herbs unbidden grow. Her saffron, Tmolus, Ind her ivory boasts. Spice wings the gale round Saba's balmy coasts : The naked Chalybcs their iron yield, The powerful Castor scents the Pontic field ; While famed Epirus rears th' equestrian breed. Born for tlie palm that crowns th' olympic steed. In stated regions, from th' Eternal cause, Such nature's compact, and unbroken laws ; Such from the time when first Deucalion hurl'd The stones that peopled the deserted world. 2 Wharton's Law Lexicon, tit. Commerce. 4 MARITIME LAW. <§) 6 a. It will be our endeavor, in the present chapter, to trace the history of the more important maritime codes that have at various times and under various sanctions been given to the world. Such as are now referred to in our Courts as evidence of the Maritime Law, and so far constitute a part of our Jurisprudence. Of the Ancie7it Maritime Laics. <§. 7. To Rhodes belongs the honor of giving to the com- mercial States of antiquity the first authoritative code of maritime law. Its inherent excellence compelled universal admiration, and it became, in process of time, the general standard of authority in marine affairs. In the comprehen- sive language of Antoninus, it was the sovereign of the sea.^ Adopted nine hundred years before the birth of our Saviour, these laws continued in vigor down to the century preced- ing his advent. Cicero, in his oration Pro Lege Manilia, speaks of them as existing within his memory. Rhodiarum usque ad nostram memoria7n disciplina navalis, et gloria remansitj^ <§> 8. The Rhodian laws were the source of the maritime jurisprudence of the Romans. They were observed in all cases of maritime controversy, when not opposed to any express law of Rome. The reply of Antoninus to Eudaemon of Nicomedia, is conclusive proof of this. Doinine Lmpe- rator Antonine, naiifragium in Italia facientes, direpti su- QTiiis a Publicanis Cyclades insiilus habitatitibus. Respondit Antoninus Eudaemoni : Ego qiiidem mundi Domimis, lex 1 Dig. 14, 2, 9. 2 Orat. Pro. Lege Manilia, c. 13. Strabo, who flourished about the era of Christianity, speaking of Rhodes says : "Their excellent laws, and the care bestowed on every part of their political administration, particularly in what concerned their naval affairs, are worthy of admiration ; by these, the Rho- dians maintained the empire of the seas for a long period, expelled the pirates, and acquired the friendship of the Romans." Lib. 14. HISTORY OF MARITIME LAW. 5 autem maris lege, id Bhoclia, qucB de rchus naiilicis prcB- scripta est, judicetur, quatemis nulla nostrarum legiim adversatur. Hoc idem Dims quoque Augustus judicavit.^ These celebrated laws have not been handed down to us. All that has survived of them, is found in the Digest, and arranged under one title, De Lege Rhodia de Jactur This, together with the few, brief rules of the Roman law, em- braced in the works of Justinian, is all that remains to us of the commercial law of the ancients.^ But fragmentary as it is, it constitutes nevertheless the basis of the marine law of the moderns in several of its most important and positive rules. ' Dig. 14, 2, 9. The Romans cultivated a martial spirit, esteemed nothing honorable but the sword and the plough, and by conferring honors and rewards upon the profession of arms, stimulated the ambition, and developed the military genius of their people. By open force or fraudful arts the sur- rounding States, one after another, were made tributary to their power, until at last their empire comprehended the limits of the known world. Far differ- ent, indeed, is the history of the Rhodians. They effected a signal and glorious conquest. Not a conquest which boasts of desolated cities and ensanguined fields ; not a conquest which forces dominion upon a reluctant people, and maintains authority by the terror of arms ; but a conquest achieved by wisdom and conferring benefits upon the conquered of immeasur- able value. A small Stale, not seeking aggrandizement by the spoil of neighbors, but content with the fruits of commerce, comes at last to give law to the world. Such a spectacle the mirror of history does not often present to our view. 2 Dig. 14, 2. The title, De Lege Rhodia de Jaclu is the celebrated frag- ment of the Rhodian law on the subject of jettison. Vide infra, Chap. 8, tit. General Average. It was ordained, that if goods were thrown overboard, or a mast cut away in a storm, or otiier common danger, to lighten and save the vessel, and the vessel be saved by reason of the sacrifice, all concerned must contribute to bear the loss, as it was incurred voluntarily for the good of all, and it was extremely equitable that all should ratably bear the burden according to the value of their property. There were some reasonable limit- ations to the rule. It did not apply to the persons of the free passengers on board, for the body of a freeman was said not to be susceptible of valuation, and it did not apply to the provisions which were used in common. The goods sacrificed were to be estimated at their actual value, and not at the anticipated profit ; but the goods saved were -to be estimated for the sake of the contribution, not at the price for which they were bought, but at that for which they niiaht sell. Kent's Corn. vol. iii. p. 9, note. 3 Ibid. 1* Q MARITIME LAW. What survives is comprehensive, liberal, and just, and teaches the value of what was lost. Of Maritime Law and Commerce in the Middle Ages. ^ 9. The invasion of the barbarians and the overthrow of the Roman Empire changed the condition of the world. Laws, arts, civilization were ingulfed in a common ruin. Europe was broken into several States. Intercourse between them ceased. The seas were infested v/ith pirates and the land swarmed with banditti. So common was robbery that it almost ceased to be regarded as criminal. The feudal lords, descending from their castles, v/aylaid the traveller, plundered him of his property, seized his person, and unless ransomed sold him as a slave. i In the reign of Charles the Bald, the judges were required to take an oath, neither to rob themselves, nor protect those who did.^ <§, 10. The most barbarous laws prevailed. The merchant dared not risk his person or property in foreign ports. He was exposed to the most grievous exactions. If shipwrecked, it was the universal practice to confiscate his goods as the property of the lord on whose manor they Avere thrown. Whilst in some countries shipwrecked persons might be reduced to servitude. ^ The Droit DWuhaine in some form or other was found in the laws of every European State. By this, the stranger was denied the privilege of conveying 1 Hallatn's Middle Ages, p. 473. ~ Robertson's Chas. V. vol. i. note xxix. Introduction. 3 Robertson's Chas. V. note xxix. It is hardly credible, that in the nine- teenth century, so barbarous a practice, and so violative of the law of nations, should exist in any quarter of the globe, as seizing and imprisoning ship- wrecked persons. But such is the fact. Japan imprisons the natives of all other countries, except, perhaps, the natives of China, who are thrown upon her shores by the disasters of the sea. A number of American seamen, in the year 1846, were consigned to Japanese bondage, and only released on the demand of our government, enforced by the presence of a man of war. Upon the detention of shipwrecked persons, vide Vattel, B. 11, c. 8, s. 108. HISTORY OF MARITIME LAW. 7 his property by will, and when he died, it escheated to the king, or to the Lord of the Barony. In such a deplor- able condition of human affairs, the seas scoured by pirates, the land by robbers, and barbarism everywhere, it is not strange that commerce was wellnigh abandoned, and the laws regulating it lost. Mankind dared not venture abroad.^ Fixed to one spot, intercourse suspended, knowledge buried, ignorance of other countries soon became universal. Jeru- salem was supposed to be in the middle of the globe, and was so represented in the geographical charts. Alexandria, according to the geography of the Middle Ages, was situated in Asia, and occupied the same proximity to the holy city as Nazareth. <§i 11. It has been observed, by a philosophical historian,^ that there is an ultimate point of depression, as well as exalt- ation, from which human affairs naturally return in a contrary progress, and beyond which they never pass, either in their advancement or decline. That ultimate point of depression seemed to have been attained, in the history of Europe, towards the close of the eleventh century.^ From that era, the darkness began to disappear. Light, in fitful streams, shot athwart the sky. The Crusades, those triumphs of fanaticism and superstition, of misguided courage and devo- tion, were productive of great, but unforeseen good. They 1 "The names of stranger and of enemy," says Robertson, "became once more words of the same import. Customs everywhere prevailed, and even laws were established, which rendered it disagreeable and dangerous to visit any foreign country. Cities in which alone an extensive commerce can be carried on were few, inconsiderable, and destitute of those immunities wliich produce security, or excite enterprise. The sciences on wliich geogra- phy and navigation are founded were not cultivated. The accounts of ancient improvements and discoveries, contained in the Greek and Roman authors, were neglected or misunderstood. The knowledge of remotest regions was lost. Tlicir situation, their commodities, and almost their names, were unknown." 2 Hume's History of England, vol. ii. p. 421. 3 Robertson's History of Charles V. p. 17. 8 MARITIME LAW. gave an impulse to commerce, restored intercourse between dissevered people, and united Europe in a common cause. Among their more obvious consequences was the improve- ment and amelioration of the political state of the European continent. The oppressive power of the Barons was destroyed and the condition of the people elevated. ''The conflagra- tion," says the historian of the Decline and Fall, "which destroyed the tall and barren trees of the forest, gave air and scope to the vegetation of the smaller and nutritious plants of the soil." <§» 12. It was the 65*601 of the crusades on commerce, that principally concerns our subject. The difficulties and dan- gers that attended the march of the first armies across Europe to Constantinople, on their way to the Holy Land, induced the subsequent expeditions to go by sea. Several of the Italian cities, such as Venice, Genoa, and Pisa, which had kept alive and continued a commerce with the Greek Empire, found immense profit in furnishing vessels to trans- port the crusaders from Europe to Asia, and in supplying them with military stores and provisions. But this was not the only benefit they derived. Superior privileges were allowed them, by the Christians in those maritime provinces which they wrested from the infidels. Separate quarters were granted them in several of the cities, where they were governed by their own laws and magistrates. All their im- ports and exports were exempted from taxation. But a new and enlarged source of commerce was found in the new and enlarged views of the crusaders themselves. Brought into contact with the superior refinements of the East, beholding the various products of art and all the memorials of an older and advanced civilization, this new field of observation and experience opened their minds, and very naturally, indeed, animated them with the desire to introduce at home, what they witnessed and enjoyed abroad. From this era, com- merce flowed in a broader and deeper channel. It began to flourish. It is time to bestow our attention upon the laws that were established for its regulation. niSTORY or MARITIME LAW. Of the Blodern Sea Laics — The Amaljltan Tabic. <§. 13. In so much obscurity is the history of the Middle Ages involved, that it is difficult to determine to whom belongs the honor of being the first maritime legislators of modern times. Chancellor Kent, doubtless upon a review of the various authorities, arrives at the conclusion that the earliest code of modern sea laws was compiled for the free and trading Republic of Amalfi, about the time of the first crusade, towards the end of the eleventh century.^ Pardessus,^ on 1 Com. vol. 3, p. 9, Pardersus fixes the date of their publication in the year 1063. 5 Pard. p. 214, 237. 2 Pard. vol. 3, 1. 21. The precise date at which the Norwegian law was promulgated is A. D. 940. Azuni contends, that after the Greek and Roman, the most ancient and celebrated laws, relative to commerce and navagation, are those contained in the collection so well known under the title of // con- solalo del Mare. The authors of this production, he insists, can be no other than the Pisans, that they were the first to engage in devising regulations for navigation and maritime commerce, and in framing such laws as were requisite to maintain good faith, and to serve as rules in all maritime contracts. He iimrius, on ihe auiUuiily of Conatantiuc Ooctan, a. Benedictine abbe, and Other writers, that the Pisans compiled the body of maritime laws called the Consolalo ; that though it had been already recognized by the republic, yet the Pisans, much attached to religion and justice, believed it their duty, on a sub- ject of so great importance, to have the approbation of the Holy See. They accordingly proceeded to Rome for that purpose, and intreated, with great humility, Gregory VII. to give, by his sanction, the force of law to those statutes. The holy father, condescending to comply with their wishes, con- firmed these statutes, in the church of St. John de Lateran, on the 1st of March, 1075, and the Romans, at the same time, took an oath for their per- petual observance. Azuni's Maritime Law, vol. i. p. 341, 352. Azuni is probably mistaken in his account of the origin of 11 Consolalo; but even admitting the correctness of his view, as to the authors of the work, he is undoubtedly in error in supposing that it was in force, anterior to the laws of Amalfi. The laws of Pisa, which he regards as identical with II Consolalo, were doubtless among the earliest of the modern sea laws, but there is abundant reason to suppose that they were subsequent to the laws of Amalfi. Determine tiie question, however, as we may, and surely there is room for doubt, it will be admitted that the laws both of Amalfi and Pisa, whether we consider their merits or antiquity, deservedly hold a dis- tinguished place among the earliest of tlic celebrated codes of maritime law, that were compiled after the revival of Commerce. Vide infra, sect. 17. 10 MARITIME LAW. the contrary, says, that the maritime law of Norway was promulgated more than a century before the existence of the Amaljitan Table. It possesses, however, neither historical interest nor actual value, and therefore presents no claim to our attention. <§. 14. The laws, known as the Amalfitan Table, less for- tunate than the laws of Rhodes, are entirely lost. No frag- ment of them has floated down to us. And yet they are mentioned by authors who wrote so recently as the sixteenth century, as still in existence, and possessing more authority than any other code.^ We know from history, that the sys- tem of maritime law framed by the people of Amalfi and the admirable administration of it were celebrated through- out the Levant. They were the spring of their prosperity and the source of their fame. The high court of Admiralty established at Amalfi became, in some sort, the tribunal of nations. Its code and reports were the general rule in maritime controversies, throughout that part of Europe ; its precedents and decrees were allowed to be good authority to found judgment upon, even in foreign tribunala.^ The naval power of Amalfi was as superior to that of her neighbors, as was her jurisprudence, and it rendered important service to Christendom, by aiding the pontiff's to repulse the Saracens. Leo the Fourth conferred on Amalfi, in acknowledgment of her services, the title oi Defender of the Faith.^ But nations, like individuals, have their period. The sun mounts to the meridian and then sinks beneath the horizon. Such is na- ture's law. Amalfi was conquered by the Normans in the beginning of the twelfth century, and with that event closed her high career.'* 1 Azuni's Maritime Law, vol. i. p. 376, and writers there mentioned. 2 Swinburne's Travels in the two Sicilies, vol. ii. p. 149. Azuni's Mari- time Law, vol i. pp. 372-377. 3 Ibid. ■* About the middle of the fourth century, a considerable number of Roman families, either from motives of prudence, which induced them to seek abroad HISTORY OF MAEITIME LAW. 11 II Consolato del Mare. ^ 15. The work next challenging our attention, both from its intrinsic importance and the date of its publication is the Consolato del Mare. It purports to have been publicly ap- proved and sanctioned between the years 1075 and 1270 at Rome, Jerusalem, Acre, Marseilles, Majorca, Pisa, Genoa, Venice, Paris, Constantinople, Rhodes, Messina, Cyprus and elsewhere, " as a collection of the good rules and ordinances, ordained by the ancients, in maritime and mercantile mat- ters." Azuni treats the account which the preface to the Consolato gives of the universal sanction^ of the work, as entirely spurious and apocryphal. ^ And Pardessus affirms that security and repose which were not always insured to them at home, or from compulsion, left Rome for Constantinople. Encountering a storm, they 'were shipwrecked and cast upon the coast of Salerno, in the present king- dom of Naples. Attracted by the secure and commodious harbor of Amalfi, they fixed their abodes there. Here, protected from attack by surrounding rocks, crowned with batUemenled walls and towers, and patronized by the Eastern Emperors, they attained, in a long course of years, an enviable state of prosperity. But in the year 825, the scene changed. The ambition of Sico, prince of Salerno, together with dissensions among the people of Amalfi themselves, conspired to their ruin. The city was attacked in the night, and with complete success. Sico made prisoners of the greater part of the inha- bitants, carried them to Salerno, whose population had been reduced by a pestilence, and forced them to settle there. After a compulsory citizenship of four years, the Amalfitans took advantage of the absence of their masters, on an expedition against the Beneventans, to effect their freedom. They plun- dered Salerno, and then consigning it to the flames, marched back in triumph to Amalfi. Taught by experieiice, they reformed their ancient system of legislation, and vested the supreme authority in the hands of a Duke, who was elected for life. Devoting themselves wholly to commerce, their pro- gress, from this period, in wealth, arts, and refinements was unprecedented. Their naval establishment became so powerful that the pontiffs sued for and obtained their aid in repulsing the Saracens. Amalfi, or the remains of it, known as Malfi was recently, within the present year (1851) overwhelmed by an eruption of Vesuvius. For an account of Amalfi, vide Swincburne's Travels in the Two Sicilies, vol. ii. p. 140 ; a work to which I am indebted for most of the facts here stated. . 1 Marit. Law, vol. i. p. 33G. 12 MARITIME LAW. that it never received, as law, the sanction of public au- thority.i <§> 16. Mr. Hallam seems to regard the Consolato but as a reproduction and enlargement of the early maritime jurispru- dence. It would be hard to say, he remarks, how far the tradition of this early jurisprudence, (alluding to that of Rhodes and Rome,) survived the decline of commerce in the darker ages ; but after it began to recover itself, necessity suggested, or recollection prompted, a scheme of regulations, resembling in some degree, but much more enlarged, than those of antiquity. This was formed into a written code, II Consolato del Mare, not much earlier probably, than the middle of the thirteenth century. ^ Whether a system of juris- prudence, swept away in the wreck of nations, would be likely to be preserved by tradition, through a long period, several centuries indeed, among a people who had ceased to be com- mercial, and to whose transactions therefore it ceased to be applicable, admits of very serious question. Indeed it is not a case legitimately within the pale of supposition, <§) 17. The Consolato del Mare, is unquestionably a collec- tion of the maritime laws and usages, observed by the com- mercial cities of the Mediterranean, at the period of its compilation. Its origin is a subject of doubt and contro- versy. The Spaniards claim the honor of its paternity, and insist that it was promulgated in the Catalan tongue at Barce- lona, about the middle of the 13th century. Boucher sup- ports their pretensions, so far as the compilation of the work is concerned, but maintains that its fundamental basis is found in the laws of the Greeks and Romans.^ Azuni, on 1 Consolato, by Pardessus, preface to his translation in the Collections des Lois Maritimes. 2 Middle Ages, p. 481. 3 Consulal De La Mer, vol. i. p. 77, chap. xvi. Boucher says that in ex- amining the Consolato he found not less than 60 of the laAvs to be but a transcript of the laws of Justinian, and hence that we must distinguish be- " CH. I.] HISTORY OF MARITIME LAW. 13 the contrary, in an elaborate argument, contends that the Consolato is the production of the Pisans, and that it received, in the year 1076, the public sanction of Pope Gregory VII. although it had previously been recognized by the republic' Grotius, on the other hand, says that the Consolato was compiled in the time of the Crusades, by direction of the kings of Arragon and was formed from the maritime ordi- nances of the Greek emperors, the emperors of Germany, the kings of France, Syria, Cyprus, Majorca, Minorca, and the republics of Venice and Genoa.^ Amid such contrari- ety of authority, it is impossible to declare with certainty, as to the origin of this celebrated work. But from the con- flict of various opinions, the impartial student will perhaps arrive at the conclusion, announced by a modern historian, that Pisa took a great share in practising, what a century or two afterwards was rendered more precise at Barcelona.^ tween the authors of the laws and the compilers of them. Dans le Consu- lat de la Mer, il faut distinguer deux choses, ses bases fondamentales et sa redaction. Si on n'a 6gard qu'a ses bases fondamentales, il n'apparlient k personne, parce qu'il appartient a tous. Je dis qu'il appartient k tous, parce que, les Grecs, ainsi que les Rhodiens, ayant tire leurs usages maritimes de toute r Asie, les Remains ont pris les leurs chez ceux-ci, et le Consulat a aussi pris les siens chez les Remains. Je dis done que, sous ce rapport, le Consulat n' appartient a personne. Mais, quant a sa compilation, telle que nous I'avons, et qui sans doute difRre tres-peu de la redaction originale, je dis qu'elle appartient aux Barcelonnais. 1 Maritime Law, vol. i. pp. 331-372. Vide ante, note to sect. 13. 2 De Jure Belli et Pacis, lib. 3. c. 1, ^ 5, note. 3 Hallam's Middle Ages, vol. i, p. 481, 482, nole. Judge Ware, in a very learned note, appended to his decision in the case of The Dawn, (vide Daveis's R.) says on the authority of Pardessus, Lois Maritimes, vol. i. p. 201, that it is highly probable that the original articles of the Laws of Oleron, that is, \.\\e first twenty-five were promulgated and in force as cus- tomary law, long before the existence of the Consulate, in the form in which we now have it. " In comparing," he says, " the Roles of Oleron with the Consulate, one can hardly doubt that the former are the more ancient. They have all the marks of primitive compilation, a first rude and imperfect essay towards a digest of the law of the seas. The whole of the primitive Roles is comprised in twenty-five short articles, treating but few subjects and those in a style of great simplicity, with very little development. 15ut the Con- sulate is extended to two hundred and fifty-two chapters, and was evidently MAR. 2 14 MARITIME LAW. [CH. I. <§> IS. Decide, however, as we may, as to the origin of the Consolato, the merits of the work are not impeached. " These have united the suffrages of mankind." What Coke did for the common law and Tribonian for the civil, the authors of the Consolato have done for the marine law of nations. " From its first publication it became the common law of all the commercial nations in Europe, who submitted to its au- thority, because it comprised all the laws and usages of mari- time cities. For this reason it was universally adopted and respected as an invariable law, calculated to maintain plain dealing, and good faith, in all commercial transactions." ^ It treats of Maritime Courts, of Maritime Captures, and the va- rious topics that relate to Maritime Commerce. " Besides regulations simply mercantile, this system has defined the mutual rights of neutral and belligerent vessels, and thus laid the basis of the positive law of nations in its most im- portant and disputed cases." ^ intended as a complete and systematic digest of the whole law, as far as it was then established in practice. Principles are largely developed, with distinctions and limitations, showing that the law must then have arrived to a great maturity. Most of the original articles of the Laws of Oleron are found in the Consulate, and some of them in the same words. Cleirac has inferred from this fact that the compilers of the Laws of Oleron borrowed from the Consulate. But if they had possessed this rich and copious collec- tion is it probable that they would have confined themselves to so small a number of articles 1 It is scarcely credible that they should not have taken more. Besides, when the articles of Oleron appear in the Consulate, they are found improved and more fully developed, showing that they were proba- bly borrowed from that source, and were altered and amended to conform to the jurisprudence of that time." But might not the compilers of the Roles of Oleron, have taken the twenty-five articles from the Consulate, and when necessary, " altered and amended" them to conform to the more primitive jurisprudence of Western Europe? We do not think that the inferential argument, which we have here quoted, is sufficient lo overthrow the commonly received opinion as to the higher antiquity of the Consolato. We have therefore in the text assigned the first place to that venerable and truly great work. 1 Azuni's Maritime Law, vol. i. p. 326. . 2 Hallam's Middle Ages, vol. i. p. 482. en. I.J HISTORY OP MARITIME LAW. 15 Of the Commerce of Western Europe. >§> 19. We have seen that modern commerce awoke to life in the cities of the Mediterranean. The causes that gave it an im- pulse and spring in the south of Europe, were lasting in their effects. They conspired to extend its beneficent empire to Western and Northern Europe. Laws for its regulation were soon adopted. What is true of every branch of human in- dustry, is especially true of commerce, namely, that it must in some sort be coerced and bound by positive law. Not indeed that its operations should be fettered — these should be left as free as the element, which is the theatre of its tri- umphs. But in this, as in every other human pursuit, there must be an ultimate standard, by which its action may be regulated, and disputed cases be determined. Accordingly we find, that wherever commerce is established, a distinct system of laws, adapted to its peculiar wants, is sooner or later adopted. The Laws of Oleron. "§. 20. The maritime code of Western Europe, is known as the Bootes or Jugeme7its of Oleron. Its origin, like the origin of the Consolato, is a subject of controversy. Eminent English lawyers, such as Selden, Coke, and Blackstone, claim that it is the edict of an English prince. " The laws of Oleron," says Blackstone, " were confessedly compiled by our King Richard I. at the Isle of Oleron, on the coast of France, then part of the possessions of the crown of England." i Equally eminent French lawyers — such as Valin and Emerigon — contend that the Role d^ Oleron is a French work, compiled and promulgated by order of Queen Elconora, Duchess of Guienne, and the mother of Rich- ard I. who afterwards adopted and enlarged it.- Recent 1 Com. vol. i. p. 327, ^418. (lOili ed.) 2 Eleonora was the daughter and lieirof William, Duke of Guienne. Her first hushand was Louis VII. of France, whom she accompanied in his cru- 16 MARITIME LAW. [CH. I. writers, both English and French, reject as fallacious, the story that the laws of Oleron were enacted by either Rich- ard I. or the Duchess of Guienne.^ Boucher considers them as registers of actual decisions, and terras the account that is commonly given of their origin, line chimere des plus invraisemhlahles? With respect to the attributed agency of Eleonora and Richard in their compilation, he gives us a brief recital of historical facts. " En 1149 Louis VII. revint de la Terre Sainte ; en 1152 il fit declarer son mariage nul, au Concile de Bojenci. On sait que Louis divor^a avec Eleonore par rapport a la conduite scandaleuse qu'elle avait tenue avec Saladin. Est-il vraisemblable qu' entre 1149 et 1152, temps auquel cette princesse recevait I'affront le plus sanglant, ou tout au moins etait dans une position desagreable, elle s'occupa a rediger des projets des lois maritimes ? Cela n'est pas presumable, parce qu'elle etait occupee d'une affaire de tout autre interet." ^ He re- lates the difficulties and adventures that marked the career sade to the holy land. Whilst on that expedition, it is said, that she became acquainted with the Consolato, and conceived the purpose of framing a sys- tem of laws for her native province of Guienne. It is pretended, that on her return home, she caused a compilation to be made of the maritime sen- tences and judgments of the West, which was promulgated under the title of Role d^ Oleron, about the year 1150. Two years afterwards Eleonora was divorced from Louis. The same year she married Henry, Duke of Nor- mandy, who afterwards became king of England, underthe title of Henry 11. Several children were the fruit of this marriage, Richard being the third son. He succeeded to the throne ia the year 1189, a period of thirty-nine years having elapsed, since the laws of Oleron were published. Azuni, after stat- ing these facts, rejects, as idle, the story that the laws of Oleron were enacted by Richard. Azuni's Maritime Law, vol. i. p. 378-380. The prin- cipal ditficulty in the way of an elucidation of the rival claims to the author- ship of the Role d'' Oleron, consists in the fact that we are unable to ascer- tain the precise date when the work was promulgated. Vide Cleirac's preface to his work, entitled Us et Coutumes de la Mer, inserted in the " Sea Laws," p. 117. ^ Hallam's Middle Ages, vol. i. p. 482. Luder's Tracts on the Law and History of England, vol. ii. Tract vii. Consulat de la Mer, vol. i. p. 93. Vide also the preface of Pardessus to the Laws of Oleron. 2 Ibid. p. 99. 3 Consulat de la Mer, vol. i. p. 97. CH. I.] HISTORY OF MARITIME LAW. 17 of Richard and thus conchides : — "C'est done vers 1194, suivant Clairac, epoqne a laquelle Richard vexait son peuple, faisait des proiiesses en tout genre, qu'il acheva les Roles d'Oleron. Ne voit-on pas dans cette assertion une chimere des plus invraisemblables ? " ^ "§. 21. A translation of the Role (VOleron, is contained in the Sea Laws. The date affixed, is 1266. But the author of the Sea Laws supposes this date, and the teste to denote merely that it was a copy taken out by a notary from the original. It is a question of no moment when or by whom these laws were compiled. Their value is neither enhanced nor diminished by its decision. It is enough to know that they were the established regulations of the early commer- cial states of Western Europe, and are still extremely re- spected in France, England, and the United States. The better opinion however seems to be, that the Laws of Oleron were compiled in France, in the reign of Louis IX. ^ <§. 22. " The laws of Oleron," said Peters, J. in the case of Walton V. The Ship Neptune,^ "contain the principles of all the maritime laws of the European Western nations, con- cerned in commerce, with some particular exceptions, in par- ticular cases. They are yet in force, and acknowledged in their great and leading principles, by all the trading nations, though some of their harsh and severe punishments, and pe- cuniary mulcts, for crimes and offences, are out of use. Whenever any of their regulations are modified or contra- dicted, they are so modified or opposed by special ordinances, binding only in the particular state making them." <§. 23. It should be observed, that in strictness, neither the laws of Oleron, nor any of the maritime ordinances, nor the civil law, have the binding authority of law in the courts of • Consulat de la Mer, vol. i. p. 97. 2 Ilallam's Middle Ages, vol. i. p. 182, 3 Petera's Adm. Decisions, vol. i. p. 142. 2* 18 MARITIME LAW. fCH. I. this country. They are looked to as evidence of what the maritime law is, and to that extent are in force, both in Eng- land and the United States. The position they hold in our jurisprudence is stated by Tilghman, C. J. in the case of Mor- gan V. Insurance Company of North America.^ " They and the commentaries on them," he says, " have been received with great respect in the courts both of England and the United States, not as conveying any authority in themselves, but as evidence of the general marine law. When they are contra- dicted by judicial decisions in our own country, they are not to be regarded ; but on points which have not been decided, they are worthy of great consideration." Of the Laws of Wishiiry. ^ 24. The town of Wisbury, in the Island of Gothland, now scarce remembered, was formerly the seat of commer- cial empire. Its history is brief. It was built by foreigners, in what year is not known. Its growth at first, was greatly impeded by the hostility of the inhabitants of the Island. Constant collisions occurred between them and the new comers, until at length, in the year 1288, a decisive battle was fought, in which the Gothlanders were defeated, and with immense slaughter. To guard against future attack, the people of Wisbury now obtained permission of Magnus I. King of Sweden, to fortify the"ir city.^ They in- closed it with a wall above thirty feet high, and strength- ened this defensive rampart, by bastions and towers. From this period Wisbury flourished in a wonderful manner. " There was no city so full of merchants and so famous for 1 4 Dall. R. 358. See also Odlia v. The Ins. Co. of Penn. 2 Wash, C. C. R. 315. 2 The account of Wisbury, contained in the text, is derived from Olaus Magnus, one of the Gothic historians ; but Puffendorf, in his History of Swe- den, says that " King Magnus inflicted severe punishments on the citizens, who had fortified their city without giving him notice, and he made them enter into an engagement in writing to be obedient to his crown." en. I.] HISTORY OF MARITIME LAW. 19 its commerce." Here were Swedes, Russians, Flemings, Vandals, English, French — every people of Europe were represented. Each nation had its quarter, its church and house of assembly. The most extensive privileges were granted to all. Occupying a central position in the Baltic sea, Wisbury was a natural depot for the metals, furs, and productions of the North. And to exchange for these, hither came the merchants of the East, crossing the vast steppes of Russia to Novogorod, and thence by water carriage to Wis- bury, bringing with them the merchandise of the Orient. Here they met the traders of Western and Southern Europe, resorting to this commercial emporium with the products and manufactures of their respective countries, to engage in traffic. From this universal -commerce, Wisbury derived vast wealth. Her merchants were literally " princes of the sea." Their houses rivalled in extent and beauty the palaces of kings. But in this instance, the admonition of the muse, that " trade's proud empire hastes to swift decay," was verified. The rise of the Hanse Towns, and dissensions among the people of Wisbury themselves, conspired to the ruin of their city. Factions within, invite interference and attack from without. And no state or city can long survive domestic strife and foreign war. The historians have failed to tell us the causes from which sprung the unhappy disputes among the people of Wisbury. They simply inform us that they ended in the ruin of city and citizens. Waldemar of Den- mark stormed and sacked the city in 1361. It was rebuilt by Albert, King of Sweden, but never recovered its former trade. A constant object of attack from its neighbors, Wis- bury soon lost its rank as a commercial city and sank into oblivion.^ 1 Mr. Laing, in his Tour in Sweden in 1838, visited Wisbury, and ho gives US a very interesting description of its present state. " This ancient city," he says, " is the most extraordinary place in the North of Europe. It is a city of the Middle Ages — existing unbroken and unchanged in a great measure to the present day. It appears to have undergone less alteration from time, devastation, or improvement, than any place of the same anti- 20 MARITIME LAW. [CH, I. <§> 25. From the extraordinary progress of Wisbury in wealth, from the extent and comparative permanence of her commerce, we should naturally infer both the excellence of her political institutions, and the wisdom of her maritime legislation. Communities cannot subsist without laws. An ultimate and uniform standard, by which to determine rights and redress wrongs, is absolutely essential in every condi- tion of society. But especially is it indispensable, when a whole community is engaged in a common pursuit, with the competition and endless conflict of individual interests, which are inseparable from such a state. If it is wanting, the pur- suit will be either voluntarily abandonded, or violence will ensue and lead to its destruction. • <§. 26. Wisbury, although part of the domain of Sweden, and nominally subject to that power, was in reality an inde- pendent republic. Her laws gave equal protection and con- quity. The appearance from the sea of this mother of the Hanseatic cities is very striking, from the numerous remains of churches and ancient struc- tures within a small space. I counted thirty-five towers, spires, or promi- nent ruins. On landing, the aspect is equally novel. Ancient streets, well paved, cross each other in all directions, and the causeway work, with two or three parallel bands, or stripes of larger paving stones, running length- wise through the streets, looks ornamental, or at least regular. I have seen such paving about some cathedral in England. The houses on each side of these ancient streets are in general poor cabins, with gardens, potato ground, and corn crops, all huddled together, among ruins of churches of very extra- ordinary beauty and workmanship, and, as ruins, in very picturesque pre- servation. The whole city is surrounded by its ancient wall, with towers — square, octagonal, and round — as they stood in the thirteenth century, and with very little demolition. The wall is entire, and above thirty feet high for the greater part, and is in no place demolished. Of forty-five towers upon it, the greater part entire — some are roofed in, and used as magazines, a prison, storehouses, or workshops. There has been no ditch This curious city (which might accommodate within its area and along its paved streets 30,000 or 40,000 people) contains at present only 4,268 inhabit- ants, badly lodged in little tenements, under edifices of great cost and magnificence, which the former inhabitants reared with the superfluity of their wealth. You scarcely see a human being moving in streets once crowded with the wealthiest merchants of all countries." en. I.] HISTORY OF MAllITIME LAW. 21 ferred equal privileges upon all, whether strangers or citi- zens. Her commercial code, compiled for the use and under the direction of her merchants, " was submitted to in all causes relating to sea aflfairs, and past for just on all the coasts of Europe, from Muscovy to the Mediterranean."^ <5. 27. The maritime laws of Wisbury were promulgated about the year 1288.- An English translation of them, in sixty articles, is contained in the " Collection of Sea Laws." On many points they coincide with the laws of Oleron. They are still observed in their fundamental principles by the Baltic nations, and are deservedly received with great respect in the courts of this country. Apart from their general prin- ciples, they possess an especial interest from the circumstance, that they contain the earliest mention of the contract of ma- rine assurance. If the merchant, says the G6th article, oblige the master to insure the ship, the merchant shall be obliged to insure the master's life against the hazards of the sea. Of the Maritime Ordinances of the Hanse Toions. <§> 28. The laws of Wisbury, together with the laws of Oleron, were the basis of the maritime ordinances of the Hanseatic League. That famous confederacy traces its origin to the cities of Lubec and Hamburg. The precise date of their alliance is not certainly known. Azuni fixes it in the year 1164,^ but Robertson ^ and Hallam^ in the middle of the thirteenth century. The original purpose of the con- federation was the prosecution of commerce. But the un- civilized state of Northern Europe at that period, the " savage clans and roving barbarians," that infested sea and land. 1 Olaus Magnus, lib. 10. cap. 16. 2 Sclden, Mare Clausum, lib. 2. cap. 21. 3 Maritime Law, vol. i. p. 383. < History of Charles V. vol. i. p. 63. ^ Middle Ages, vol. i. p. 477. 22 MARITIME LAW. [CH. I. compelled the members of the league to unite to the funda- mental object of the association, that of military defence and protection. As the value and importance of the confedera- tion were evinced, other cities and commercial towns acceded to it, until finally " eighty of the most considerable cities scattered through those extensive countries, which stretch from the bottom of the Baltic to Cologne on the Rhine," ^ were numbered in the Hanse Towns. «§, 29. The members of this powerful association, says Robertson, formed the first systematic plan of commerce known in the Middle Ages, and conducted it by common laws, enacted in their general assemblies. They supplied the rest of Europe with naval stores, and pitched on differ- ent towns, the most eminent of which was Bruges, in Flan- ders, where they established staples in which their commerce was regularly carried on. Thither the Lombards brought the productions of India, together with the manufactures of Italy and exchanged them for the more bulky, but not less useful commodities of the North. The Hanseatic merchants disposed of the cargoes which they received from the Lom- bards in the ports of the Baltic, or carried them up the great rivers into the interior parts of Germany.^ <§. 30. The towns composing the Hanseatic League had permission, from their respective sovereigns, to join it, and when that permission was withdrawn the League was dis- solved. Mr. Ward, in his history of the Law of Nations, has adduced proofs that until the fifteenth century the Hanse Towns constituted a Federal Republic, and exercised the rights of sovereignty.^ We know from history, that their political power was equal to their commercial, and com- manded the respect of the greatest monarchs. By maintain- 1 Hallam's Middle Ages, vol. i. p. 477. 2 Ibid. 3 Vol. ii. pp. 276-290. The League secured an intercommunity of citi- zenship and privileges like the American Union. CH. I.] HISTORY OF MAllITDIE LAW. 23 ing, in the administration of their external affairs, a bold and determined attitude, and by the observance of good faith among themselves, the Hanseatic confederacy was enabled, through a long period, for several centuries, indeed, to pre- serve its independence in the face of Europe, and to promote the common-weal. The jealousy of the European powers, private interest, and the force of time, have reduced the once formidable Hanseatic confederacy to the three towns of Ham- burg, Lubec, and Bremen.^ <§> 31. We have already observed that the basis of the maritime ordinances of the Hanse Towns is found, to a con- siderable extent, in the laws of Wisbury. Indeed, the laws of Oleron and Wisbury, for a long period, constituted their marine code.^ It was not until the year 1591, that they compiled and adopted a system of their own. This was afterwards, in the year 1614, enlarged and corrected at a general assembly of the deputies, convened at Lubec. This latter compilation under the title oi Jus Hanseaticum Mari- iimiun, became the rule of decision in every contested point.^ It mentions the contract of bottomry, but is silent with respect to marine assurance. That most beneficial principle, introduced by the merchants of Wisbury into their laws, was not, it seems, sufficiently appreciated by the merchants of the Hanse Towns, to obtain a recognition in their code."* 1 Aziini's Marit. Law, vol. i. p. 389. ■2 Park's Marine Lis. Introd. p. 28. 3 Ibid. 4 The Hanseatic laws confirm the historical statement of the general pre- valence of piracy in the thirteenth and fourteenth centuries. No rich vessel was secure from attack. Hallam's Middle Ages, vol. i. p. 482. The pirate, "darling along the bosom of the ocean, under the impartial radiance of the heavens," prosecuted his plans of plunder with a boldness commensuvale with the spoil to be won. Governments neither interposed to check his pur- suit or punish his crimes. They either feared his audacity or were bribed by his gold. The Ilansc Towns provided for this ever-impending danger. The seamen arc obliged to defend the ship against Rovers, (says the 35th article of their code,) on pain of losing their wages, and if they are wounded, 24 MARITIME LAW. [CH. I. Of the Maritime Ordinances of France. ^ 32. We have now traced the history of the maritime legislation of the Middle Ages, so far as it relates to the more important compilations of maritime rights and usages of that period. In the condition that legislation left it, so maritime law continued, until Louis XIV. established the marine ordi- nances of 1673 and 1681, which enlarged its foundations, arranged its parts, and out of various materials constructed a harmonious system. Those monuments of wisdom and learning owe their erection to the genius and encouragement of that illustrious minister, of whom it has been said, that if Louis XIV. gained the title of great, it is to Colbert he is indebted for that glorious appellation. An English transla- tion of the ordinance of 1681 is contained in the " Sea Laws." The present commercial code of France, adopted in 1807, and said at the time to be conceived by the inspira- tion of the greatest man in history, is substantially but a republication of the ordinances of '73 and '81. It is, how- ever, more comprehensive in its plan, and embraces the sub- jects of partnership, common-carriers, bankruptcy, insolvency, and stoppage in transitu. «§> 33. The ordinance of 1673 treated at length of nego- tiable paper. The ordinance of 1681 embodies in system- atic order the subjects of navigation, shipping, insurance, and bottomry. It forms, says Marshall, in his work on Insur- they shall be healed and cured at the general charge of the concerned in a common average. If any one of them is maimed and disabled, he shall be maintained as long as he lives, by a like average. If, however, the mari- ners, or any of the company, (says the succeeding article,) refuse to assist on the like occasion, and the ship be taken or lost, they shall be con- demned to be whipped as cowards and rascals. But, on the other hand, if the mariners resolve to defend the ship, and the master is afraid and against it, then he shall be degraded from his office. He shall be turned out of his post with infamy, (says the 37th article,) and declared uncapable of ever commanding a ship afterwards. CH. I.] HISTORY OF MARITIME LAW. 25 ance, a system of whatever experience and the wisdom of ages had pronounced to be most just and convenient in the marine institutions of the maritime states of Europe. And though it contains many new regulations, suggested by motives of national interest, yet it has hitherto been esteemed a code of great authority upon all questions of maritime law. Lord Mansfield, who appears to have taken much pains to obtain the best information, and to possess himself of the soundest principles of marine law, and of the law of insur- ance, seems to have drawn much of his knowledge upon these subjects from this ordinance and from the elaborate and useful commentary of Valin.^ <§. 34. Notwithstanding the lasting fame that would crown the compilers of the Ordinance de Mari7ie, their names remain unknown. " Though the event be of so recent a date, and occurred at the most polished and literary era in French his- tory, neither letters, nor gratitude, nor national vanity, have been able to rescue their names from oblivion." ^ In the preface to the English translation, it is quaintly observed, that " the famous Colbert was the principal contriver of the excellent regulations for exchange and commerce already spoken of; and, in a word, being acknowledged by all to be a 1 Marshall on Insurance, Introd. p. 18. Judge Story, in speaking of the French ordinance of 1G81, refers to the Commentary of Valin, in terras as happy as they are appropriate and just. " Excellent, however, as this code is," he observes, " it stood in need of a philosophical commentator, to explain its principles, to follow them out into all their minute consequences, and to illustrate and strengthen them by the lights borrowed from the whole body of maritime jurisprudence. The middle of the eighteenth century witnessed the perfect accomplishment of this great task, after the failure of other attempts had almost extinguished every hope. Valin has the singular merit of having produced a Commentary, which in celebrity has eclipsed even tlie text Itself, and in authority stands equally high with the positive regulations of the Royal ordinance It is to be lamented that tho author scarcely lived long enough after the publication to enjoy the reward of his labors. His fame — it may, perhaps, perish — but it will cast the last stream of its light upon the last ruins of time." 2 Kent, vol. iii. p. IG. MAR. 3 26 MARITIME LAW. [CH. I. competent judge of all such matters, a perfect deference was ever had for his opinion about every thing that had any relation to trade. However, that accomplished minister being sensible, that, (considering the other great affairs of state, with which the manifold dignities he deservedly possessed at court, did necessarily oblige him to be taken up,) he could not apply himself so much as he desired to the improvement of commerce, which was his darling study, he so highly en- couraged the industry of other fit persons, and so favorably received any proposition made for the advancement of traffic and navigation, that the hopes of preferment setting people's brains a working, the naval and mercantile polity of France was soon reduced into a method that could not miss of mak- ing it flourish and prosper almost all the world over." <§> 35. It is a little remarkable that the most commercial nation of modern times should have framed and established no general code of maritime law. The maritime jurispru- dence of England is grounded on the law -merchant, which is a branch of the law of nations, and forms a part of the Eng- lish Common Law, and on the rules and usages which pre- vail among commercial men in all countries. Her courts of admiralty, like those of the United States, proceed according to the civil law, the laws of Oleron, and other generally received collections of maritime law, the customs of admi- ralty, and particular statutes.^ <§, 36. In the compilations and ordinances we have men- tioned, will be found the substructure of the existing mari- time law of the commercial world. We shall not here pause, and, indeed, it does not form any part of the design of this chapter, to particularize the works of learned civilians, nor to point out the merits of the admiralty decisions of the English and American courts. Those works and decisions, 1 Blackstone's Comm. vol. iv. p. 67. Azuni's Maritime Law, vol. i. p. 400, translator's note. CH. I.] HISTORY OF MARITIME LAW. 27 it is true, have illustrated the genius and established the fsime of their authors, and built up the fabric of marine law as we now behold it, in systematic and beautiful propor- tions. But we shall have occasion to call the reader's atten- tion to them, when we come to treat of the subjects to which they especially relate. Their merits will then fully appear and pronounce their own eulogy. We may be pardoned, however, if we quote, in this place, the tribute which Chan- cellor Kent, {clanim et venerahile iiomen,) pays to the value of those monuments of juridical learning. <§> 37. "The English maritime law," he observes, "can now be studied in the adjudged cases, with at least as much profit, and with vastly more pleasure, than in the dry and formal didactic treatises and ordinances professedly devoted to the science. The doctrines are there reasoned out at large, and practically applied. The arguments at the bar and the opinions from the bench are intermingled with the gravest reflections, the most scrupulous morality, the soundest policy, and a thorough acquaintance with all the various topics that concern the great social interests of mankind." " The decisions in the Federal Courts in commercial cases, have done credit to the moral and intellectual character of the nation ; and the admiralty courts, in particular, have dis- played great research, and a familiar knowledge of the prin- ciples of the marine law of Europe. But I should omit doing justice to my own feelings, as well as to the cause of truth, if I were not to select the decisions in Gallison's and Mason's Reports, as specimens of preeminent merit. They may fairly be placed upon a level with the best productions of the English Admiralty, for deep and accurate learning, as well as for the highest ability and wisdom in decision," ^ 1 Comm. vol. iii. pp. 18, 19. 28 MARITIME LAW. [CH. U. CHAPTER II. OF THE SEA. <§) 38. The ocean, boundless and inexhaustible, not dimi- nished by use, incapable of possession, the natural thorough- fare of nations, is common to all mankind, and proper to none. No nation has absolute sovereignty of the sea, nor more rights and privileges with respect to it than belong to all other nations. But such is the arrogance of maritime power, or the inordinate ambition of human nature, that such sovereignty has been asserted by one nation or another in almost every period of the world. «§, 39. It should be observed, that writers on public law distinguish between property and empire. The first implies a right to enjoy a thing exclusively, and even to dispose of it ; the second a right to demand obedience, respect, and honor from those who make use of it.^ <§) 40. It was the empire of the sea that has, at different times, and by different nations, been claimed. In modern times, this claim has been limited to particular tracts and portions of the sea, or, more accurately, to particular seas. Louis XIV. set up a claim to the Mediterranean, England to the British Channel, Spain and Portugal to the Western and Eastern oceans, Genoa to the Ligurian Sea, and Venice to the Adriatic- This claim of dominion has been defended 1 Marten's Law of Nations, p. 158. 2 Venice, in addition to her naval supremacy, claimed, as is well known, the sovereignty of the Adriatic, by virtue of a papal grant. When the Doge Sebastian Ziani, returned from his naval victory over the fleet of the Emperor Frederick Barbarossa, he was met by the Pope, Alexander the 3d, who presented him with a ring, with this address : " Use this as a chain to CH. n.] OF THE SEA. 29 • upon the ostensible ground of prescription and occupation; but in naval power and achievements will be found the real source of the pretension. Happily for the peace of the world, it is now abandoned. Justice and more enlarged views of international rights, a clearer and better insight into the true and natural foundation upon which rests all territo- rial jurisdiction, led to its renunciation. The Open Sea — The Territorial Sea. <§. 41. The open or high sea is the main ocean. This, we have already observed, is the common property of all man- kind, and can be exclusively appropriated by none. But those parts of it commanded by the shore are susceptible of dominion, and constitute a portion of the territory of the sovereign of the coast. The peculiar right upon which this maritime sovereignty is founded, is possession. For, when I once assume possession of a thing, the exclusive property of no one, with the intention of permanently holding it, the fact that I can at all times maintain the possession and ex- clude others, gives me property in it.i And possession does hold the waves in subjection to the empire of Venice. With this ring espouse the sea, and hereafter, on the same day in every year, let the cele- bration of this marriage be renewed by you and your successors. By this ceremony, posterity will learn that your arms have acquired the vast do- minion of the waves, and that the sea is subject to you as the wife to her husband." The Venetians, obedient to the injunctions of the Pope, annually performed, with great pomp, the ceremony of espousing the sea, until, as has been humorously observed, (Azuni's Maritime Law, vol. i. p. 92, note,) the treaty of Campio Formio, confirmed by that of Lunerville of the 9th of February, 1801, between France and Germany, dissolved the marriage. 1 To claim the sole property of a thing, says Mr. Marten, in his Sum- mary of the Law of Nations, a person must, Firsf, have been able to hold it legitimately, and must have a good reason for his exclusive possession. This reason may be founded on the inutility of the thing, if its use remained in common, or on ihc security of the possessor's property already lawfully acquired, whicli may require an exclusive possession of something wliicli of itself he would not want. Secondly, It must have been efiectively possessed ; that is to say, seized with an intention to be kept. Thirdly, The claimant must be in a situation to maintain the possession of the thing claimed. 3* 30 MARITIME LAW. [CH. II. • not imply actual physical occupation. Id cerium est quod certum reddi potest. So with regard to possession. The control over a thing, the power at all times to reduce it to possession, is possession itself. The sovereign of the coast has, by means of fire-arms, the effectual control of the adja- cent sea. And this, in law, is equivalent to possession. The doctrine is, terra, dommium finitur, uhi finitur armoriim vis : and that distance is deemed to be within cannon-shot of shore. 1 The rule of law is felicitously expressed in the following lines: Far as the sovereign can defend his sway, Extends Ms empu-e o'er the wat'ry way ; The shot sent thundering to the liquid plain, Assigns the limits of his just domain. An Inclosed Sea. <§, 42. An inclosed sea, mare clausum, is one whose shores and mouth are included within the limits and belong to one na- tion.2 Such sea is capable of being occupied and possessed the same as the land ; and the dominion over it rightfully apper- tains to the sovereign within whose territory it is embraced. He may permit, restrict, or prohibit the navigation of it to whomsoever he pleases. The vast extension of the Roman Empire came at last to include the entire territory that sur- rounds the Mediterranean. As this sea, says Vattel, had an absolute communication with none but their state, they (the Romans) were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns and provinces.^ <§. 43. The doctrine, that the sovereignty over an inclosed 1 Grotius, De Jure Belli ac Pacis, B. ii. cap. iii. 13, 2. When those that sail on the coasts of a country, says this great publicist, may be compelled from the land, it is just the same as if they were actually upon the land. Vide also Vattel, B. i. chap. 23, p. 204. 2 Azuni's Maritime Law, vol. i. p. 194. Vattell, B. i. chap. 23, p. 208. 3 Vattel, B. i. chap. 23, p. 208. CH. II.] OF THE SEA. 31 sea belongs to the nation whose lands surround it, does not, from analogy or otherwise, apply to narrow seas. These are common to the whole world. No nation can rightfully obstruct any other nation in the free use and enjoyment of them, nor prescribe conditions upon which that use and enjoyment shall depend. The empire over the Baltic Sea was at one time claimed by the Baltic powers, but it was practically renounced by the treaty of 1730, between Den- mark and Russia, and the peace of Abo, in the year 1743, be- tween Russia and Sweden. The English formerly claimed dominion of the neighboring seas, as far even as the opposite coasts ; a claim, says the learned Dr. Arthur Browne, which could have been founded only in treaty, and if it rested merely on use, was supported solely by power. The license of Britain was the sole key to the navigation of those seas, a claim as extravagant as it was haughty,^ and which can now be regarded, observes a late writer, Richard Wildman, Esq., in a very recent work, entitled Institutes of Interna- tional Law, in no other light than as a mere legal curiosity.^ 1 Civ. and Adm. Law. vol. ii. p. 9. 2 Vol. i. p. 49. The English writers on maritime law, of the last cen- tury, manifest the utmost bitterness, when replying to those authors who deny the sovereignty of England to the Four Seas. " After the writings of the illustrious Selden," says MoUoy, "certainly it's impossible to find any prince, or republic, or single person indued with reason or sense, that doubts the dominion of the British Sea to be entirely subject to the Imperial Dia- dem, or the duty or right of the Flag, which indeed is but a consecutive acknowledgment of that ancient superiority. Yet there have not been wanting some, who, though they have not questioned the former, have highly disputed the latter. But there are some fatal periods amongst our northern regions, when the inhabitants do become so brutal and prejudicate, that no obligation of reason, prudence, conscience, or religion can prevail over their passions, especially if they become the devoted mercenaries of an implacable faction, in opposition to all that can be called either just or honorable ; we need not rip up the carriage of that late insolent son of a tallow-chandler, whose deportment made him no less insupportable at home, than he was amongst /orej> princes; the testimonies of his greatest i)art3 and abilities being no other than monuments of his malice and hatred to this nation, and records of his own folly. But prmces arc not to be wrangled out of their ancient right and regalities by the subtile arguments of wit and sophistry ; nor 32 MARITIME LAW. [CH. II. The Territorial Waters of a State. <§> 44, A nation has both the empire and property (indeed, the former is an incident of the latter, although the converse of the proposition does not hold good) in all the waters comprehended within its limits. In lakes, rivers, in the waters included in bays, and between embracing and project- ing points of land, in frontier waters, to the middle thereof, where the opposite banks are occupied by another nation,^ in straits and in the contiguous sea, as far as cannon-shot from shore. Of Straits. «§, 45. When the shores of a sea are possessed by one or several nations, and the strait which forms its outlet by one or more, the sovereign of the strait cannot refuse a passage to the sovereign or sovereigns of the surrounding territory. When a strait is so situated that it forms a necessary com- munication between two seas, which are free to navigation, the strait must also be free. «§, 46. Whilst the general principle, with respect to the freedom of straits, is universally conceded, the necessities of self-defence have ingrafted upon it a very salutary limita- tion. The safety of a sovereign of a strait would be ex- posed to constant jeopardy, if the right of free navigation included ships of war. These, therefore, he may exclude, if he should think proper to do so. Thus, whilst the Bos- are they to be supplanted or overthrown by malice or arms, so long as God and good men will assist, in which his sacred majesty did not want, when he asserted his right with the blood and lives of so many thousands that fell in the dispute." De Jure Maritimoet Navali, B. i. cap. v. 1 It should be understood, with respect to frontier waters, that the doctrine of the text does not, as a general rule, apply to those which are wider than two cannon-shots. In that case, the maritime territory of the sove- reign of the coast would be limited by the same rule that defines and limits it with respect to the adjacent sea. CH. II.] OF THE SEA. S3 phorus and the Dardanelles are free to the merchant vessels of those powers, havmg the right to navigate the Black Sea, the Ottoman Porte very properly refuses a passage to ships of war. And, so important is the strict observance of this pro- hibition to the safety of the sovereign of the strait, that its violation would be justly considered as a casus belli. <§, 47. From tacit consent and the absence of prohibition, foreign vessels of war freely pass and repass the Danish Sound ; but it is claimed by the Baltic powers, that the Bal- tic Sea is mare clausum against hostilities upon its waters by other states, whilst they themselves are at peace.^ In the Russian Manifesto of 1807, declaring war against England, the violation of the rights of the Baltic nations by the Eng- lish naval forces in that year, entering the Danish Sound and attacking the Danish capital, is alleged as one of the proxi- mate causes of the war.^ 1 Wheaton's International Law, p. 223. 2 Allison on the French Revolution, English edition, vol. vi. 473-501. " By which (the prerogative of defending myself) I am also empowered to invade and seize upon what belongs to another, without considering whether he be in fault or no, whenever what is his threatens me with any imminent danger." De Jure Belli et Pacis, B. iii. c. i. s. 11. On this ground, the English cabinet and English historians have defended the attack on Copenha- gen. But the case specified by Grotius is of a different character from the one sought to be defended by his authority. England was not " threatened with imminent danger " from the fleet of Denmark. The danger, if there was danger, was contingent, remote, not pressing and impending. And it is only upon the latter ground that hostile action is justifiable. Nations in their intercourse are bound to presume that each will do what is just and right. But England acted upon a contrary maxim. She acted upon the presump- tion that Denmark, at the summons of France, would cease to be neutral, and become belligerent. Hostilities, committed upon an apprehension of a condition of things that may never occur, are indefensible. I have no right to inflict evil on another, to prevent anticipated evil to myself, when the anticipation is not based upon circumstances of imminence. I have no right to injure or disable my /rienrf, because from a knowledge of existing facts, I fear that he may be made in the future an instrument of injury to me. These principles are dcducible from the language of Grotius himself, whose author- ity is relied upon to sustain the action of England, in seizing the Danish fleet. In B. ii. chap. i. s. v. 1, 2, he says : " We may kill the aggressor, 34 MARITIME LAW. [CH. II. <§> 48. Whilst a strait is free to navigation to the extent specified in a preceding section, the sovereign of it may- impose reasonable duties on the passage of vessels, to indem- nify himself for maintaining guard-ships, lighthouses, and landmarks, and for the expenses of pilots and signals. The tariif of duties is usually established by treaty. Denmark asserts supremacy over the sound and the two belts which form the outlet of the Baltic Sea into the ocean, and imposes a tax upon the passage of vessels either entering or going out. Her right to impose this tax is claimed on the ground of ancient usage, and the recognition of it by European govern- ments, in a long succession of treaties. Denmark, for several centuries, had possession of both shores of the Belt and Sound, and the Sound dues were instituted at that period. When she ceded the province of Scania to Sweden, in 1658, it was stipulated that Sweden should never claim the Sound duties in consequence of the cession, but should receive a compen- sation for maintaining lighthouses on the coast of Scania.^ It is contended, by the Danish jurists, that the exclusive right of Denmark was preserved in its entirety by this stipu- lation. <§. 49. The treaty of 1645, between Denmark and Holland, and the subsequent one of 1701, between the same parties, as the only means left to preserve ourselves." " But here it is neces- sary that the danger be present, and as it were contained in a point." " Though we were certainly informed that a person has conspired against us, or designs to lay an ambush for us, or is preparing to poison us, to bring a false accusation against us, to suborn false witnesses, and to cor- rupt the judges ; yet, whilst we have nothing to fear for the present, on the part of that person, I maintain that we cannot lawfully kill him, if either such a danger can possibly be avoided any other way, or even if it does not then sufficiently appear that it may not be avoided. For time gives us fre- quent opportunities of remedy, and there may many things happen, as the proverb has it, inter os et ossam (betwixt the cup and the lip-)" Tried by these principles, and the seizure of the Danish fleet stands with- out justification or excuse. But in such portentous times as Europe witnessed during and subsequent to the French Revolution, much must be pardoned to the national instinct of self-preservation. 1 Wheaton's International Law, p. 231. CH. II.] OF THE SEA. 35 amendatory and explanatory of the former, definitely ascer- tain the amount of duties to be levied on the passage of the Sound and Belts, and have been considered the basis of all subsequent treaties.^ By the treaty of 1701, it is stipulated that the privileged nations, or those who have treaties with Denmark, shall pay an ad valorem duty of one per cent, on all articles not specified in the treaty of 1645 ; but the mode of estimating the value of these articles, adopted by the Danish government, made the duty to appear uncertain and fluctuating. This gave rise to complaint and negotiation.- By the arrangement of 1S41, between Denmark and Eng- land, which was to subsist for ten years, and the benefit of which was extended to all privileged nations, ours among the number, the duties on non-enumerated articles were made specific, and the amount on some of the enumerated ones were reduced.^ At the same time the fluctuating manner of levying the duties, which had come to be a great abuse, was corrected. The Dominion of Territorial Waters Absolute. «§. 50. The sovereign of a state may prescribe the condi- tions upon which the vessels of other nations may enter or approach his harbors and roads, or exclude them altogether. But a general license is implied from the absence of prohibi- tion. This right of control and exclusion has been enjoyed without serious question, by all nations, from the remotest antiquity. It flows naturally from what Grotius terms the " prerogative of self-defence." * Publicists class it among the rights of property, and justly, for what belongs to me, cannot rightfully be used by another, except in a case of inevitable necessity, without my consent, expressed or im- plied. Eoriun qum natura fuerant com?nujiia, quod cuique 1 Webster's Diplomatic and Official Papers, p. 382. 2 Ibid. 3 Wheaton's International Law, p. 233. 4 B. iii. c. 1, 2. 36 MAKITIME LAW. [CH. II. obtigit, id qiiisque teneat. Eo quod si quis sihi appetet viola- bit jus humancB societas.^ § 51. As the contiguous sea, within cannon-shot of shore, is a part of the territory of the sovereign of the coast, it would seem to follow that he has the same right of control and exclusion, with respect to its navigation, as in the case of harbors and roads. The jurisdiction of a nation within its own limits or territory is necessarily exclusive and abso- lute. It is susceptible of no limitation not imposed by itself.2 It is true, that by the practice and comity of nations, the right, of which we are speaking, is rarely exercised. It is said, too, that the right to prohibit foreign vessels from navigating the waters adjoining the coast, is an abstract one, of a theoretical, rather than of a practical character, and is limited by another right, namely, the right of innocent use.^ But this is a right of imperfect obligation, and if denied, can- not be enforced. It must necessarily rest with the sovereign of the sea-coast, to judge whether the navigation of the ad- jacent sea is attended with loss, inconvenience, or danger to himself, and to refuse or allow it at his pleasure. But a wan- ton exercise of the right would bring upon him the just in- disnation of the world. ^ 1 Cicero, De Oif. lib. l,c. 4. 2 Schooner Exchange, 7 Cranch, 136. 3 DeJureB. ac. Pacis, B. ii.cap.iii. 12. Innocent use, is the right to the use of a thing belonging to another, which is inexhaustible with respect to its use, and may be used without inconvenience or loss to him who possesses the dominion. Vattel, B. ii. c. ix. p. 280. 4 " Every nation," says Chancellor Kent, (Com. vol. i. p. 34,) " is bound, in time of peace, to grant a passage, for lawful purposes, over their lands, rivers, and seas, to the people of other States, whenever it can be permitted without inconvenience ; and burdensome conditions ought not to be annexed to the transit of persons and property. If, however, any government deems the introduction of foreigners or their merchandise injurious to those interests of their own people which they are at liberty to protect and promote, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it." CH. II.] OF THE SEA. 37 Of Yisitation and Inquiry. <§, 52. The authority of a state within its own limits is absolute and exclusive. But its power to secure itself from injury is not necessarily confined within those limits, but may, in certain cases, be exercised beyond them.^ Hence, upon a principle just in itself and temperately applied, maritime states have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has, for their common convenience, allowed to be considered as parts of their dominions for various domestic purposes, and particu- larly for defensive regulations more immediately affecting their safety and welfare. Such are the English hovering laws, which, within certain limited distances, more or less moderately assigned, subject foreign vessels to such exami- nation.- The law of Congress of March 2, 1799, prohibiting foreign goods to be transhipped within four leagues of the coast, without payment of duties, is based upon this right of visitation. Within that distance, for the safety and protection of the revenue laws, it may be exercised.^ <§, .53. This right of visitation and inquiry, although it is exercised without the territory of a state, is by a fiction of the law of nations, considered to be within it. The limits assigned for its exercise, including as they do parts of the ocean which are common and unappropriated, are deemed by the " common courtesy " of nations, to be within the do- minion of the power that makes use of it. So that, in the- ory at least, no violence is done to the general principle, that the authority of a state is confined within its own territory. 1 Church V. Ilubhart, 2 Cranch, 165. 2 Le Louis, 2 Dod. 245. 3 Church V. Ilubhart, 2 Cranch, 1S7. MAR. 4 38 MARITIME LAW. [CH. H. Of Ports. «§, 54. The ports of a state are, in the absence of prohibi- tion, free to the ships of any friendly nation. But whilst there, if private vessels, they are under the jurisdiction of the territorial sovereign. He may of course relax his juris- diction and admit a concurrent jurisdiction. And when this is done, whether tacitly or expressly, the local jurisdiction cannot be asserted, until previous notice be given, without a violation of the comity of the law of nations. But there is no law, nor comity of nations, that requires a sovereign in the first instance to relax his jurisdiction ; nor is there any law of nations or comity of nations, that forbids his resum- ing exclusive jurisdiction of foreign ships, whilst in his ports, after notice given of his intention to do so. It should be observed, that the sovereign of the port may impose duties, tonnage, fees of entry, of clearance, upon foreign vessels resorting thither, and that these imposts are usual among all nations. 1 1 Mr. Webster, the American Secretary of State, in his letter to Lord Ashburton, the British Minister at Washington, with reference to the case of the " Creole," contended that the jurisdiction of a nation over a foreign ves- sel lying in one of its ports, was by no means exclusive. He stated that the rule of law, and the comity and practice of nations allowed even to a merchant vessel, coming into any open port of another country voluntarily, for the pur- poses of lawful trade, to bring with her and keep over her, to a very con- siderable extent, the jurisdiction and authority of the laws of her own coun- try, excluding to this extent, by consequence, the jurisdiction of the local lavv. A ship, say the publicists, though at anchor in a foreign harbor, pre- serves its jurisdiction and its laws. It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the state retains its juris- diction over them; and according to the commonly received custom, this jurisdiction is preserved over the vessels, even in parts of the sea subject to a foreign dominion. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and entirely conformable, as it is sup- posed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a passenger, or by a passenger on one of the crew or another passenger, while such vessel is lying in a port within the jurisdiction of a foreign state or sovereignty, the offence is cognizable and punishable by the proper court CH. II.] OF THE SEA. 39 <§> 55. National ships of war entering the ports of a friendly power open for their reception, are to be considered as ex- empted by the consent of that power from its jurisdiction. A public armed ship constitutes a part of the military force of her nation, acts under the immediate and direct command of the United Slates, in the same manner as if such offence had been com- mitted on board the vessel on the high seas. The law of England is sup- posed to be the same. It is true that the jurisdiction of a nation over a ves- sel belonging to it, while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlaw- ful acts done by her while thus lying in port, and for all contracts entered into while there by her master or owners, she and they must, doubtless, be answerable to the laws of the place. Nor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that the enlightened nations, in mo- dern times, do clearly hold that the jurisdiction and laws of a nation accom- pany her ships not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne, for the general purpose of regu- lating and governing the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself." Diplomatic and Official Papers, pp. 85, 86. The rights of the local jurisdiction may be relaxed and foreign private vessels be exempted from it, as to acts of international discipline of the ves- sel, and even as to crimes and offences committed by a person forming apart of its officers and crew, against another person belonging to the same, when the peace of the port is not disturbed. Vide Wheaton's Elements, 3d ed. pp. 152-151, where are cited two cases decided in France upon this sub- ject. Mr. Webster would seem to contend in the passage which we have quoted above, that the exemption of foreign private vessels from the local jurisdiction, to the extent he asserts, results from positive law ; that they are exempt because by the law of nations they are bound to be exempted. And in a subsequent part of his letter he says, " Your lordship will please to beat in mind that the proposition which I am endeavoring to support is, that by the comity of the law of nations and the practice of modern times, merchant vessels entering open ports of other nations, for the purpose of trade, are presumed to be allowed to bring with them and to retain for their protection and government, the jurisdiction and laws of their own country." And he adds that " this allowance is founded on the comity of nations, and this comity is part, and a most valuable and important part, of the law of na- tions, to which all nations are presumed to assent until they make their dis- sent known." 40 MARITIME LAW. [CH. II. of the sovereign, is employed by him for national objects. He has many and powerful motives for preventing those ob- jects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and dignity. The implied license, therefore, under which such a vessel enters a foreign port ought to be con- strued as containing an exemption from the jurisdiction of a sovereign within whose territory she claims the right of hos- pitality. Without doubt, the sovereign of the place is capa- ble of destroying this implication. He may claim and ex- ercise jurisdiction either by employing force, or by subject- ing public ships to the ordinary tribunals. But, until such power is exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to his ordinary tribunals a jurisdiction which it would be a breach of faith to exercise. These general statutory provisions, therefore, which are descriptive of the ordinary jurisdiction of judicial tribunals, which give an individual whose pro- perty has been wrested from him, a right to claim that property in the courts of the country in which it is found, ought not to be so construed as to give them jurisdiction in a case in which the sovereign power has impliedly consented to waive its jurisdiction. The injuries inseparable from the march of an army through an inhabited country, and the dangers attending it, do not ensue from admitting a ship of war without special license into a friendly port. A different rule, therefore, with respect to this species of military force, has been generally adopted. If, for reasons of state, the ports of a nation generally, or any particular ports be closed against ships of war generally, or against the ships of a particular power, notice is usually given of such exclusion. If there be no prohibition the ports of a nation are considered open to the public ships of all powers with which it is at peace, and they are supposed to enter such ports and to remain in them, while they are allowed to remain, under'the protection of the government of the place. ^ 1 Schooner Exchange, 7 Cranch, 116, Marshall, C. J. CH. II.] OF THE SEA. 41 Of the Impressment of Ships. <§> 56. It is asserted by writers on public law, that the sove- reign of a country possesses, in certain cases, and under certain restrictions, extraordinary power over foreign vessels riding in his ports and roads. He may, says Azuni, press them in the time of some public expedition, for the trans- portation of soldiers, arms, and other warlike ammunition, for a certain reward. ^ Molloy limits the right to cases of ex- treme necessity.- Beawes, in his Lex 3Iercatoria, says that it is certainly conformable to the law both of nature and nations, for a prince in distress, to make use of whatever vessels he finds in his ports, that are fit for his purpose, and may contribute to the successes of his enterprises ; but under this condition, that he makes them a reasonable recompense for their trouble, and does not expose either the ships or men to any loss or damage. <§. 57. There are cases certainly where a state may right- fully seize upon foreign vessels found in its ports, and coerce them into its service. We can readily conceive of circum- stances that would justify such an act of power. But its defence would assume high ground. It would plead the law of nature and the rights of self-defence, as its justifica- tion. Thus, in a case of necessity, so instant, pressing, and urgent, that it would admit of no delay, and no alternative, a nation of course would have a right arising from the very necessities of the case, to seize upon the property of foreign- ers, found within its limits, whether that property consisted in ships or in whatever else, and employ it in the public ser- vice. But that such a right exists, and may be exercised in any other than a case of necessity, the most perilous and extreme, surely cannot be admitted.^ 1 Azuni's Maritime Law, vol. i. p. 238. 2 De Jure Marit. B. i. c. G, ^ 4, 5. 3 Mr. ChiUy, in his work on the Law of Nations, p. 189, speaking of this asserted right of impressment, says, " The great danger consists in this 4* 42 MARITIME LAW. [CH. II. Of the Iimniuiity of Neutral Waters from Hostilities. *§) 58. Belligerents cannot exercise the rights of war within neutral territory. The seizure of a vessel within the range — that, of the necessity which is set up as the excuse, the interested party must be himself the judge, and having only his own conscience to consult as to its existence, he is but too apt to persuadehiraself that it is the same thing to possess the power and to labor under the necessity." It would seem from the language of Sir William Scott, in the case of the Carolina, 5 Rob. 256, that he did not recognize any right on the part of a nation to seize on foreign ships and compel them into its service. The Carolina was a Swedish ves- sel, and impressed by the French whilst in the port of Civita Vecchia, from whence she sailed, (the master not knowing on what destination,) with one hundred and fifty dragoons on board, in company with fifty-seven other ves- sels, on the French expedition to Alexandria. On the arrival of the vessel at Alexandria, the master applied for payment and for his discharge, but was put off. When the port of Alexandria was invested by the British forces, a notification was sent in giving permission to all neutral vessels to depart. This ship did not avail herself of that permission or set sail until four days after. When she came out of the harbor she was captured by a British man-of-war, and whilst in possession of the captors was lost, but without any imputation of neglect on their part. On board were found bills on the French government, and letters from the French commander, by which the fact of her having served as a French transport was fully proved. The own- ers of the vessel sought to recover her value from the captors, on the ground that the loss happened whilst the vessel was in the captor's possession, with- out any justifiable grounds of detention — that she was coerced into the French service, and so soon as the coercion was removed, her neutral character revived. That she placed herself beyond the French jurisdiction as soon as the state of the wind enabled her to sail out of the harbor of Alexandria. Sir William Scott. It does not appear that the master made any protest or remonstrance against this service, but rather in proof of his voluntary assent, he proceeded to insure the vessel, and to provide the necessary pro- visions for the voyage. It is now, however, said that this was an act under duress, and that it is a by-gone transaction. On the former part of this representation my opinion is, that a man cannot be permitted to aver, that he was an involuntary agent in such a transaction. If an act of force exercised by one belligerent on a neutral ship or person, is to be deemed a sufficient justification for any act done by him contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service the owner must look to the government CH. II.] OF THE SEA. 43 of a neutral's cannon by a foreign force, is an invasion of its territory, and a hostile act which it is its duty to repel. ^ Bynkershoek distinguishes the right to pursue from the right to attack. He contends that it is lawful to continue an attack already begun, by pursuing an enemy into a jurisdic- tional sea, even close to the land, or into a river, bay, or creek, provided we spare the fortresses, though they should assist the enemy, and provided there be no kind of danger to our friends. 2 He defends this distinction upon principle, and upon the ground of its sanction by the States-General. He admits, however, that he had never seen it mentioned, either that coerced his vessel for reparation, and he has no right to expect the captor to release it, or pay for the injustice of his public enemy. '^ It will be observed, that the circumstance of the master's not protesting or remonstrating against the coercion of his vessel, is objected by Sir William Scott against the owner's claim for indemnification for the loss of it. But if the law of nations authorized the seizure, why should the master protest against the proceeding. It is not easy to perceive what duty or obligation required him to remonstrate against the exercise of a clear right.* The inference is, that Sir William Scott did not regard the impressment of the vessel as a transaction authorized by the law of nations. Again, he says, " the owner had no right to expect the captor to release the vessel or pay for the i/yus/ice of his public enemy." The exercise of an admiUed right certainly cannot be termed an act of injustice. Prize courts administering the law of nations cannot sit in judgment upon the propriety or morality of an act permitted by the very law they are administering, and pronounce it unjust. When they proceed to do so, we may fairly infer that in their judgment, the act is not conformable to the law, nor authorized by it. We think itdeducible from the language of Sir William Scott upon which we have commented, that the inclination of his mind was, that impressment of vessels belonging to a neutral nation by a belligerent, is in violation of the law of nations. 1 Church V. Hubbart, 2 Cranch, 173 ; Duponceau's Bynker, p. 58. 2 B. i.p. 63. * " If this vessel ha0. 46 MAKITIME LAW. [CH. II. captured property. Some writers contend that he is under an obligation, when he fails to procure restitution, to redress the loss himself, upon the ground that he is bound to pre- serve the peace of his ports.^ This is saying no more than that he is bound to preserve his neutrality. If he permits one belligerent to make captures within his jurisdictional waters, he cannot deny the same privilege to, the other belligerent, without becoming a party to the war. In either case he loses his neutral immunity, and his territory is no longer exempt from hostilities. That is the penalty he incurs. Again, it is said that a belligerent within the mari- time jurisdiction of a neutral is under his protection, and from thence arises the obligation (when he fails to procure restitution of the captured property from the belligerent cap- tor) to redress the loss himself. This is saying, in effect, that whilst the neutral is performing an act of hospitality, he is answerable for, and must repair every loss arising to his ^uest from lawless violence or irresistible force. And this, too, when in fact, the rights of the neutral only have been invaded, and invaded because of his hospitality. The guest can claim exemption from attack only on the ground, that to attack him would violate the rights of his host. It seems to us that the reasoning, which maintains the obligation of the neutral to repair the loss arising from a hostile capture within his waters, is inconclusive. <§> 62. If the captured property is found in the hands of the captor, and within the neutral jurisdiction, it is the duty of the neutral power to restore it.^ In the year 1793, the British ship Grange was captured by the French frigate L'Ambuscade, in the waters of the bay of Delaware, and brought into the port of Philadelphia, to which she was bound. The British Minister demanded her restitution of the govern- ment of the United States. The French Minister, M. Tenant, * De Jure Maritimo, B. 1, c. i. p. 13. 2 The Arrogante Barcelones, 7 Wheaton's Rep. 496 ; La Atnistad de Rues, 5 Wheaton's Rep. 390 ; Kent's Com. vol. i. p. 121. CH. II.] OF THE SEA. 47 alleged that the bay of Delaware was an open sea, not sub- ject to the exclusive jurisdiction of the American govern- m%pt. His arguments had no effect, and the Grange was very properly restored.^ <§. 63. It seems doubtful whether the neutral is bound to restore the property when found within his jurisdiction, if it has once been carried infra prcusidia of the captor's country, and legally condemned. The doubt arises only in the case of the property being found in the hands of a bo?id fide pur- chaser, without notice of the unlawfulness of the capture. When it is found in the hands of the captor himself, claim- ing under the sentence of condemnation, it will be given up.^ It is not for the offender to claim a right springing out of his own wrong. His touch restores the taint from which, in the hands of a third person, the condemnation may have purified the prize. Courts of justice will never yield the locus standiin jiidicio to the suitor, who is compelled to trace his title through his own criminal acts.-^ <§. 64. The jurisdiction of the neutral will be exercised to restore the specific property, which has been brought volun- tarily within its territory, but not for the infliction of vindic- tive damages. It is no part of the duty of a neutral nation to interpose upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a capture between belligerents.'* 1 Duponceau's Bynk. p. 60, note ; The Anna, 5'Rob. 373. 2 Wheaton's Int. Law, p. 470. 3 The Arrogante Barcelones, 7 Wheaton's Rep. 518. * La Amistad de Rues, Wheat. 390 ; Wheaton's Int. Law, p. 470. So important is it dcentjed by respectable writers, tliat neutral powers should be exempt from the annoyance and danger of hostilities by belligerents, that they claim that the territorial sea, in time of war, should be extended to the distance of two leagues. Azuni's Maritime Law, vol. i. p. 200, 207 ; Boucher, Institutes of Maritime Law, ch. iii. It would seem that due regard to the rights of neutrals, as well as motives of humanity, should induce ilie civilized world to adopt a principle so just in itself and so beneficial to 48 MARITIME LAW. [CH. II. Of Embargoes. • <§, 65. Embargoes are of two kinds, warlike and civil. The former are enforced against enemies, the latter are em- ployed in the case of allies and subjects. The first kind of embargo is usually issued by a state in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some or all of the ports of such state, until further order.i Our Embargo Act of December, 1807. is an instance of the second kind of embargo. <§> 66. In the case of The Bcedes Liist,'^ Sir William Scott, in his usual full and lucid style, states the effect of a hostile embargo. In that case, an embargo had been laid upon Dutch property, previously to an open declaration of war, but under such circumstances of injustice on the part of Holland, as were considered by the British Court as amount- ing to an implied declaration of war, and the formal declara- tion, which afterwards supervened, was deemed to have a retrospective effect, confirming all that had been done by the embargo under the implied declaration. " The seizure," said Sir W. Scott, "was at first equivocal, and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo so termi- nated. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transac- tions end in hostility, the retroactive effect is directly the all parties. Our government, on several occasions, has expressed the opinion, that owing to the pecaliarities of our coast, the United States were entitled to as broad a margin of protected navigation as any nation whatever. Mr. Jefferson's letters to M. Genet, of May 15th, 1793, and November 8th, 1793, Wait's State Papers, vol. vi. p. 195. It has said that it would not be unreasonable to expect an immunity from belligerent warfare, for the space between the Gulf Stream and the American shore. Mr. Madison's letter to our envoys at London, May 17, 1806. 1 Chitty's Law of Nations, p. 71. 2 5 Rob. 246. See also the case of the Herstelder, 1 Rob. 114. CH. n.] OF THE SEA. 49 Other way. It impresses the direct hostile character upon the original seizure ; it is declared to be no embargo ; it is no longer an equivocal act, subject to two interpretations ; there is a declaration of the animus with which it is done, that it was done hostili animo, and is to be considered as an hostile measure, ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes, for the restitution of such property, taken before a formal declaration of hostilities." Of Ships in Foreign Ports from Necessity. ^ 67. If a ship be driven by stress of weather, into a prohibited port, or into an open port with prohibited articles on board, or into a port strictly blockaded, or into a port of a free country with slaves on board, or be carried in by unlawful force, in neither of these cases is forfeiture incurred, nor any change wrought in the condition of persons or things on board.i These principles of public law are founded upon considerations of very obvious justice. A ship entering a foreign port voluntarily, does so with fall knowledge of all the consequences of that act. She invites those consequences and must abide them. But when she enters such port invo-* luntarily, driven -in by the violence of storms, or carried in by unlawful force, she is within the foreign jurisdiction from necessity, against her will, and against her exertions to keep without it. Under such circumstances she is rightfully entitled to exemption from the local jurisdiction so far as it respects the property of the ship, and the condition of persons and things on board. To the extent oi this exemption, the jurisdiction of the sovereign, to whose subjects the ship belongs, is still over her, the same as upon the high seas. I Webster's Diplomatic and Official Papers, p. 85. MAR. 5 50 MARITIME LAW. . [CH. II. Illud quod alias licitum non est necessitas facit licitiim : et necessitas inducit privilegium quo jure privatur. «§, 68. England has heretofore sought to exclude from the benefit of the general doctrine, the cases of vessels having on board slaves. She has contended that when such vessels are found within her ports, no matter if forced in from storm or mutiny, the slaves became free. Our government has very properly refused to sanction an exception to the general principle, of a character so anomalous. In a letter addressed by Mr. Webster, the American Secretary of State, to Lord Ashburton, the British plenipotentiary, on the 1st of August, 1842, it was declared that vessels of the United States, driven by necessity into British ports and staying there no longer than such necessity exists, violating no law, nor hav- ing intent to violate any law, will claim and there will be claimed for them, protection and security, freedom from molestation and from all interference with the character or condition of persons or things on board. In the opinion of the government of the United States, such vessels so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage and turned out of their direct course only by disaster, or by wrongful violence, that they ought to receive all assistance necessary ♦ to enable them to resume that direct course, and that inter- ference and molestation by the local authorities, when the whole voyage is lawful, both in act and intent, is ground for just and grave complaint. ^ 1 10 Co. 61. The law of cases of necessity is not likely to be well furnished with precise ruks. Necessity creates the law, it supersedes rules, and whatever is reasonable a.i\d just in such cases, is likewise legal, SirW. Scott, in the case of The Gratitudine, 3 Rob. 272. 2 Diplomatic and Official Papers, p. 90. Case of the " Creole." In the case of McCayo v. New Orleans Ins. Co. 10 Robinson, R. 202, it was declared that a vessel on the high seas, in time of peace, engaged in a lawful voyage, was under the exclusive jurisdiction of the state to which her flag belongs, and that if forced by necessity into a port of a friendly power, she loses none of the rights appertaining to her on the high seas ; but her- CH. n.] OF THE SEA. 61 Of the Jurisdici'ion of Vessels whilst npon the High Seas. «§> 69. In time of peace, the ships of every nation have the right to sail the ocean without interruption. They consti- tute a part of the territory of the sovereign to whom their flag belongs. His jurisdiction over them, whilst upon the high seas, is absolute. The protection of his flag covers all on board. They cannot be interrupted in the peaceful prose- cution of the voyage by the public armed ships of any other state, for any purpose whatsoever. No matter what the pre- text, whether it be to put an end to the African slave trade, or to arrest pirates and other public off"enders — the right of search in time of peace does not exist. Its exercise would be a flagrant violation of the jurisdictional territory of a sovereign power, and as high an off"ence against public law as an armed invasion on land. Of the Right of Search and Visit. "§> 70. There is no practical distinction between the right of visit and the right of search. The one includes the other, and would be valueless without it. Neither, except as a belligerent right, has any basis in public law. There is no safety for merchant vessels, but rigid adherence to the general self and cargo, and the persons on board with their property, and all the rights incident to their personal relations, as established by the laws of the state to which they belong, were placed under the protection which the laws of nations extend to fhe unfortunate under such circumstances. Although the jurisdiction of the nation over the vessel belonging to it be not wholly exclusive, and though for any unlawful acts committed while in such a situa- tion, by the master, crew, or owners, she or they may be responsible to the ■laws of the place, yet the local laws do not supersede the laws of the coun- try to which the vessel belongs, so far as relates to the rights, duties, and obligations of those on board ; and that, whatever might be the state of the foreign law in relation to slavery, it did not operate on board the vessel so forced by necessity into tiie foreign port, and before a voluntary landing of the slaves on board, to dissolve the relation of master and slave. 52 MARITIME LAW. [CH. II. principle, that they have full right to pursue their lawful business, to keep on their destined course, without interrup- tion. Every ship enjoying this right for itself, must take care and not invade the rights of others. She must conform to the old maxim, Sic utere tuo tit alieniim non Icedas.^ She cannot draw around her a line of jurisdiction, within which no other vessel is at liberty to intrude. So much of the ocean as she occupies, and as is essential to her own move- ments, she has the unquestionable right to use. Beyond this, no exclusive right has ever been recognized. Other ships may approach her, or follow in her wake.^ 4> 71. Public ships, sailing under the authority of their government, to arrest pirates and other public offenders, may approach any vessels descried at sea, for the purpose of ascer- taining their real character. Such a right of approach is indispensable for the fair and discreet exercise of their au- thority, and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is under such circumstances bound to lie by or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise, or hostile attack. Her right to the free use of the ocean is as perfect as that of any other ship. An entire equality is presumed to exist. These general principles of public law were declared by the Supreme Court of the United States in the case of the Marianna Flora,^ and have received the sanction of our government.* ^ <§. 72. No nation, as we have already observed, under the 1 9 Co. 59. 2 Wheaton's Int. Law, pp. 160-162; The Marianna Flora; Wheaton'a Rep. ii. p. 39. Mr. Webster's Letter to Mr. Everett, March 28, 1843 ; Diplomatic and Official Papers, p. 160. 3 Wheaton's Rep. vol. ii, p. 39. 4 Webster's Dip. and Off. Papers, p. 160. en. II.] OF THE SEA. 53 law as now generally understood and practised, can exercise a right of visitation and search upon the common and unap- propriated parts of the sea, save only on the belligerent claim. If it be asked, why the right of search does not exist in time of peace as well as in war, the answer is, that it has not the same foundation on which alone it is tolerated in war, the necessities of self-defence. They introduced it in war, and practice has established it. No such necessities have intro- duced it in time of peace, and no such practice has esta- blished it.i <§. 73. Notwithstanding the recorded judgments of her own tribunals, Great Britain nevertheless asserts, or has asserted, a right of visit in time of peace. That is, a right, as de- fined by herself, to satisfy the party who has a legitimate interest in knowing the truth, that a vessel actually is what her colors announce. The assertion of this claim, arose out of a very earnest desire to suppress the African slave trade. It is universally admitted, that under the international code, the slave trade constitutes neither piracy nor crime. Personal slavery, said Lord Stowell, in the case of the Le Louis,^ arising out of forcible captivity, is coeval with the earliest periods of the history of mankind. It is found existing, and ' as far as appears, without animadversion, in the earliest and most authentic records of the human race. It is recognized by the codes of the most polished nations of antiquity. Under the light of Christianity itself, the possession of persons so acquired has been in every civilized country invested with the character of property, and secured as such by all the pro- tections of law. Solemn treaties have been framed and national monopolies eagerly sought to facilitate and extend the commerce in this asserted property, and all this with all the sanctions of law, public and municipal. It is not, there- fore, a criminal traffic by the consuetudinary law of nations, and every nation, independently of special compact, retains 1 Le Louis, 2 Dod. 250 ; Lord Stowell. ^ Ibid. 5* 54 MARITIME LAW. [CH. II. a legal right to carry it on.^ Hence, England disclaims all pretension to interfere with slavers when she ascertains that they do not belong to those powers which are bound by compact to abstain from the traffic. But she maintains the right to visit any vessel, of any nation, engaged in any traffic, however lawful, if she has, or rather if she supposes she has, (for to that it comes at last,) reasonable grounds for suspect- ing that the flag which a vessel carries, is not the one she is entitled to use. Our government does not admit that there is any distinction between the right of visit and the right of search, and adheres to the well defined and long established doctrine, that in time of peace, the right of visitation or search on the high seas does not exist. ^ 1 See the case of La Jeune Eugenie, 10 Wheat. 120. 2 Mr. Webster, the American Secretary of State, in his despatches to Mr. Everett, our Minister at London, of the date of March 28, 1843, stated the position of our government upon this subject in the following language : — " It appears to the government of the United States, that the view of this whole subject, which is the most naturally taken, is also the most legal, and most in analogy with other cases. British cruisers have a right to detain British merchantmen for certain purposes, and they have a right, acquired by treaty, to detain merchant vessels of several other nations for the same purposes. But they have no right at all to detain an American merchant vessel. This Lord Aberdeen admits in the fullest manner. Any detention of an American vessel by a British cruiser is therefore a wrong, a trespass, although it may be done under the belief that she was a British vessel or that she belonged to a nation which had conceded the right of such detention to the British cruisers, and the trespass therefore an involuntary trespass. The government of the United States has frequently made known its opinion, which it now repeats, that the practice of detaining American vessels, though subject to just compensation, if such detention afterward turn out to have been without good cause, however guarded by instructions, or however cautiously exercised, necessarily leads to serious inconvenience and injury On the whole, the government of the United States, while it has not conceded a mutual right of visit or search, as has been done by the parties to the quintuple treaty of December, 1841, does not admit that, by the law and practice of nations, there is any such thing as a ri"ht of visit, distinguished by well known rules and definitions, from the right of search. It does not admit that visit of American merchant vessels by British cruisers is founded on any right, notwithstanding the cruiser may suppose such vessel to be British, Brazilian, or Portuguese. We cannot CH. II.] <^^ 'fS^ ^^^' ^^ Of the Interdiction of Commerce. ^ 74. As an incident of the sovereignty of a nation, it may permit or prohibit commerce, establish commercial alliances, or have none at all. It may absolutely refuse all mtercourse with foreign states, a principle acted upon by Egypt m ancient, and China and Japan i in modern times.^ Smce, then, says Vattel. a nation cannot have a natural right to sell its merchandises to another that is unwilling to purchase them, if it has only an imperfect right to buy what it wants of others, if it belongs only to these last to judge whether it be proper for them to sell or not, and, in short, if commerce consist in mutually buying and selling all sorts of com- modities, it is evident that it depends on the will of any nation to carry on a commerce with each other, or to let it alone. If it is willing to allow this to one, it depends on the nation to permit it, under such conditions as it shall think proper. For in permitting another nation to trade with it, it grants that other a right, and every one is at liberty to affix what conditions he pleases to a right he freely grants.^ <^ 75. When a state has announced its purpose to suspend all intercourse with foreigners, other states have no right to but see, that the detention and examination of American vessels by British cruisers has already led to consequences, -and fear that, if continued it would still lead to further consequences, -highly injurious to the lawful commerce of the United States." 1 Under no circumstances is a stranger perraiUed to land in any part ol Japan. To anchor in any port of the empire except Nagasaki, where the Dutch have a fort, exposes a foreign vessel to destruction. So cautiously and strictly does the Japanese government enforce its peculiar policy, that natives of the country, shipwrecked abroad, are not permitted to return home, save in a Dutch or Chinese vessel. A decree to that effect was trans- mitted to the European powers in the year 1843. 2Pufr.b. iv. c. 5, ^10; Vatlel,b. i.e. 8,^92-97; Marten's Summary of the Law of Nations, 146- 148 ; Chitty's Com. Law, 70-81. 3B. i. c. 8, ^92. 66 MARITIME LAW. [CH. II. interfere with such policy. We are aware that the doctrine has latterly been avowed, and in quarters entitled to respect, that the absolute prohibition by a state of commerce with all the world, is not an act that can find any sanction in the law of nature or the rights of sovereignty. It is said that a nation, besides the duties it owes to itself, owes duties neither few nor contracted, to all other nations. That among them is the duty of adding to the stock of general comfort and enjoyment, by permitting a free interchange of productions with all the world. This doctrine is as dangerous as spe- cious. It strikes a blow at the very foundations of national independence. It denies to a nation the right to judge (or rather it pronounces in advance that foreign powers are not bound to respect its judgment, if supposed to be adverse to their interests) whether a municipal measure is beneficial or injurious to itself, and to adopt or reject it at its pleasure. A state is organized for the conservation of its own interests ; yet according to this doctrine, if other nations believe that its particular policy does not yield them the same comfort and enjoyment that a contrary policy would yield, they have the right to forcibly interpose and change that policy. Un- questionably, if, by withholding its productions in whole or part from the channels of trade, great calamities should fall on other nations, famine should threaten or ensue, the law of self-preservation, to which ordinary rules and maxims must yield, would justify even compulsory interference. But upon any other pretence, upon any loose notion of increas- ing the sum of human happiness, to force commerce upon any people, is a violation of the sacred rights of nations, incapa- ble of defence or justification. <5> 76. In December, 1807, our government, by the embargo act of that date, interdicted commerce with the whole world. A large and distinguished party in the country denied to Congress the power to enact a law of that character. They contended that the constitutional grant to regulate commerce, did not by any rational implication, empower Congress to destroy it, or put a stop to it altogether. But the judicial en. II.] OF THE SEA. 57 department of the government determined otherwise. ^ The power was exercised, and its exercise sanctioned. Other nations, particularly Great Britain, against whom the legisla- tion of Congress was specially directed, did not question the right of the United States, under the international code, to suspend as they did suspend, without " distinction as to nation or limit as to time," their commercial intercourse with the whole world. It will be seen, from the correspondence of our Minister, Mr. Pinkney, with Mr. Canning, who was then Secretary of State for Foreign Affairs, that England disclaimed all pretension to intermeddle with the municipal regulations of a foreign state, and declared that she had no right to make any complaint.^ The embargo act was a temporary policy, designed to accomplish a particular object. But the principle on which it was founded is a universal one, applicable to the permanent policy of Japan, and not at all affected by the extent of its exercise. 1 The United States v. The Brigantine William ; 2 Hall's Law Journal, 255. 2 Mr. Canning's leUer to Mr. Pinkney, Sept. 23, 1808. 58 MAKITIME LAW. [CH. III. CHAPTER III. OF THE TITLE TO MERCHANT SHIPS. <§> 77. When we consider the innumerable benefits that flow from the mutual intercourse of mankind, the diffusion among barbarous nations of Christianity and civilization, and how vastly increased are the comfort and happiness of every region of the globe, by the interchange of the diversified productions peculiar to each, it will be readily admitted that the agent by which these beneficent results are accomplished, rises superior in importance to every other work which human skill or power, in any age or era of the world, has ever produced. <§. 78. The ship unites the dissevered land, is the grand mean of commerce, of exploration and settlement ; it " invi- gorates the springs of national industry," and is alike poten- tial in peace and war. Hence, the encouragement of navi- gation has been the established policy of commercial states, in all ages of the world. <§> 79. In the following chapter, it is proposed to state, with all practicable brevity, the principles of law that relate to the property of ships. There will be no occasion, in this connection, to examine the various acts of Congress, known as the Registry acts. Those acts have not, in any degree, changed the common law, as to the manner of transferring this species of property. To entitle ships to be registered, and to be deemed ships of the United States, with the privi- leges and exemptions of such ships, it is necessary that the transfer should be made according to the forms prescribed in the registry acts. But the acts do not declare any other transfer void and illegal, but simply deny to ships transferred en. III.] OF THE TITLE TO MERCHANT SHIPS. 59 in any other manner, the privileges of ships of the United States, and deem them alien or foreign ships. In this respect, our acts differ from the English registry acts, which declare that all transfers, or agreements of transfers, which do not comply with the forms therein prescribed, shall be utterly void to all intents and purposes whatsoever.^ § 80. It will be our endeavor, therefore, to point out the modes of acquiring a valid title to ships, without any reference to the privileges secured to them, upon the observance of particular forms of transfer, by special legislation. ^ 81. The property of a ship may be acquired by building it, by inheritance, by deed of gift, by purchase, and by cap- ture followed with condemnation by a competent tribunal.^ The first three modes of acquisition will require no discus- sion. The principles of law that apply to the acquisition of other species of property from the same sources, are equally applicable to this, and are familiar to all. The two last modes of acquisition, it will be our object to consider, and under the following divisions. 1. By purchase from the owner. 2. By purchase from the master. 3. By capture and condemnation. <5) 82. It should be observed as to the latter branch of our subject, that although the title to a ship is changed by a legal condemnation, yet it is the common practice to ascer- tain the value of a prize by a public sale. If the capture and condemnation are authorized by, and are in accordance with, the law of nations, the title of the original owner is devested, and a subsequent purchaser acquires a valid property in the vessel, which the courts of all countries are bound to respect. In treating of this interesting and important branch of mari- 1 Weston V. Penniman, 1 Mason, 306. 2 Jacobsen's Sea Laws, p. 27. 60 MARITIME LAW. [CH. III. time jurisprudence, it will not be expected, in a work of this character, that we should do more than to state briefly the general principles by which the lawfulness or unlawfulness of a capture is adjudged. 1. Title by Purchase fro7n the Owner. <§> 83. The owner of property of any description, either by himself or his agent, may sell it whenever and to whom- soever he pleases, unless the law restrains his selling. The requisites of a valid sale of movable property generally are essential in the sale of a ship. There must be parties com- petent to contract, quid pro quo, and mutual consent. The consent of the buyer, however, must not be obtained by the wilful misrepresentation of the seller, and vice versa. If it is, the sale is not binding, and may be rescinded. »§> 84. Moralists contend that a vendor is bound in faro conscienticB to disclose to the vendee the faults or defects of the thing sold.i But the rule of law is opposed to the rule of morals as laid down by those writers. Defects, equally open to both parties, and which might be discovered by vigilance and care, need not be disclosed.^ The law comes to the relief of the provident, not to the improvident pur- chaser. Vigilantibus, nan dormientihus jura suhveniiint. The maxim is, caveat emptor, and where there is no false representation or means used to conceal defects or mislead the vendee, the sale is a valid one, and cannot be disturbed. Even a warranty is not binding when the fault is obvious ; 1 Grotius, De Jure, B. et pp. 1, 2, c. 12, s. 9 ; Paley's Moral Philosophy, chap. vii. The Roman Law required the vendor to declare all the faults known to him, and even held him responsible for those of which he was igno- rant. But the general doctrine was qualiGed by holding, that if the defects' of the thing sold were evident, or the buyer might have known them by proper precaution, he could not obtain any relief against the vendor. The rule of the civil law also was simplex commendatio non obligat. 2 Story's Commentaries on Equity, vol. i. sects. 149-212. '"•no CH. III.] OF THE TITLE TO MERCHAXT SHIPS. 61 as in the case of a horse warranted to be sound, with a visi- ble defect ; or of a house, without a roof or windows, war- ranted as in perfect repair.^ 1 Dyer v. Hargrave, 10 Yesey's R. 507 ; Schuyler v. Russ, 2 Gaines's R. 0-2. Upon the question whether the intelligence of extrinsic circumstances which may influence the price of a commodity, and which is exclusively within the knowledge of the vendee, ought to be disclosed by him to the vendor, we have the judgment of the Supreme Court of the United States, in the celebrated case of Laidlaw v. Organ, 2 Wheat. R. 178. It was there held that a vendee, under such circumstances, is not bound to communicate the intelligence he possesses. It would be difficult, it was said, to circum- scribe the contrary doctrine within proper limits, when the means of intelli- gence are equally accessible to both parties. But at the same time each party must take care not to say or do any thing tending to impose on the other. The theory of the civil law, it seems, is different. In interested con- tracts, says Pothier, among which is the contract of sale, good faith not only forbids the assertion of falsehood, but also all reservation concerning that which the person with whom we contract has an interest in knowing, touch- ing the thing which is the object of the contract. The reason is that equity and justice in these contracts consists in equality. It is evident that any re- servation by one of the contracting parties, concerning any circumstance which the other has an interest in knowing, touching the object of the contract, is fatal to this equality ; for the moment the one acquires a knowledge of this object superior to the other, he has an advantage over the other in contract- ing ; he knows belter what he is doing than the other, and, consequently, equality is no longer found in the contract. In applying these principles to the contract of sale, it follows that the vendor is obliged to disclose every circumstance within his knowledge touching the thing which the vendee has an interest in knowing, and that he sins against that good faith which ought to reign in this contract, if he conceals any such circumstance from him. Vide the 2d vol. of Wheaton's R. 185 ; where is inserted in a note, by the learned reporter, a translation of that part of Pothier's work, De Vente, which relates to the question decided in Laidlaw v. Organ. See also the case of Frazieru. Gervais, 1 Walker's Miss. Rep. 72, where the decision proceeded upon a principle directly opposed to that laid down in Laidlaw v. Organ. It should be observed that Pothier, after stating the principles established by the Roman jurisconsults, concludes with the remark that this question, (namely, as to the obligation of the vendor, to disclose to the vendee his knowledge of extrinsic circumstances, touching the thing sold,) only concerns tne forum of conscience ; for there can be no doubt that in the civil forum, the demand of a vendee cannot be listened to, who complains that the vendor has not disclosed to him all the extrinsic circumstances relative to the thing sold, whatever interest the vendee might have in knowing ihem. Vide Matthews V. Bliss, 22 Pick. 48. MAR. 6 62 MARITIME LAW. [CH. III. <§> 85. If there is a latent defect in the subject of the sale, known to the vendor, but which the vendee could not by any attention possibly discover, the seller is bound to disclose it.i It is only when there is or may be equality of know- ledge that he is free from this obligation. Scientia enim utrin- que par pares facit contrahentes. The Sale of a Ship with all Faults. ^ 86. In the case of Mellesh v. Motteaux,^ the first count of the declaration stated, that in consideration the plaintiff Avould buy of the defendants a brig, together with all the rigging, &c. belonging thereto ; the defendants undertook and promised the plaintiff that the brig was free from all latent and concealed defects. The count then stated that she was not free from latent and concealed defects, and that the defendants at the time of the promise well knew the same. § 87. It was proved that the plaintiff bought the brig ^^iDith all faults" and not a word was said at the time as to her condition ; but that on examination and taking out the ballast, it w^as discovered that twenty-two of her futtocks were broken, and that had she gone to sea in that condition, her destruction would have been the inevitable consequence. That this was a late7it defect, which it was impossible for any person to have discovered, in the state the ship was at the time of the purchase, and that the defetidants knew of it. ^ 88. It was insisted for the seller, that this was a case where the rule caveat emptor applied ; that the plaintiflf bought the brig for better, for worse, and must be held to his bargain. But Lord Kenyon said, that there are certain moral duties, which philosophers have called duties of impei;? 1 Mellesh v. Motteaus, Peak's Cases, 115 ; 2 Kent's Coram. 482, 6th ed. ; 1 Sugden on Vendors, 389, 6th Am. ed. Springfield. 2 Peak's Cases, 115. CH. III.J OF THE TITLE TO MERCHANT SHIPS. 63 feet obligation, such as benevolence to the poor, and many- others, which courts of law do not enforce. But in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith. This was a latent defect, which the plaintitf could not, by any attention whatever, possibly discover, and which the defendants knowing of, ought to have disclosed to the plain- tiff. The terms to which the plaintiff acceded, of taking the ship with all faults and without warranty, must be understood to relate only to those faults which the plaintiff could have discovered, or which the seller was unacquainted with. <§) 89. In the subsequent case of Baglehole v. Walters ^ the same point arose before Lord Ellenborough. The plaintiff relied upon the decision in Mehesh v. Motteaux. But Lord Ellenborough said that he could not subscribe to the doctrine of that case, although he felt the greatest respect for the authority of the judge by whom it was decided. When an article is sold ^^witli all faults,''^ he thought it was quite immaterial how many belonged to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. The very object of introducing such a stipulation is, to put the purchaser on his guard, and to throw upon him the burden of examining all faults, both secret and apparent. A man may be possessed of a horse he knows to have many faults, and wish to get rid of him for whatever sum he would fetch. He desires his servant to dispose of him, and instead of giv- ing a warranty of soundness, to sell him with all faults. Having thus laboriously freed himself from responsibility, is he to be liable if it be afterwards discovered that the horse was unsound ? Why did not the purchaser examine him in the market when exposed for sale ? By acceding to buy the horse with all faults he takes upon himself the risk of latent 1 3 Camp. N. P. Rep. 151. 64 MARITIME LAW. [CH. III. or secret faults, and calculates accordingly the price which he gives. It would be most inconvenient and unjust if men could not, by using the strongest terms which the language affords, obviate disputes concerning the quality of the goods which they sell. In a contract such as this, he thought there was no fraud, unless the seller, by positive means, renders it impossible for the purchaser to detect latent faults, and he made no doubt that this would be held as law when the question should come to be deliberately discussed in any court of justice. The Sale of a Ship loith all Faults, and Fraud appears in the concealment of Defects. % 90. The case of Schneider v. Heath ^ was an action for money had and received, to recover back the deposit paid upon the purchase of a ship, on the ground of misrepresent- ation and fraud on the part of the vendor. The particular stated amongst other things, that the hull was nearly as good as when launched. And after stating where she was to be seen, added, "with all faults as they now lie." Then fol- lowed an inventory of the stores, to which the following declaration was added : " The vessel and her stores to be taken with all faults as they now lie, without any allowance for weight, length, quality, or any defect ivhafsoever." The ■v^endee having taken possession of the ship, sent her to a shipwright's to be examined. Here it was found that her bottom was worm-eaten, her keel broken, that she was quite unseaworthy, and that she did not by any means correspond with the description in the particular. He thereupon refused to complete the purchase, and demanded back his deposit. It appeared in evidence, that the ship belonged to a club of underwriters, to whom she had been abandoned, and on whose account she was sold ; that the state of her bottom and her keel must have been known to the agents employed 1 3 Camp. N. P. Rep. 506. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 65 to conduct the sale, and that the captain, when the ship was advertised for sale, took her from the ways on which she lay, and where the state of her bottom and her keel might easily have been discovered, and kept her constantly afloat, so that these defects were completely concealed by the water. The person who had framed the particular, stated, that he had inserted the description of the vessel without having examined her. It was contended for the defendant that the action could not be maintained, as the ship and her stores, according to the particular, were to he takenwith all faults. These words put the purchaser on his guard, and threw upon him the risk of all faults, latent and apparent, known and unknown. It was the duty of the plaintiff to have examined the ship's bottom and the state of her keel before the sale. The vend- ors had introduced words to obviate all subsequent disputes, and the plaintiff could not now come and complain of his own negligence. Mansfield, C. J. The words are very large to exclude the buyer from calling upon the seller for any defect in the thing sold ; but if the .seller was guilty of any positive fraud in the sale, these words will not protect him. There might be such fraud, either in a false representation, or in using means to conceal some defect. I think the particular is evidence here by way of representation. That states the hull to be nearly as good as when launched, and that the vessel required a most trifling outfit. Now, is this true or false ? If false, it is a fraud which vitiates the contract. What was the fact ? The hull was worm-eaten, the keel was broken, and the ship could not be rendered seaworthy without a most expensive outfit. The agent tells us he framed this particular without knowing any thing of the matter. But it signifies nothing, whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false. IJut besides this, it appears here that means were taken fraudulently to conceal the defect in the ship's bottom. These must have been QQ MARITIME LAW. [CH. III. known to the captain, who is to be considered the agent of the owners ; and he, evidently to prevent their being dis- covered by persons disposed to bid for her, removed her from the ways where she lay dry, and kept her afloat in the dock, till the sale was over. Therefore, consistently with the decided cases upon this subject, I am of opinion that the plaintiff is entitled to recover back his deposit. <§, 91. It will be perceived, that the ground on v/hich Mansfield, C. J. proceeded in this case was twofold; namely, that there was fraud in the representation made, and in the action which followed. The representation was false in fact, but believed to be true, or rather was not known to be false. The fraudulent act, was, the employment of means to prevent the purchaser from discovering the faults of the ship. Upon the latter ground, there can be no doubt that the plaintiff was entitled to recover. But upon the former, the question is open to controversy. The broad proposition that a repre- sentation not known at the time to be true or false, but which turns out to be false, is equally fraudulent in law, as wilful falsehood, is not so readily admitted^ An action on the case for deceit, coul4- not be maintained upon such a representation. Because the ground of deceit is disposed of, when the falsity of the representation is found by the jury, to have been unknown to the defendant. Thus, in the case of Dyer v. Lewis,i where it appeared that the defendant sold a schooner, and in the bill of sale described her as of certain dimensions and burden, when in truth she was of less dimensions and burden, it was held by the Supreme Court of Massachusetts, that the purchaser could not maintain an action of the case against the seller, as for a false afiirmation and promise, and upon the ground that there was no evi- dence that the defendant knew of the difference in the ad- measurement, or that his affirmation to the plaintiff respect- ing the same, was untrue. Whether a representation of the 1 7 Mass. 284. en. III.] OF THE TITLE TO MERCHANT SHIPS. 67 character we are considering, would, in any case, amount to a warranty, is a grave question, " where great names militate against each other, where reason is perplexed, and an appeal to authorities only thickens the confusion. For high and reverend authorities lift up their heads on both sides, and there is no sure footing in the middle." Waiving the point for the present, I shall endeavor, in another part of this chap- ter, to state the common-law doctrine upon this subject, and without offending the reader by any lengthy citation of the decisions which have innovated upon its ancient strict- ness.i The Sale of a Ship, and Fraud appears in tJie misrepresent- ation of a material Fact. •§> 92. The decision in the following case, it will be ob- served, did not turn upon the concealment of defects, but 1 Vide infra. In Freeman v. Baker, 5 Barn, and Adol. 797, one count was in case for de^it in an alleged false reprcsentalion in a bargain for the sale of a ship — the defendant having represented to the plaintiff that the ship was a copper-fastened ship. The jury found specially, that the vessel was not copper-fastened, but ihey found further that there was no evi- dence that the defendant knew the representation to be false, and that there was no concealment on his part. Parke, J., in the opinion given by him, says, " the question of deceit was disposed of by the jury, when they found that the defect in the ship was unknown to the defendant." He adds, " Pollhillu. Walter, 3 Barn, and Adol. 114, only decides that if a person states what he knows to be untrue, and induces another to act upon it, to his preju- dice, a fraud in law is committed. That case was decided on the authority of Foster v. Charles, 6 Bing. 390, and in both cases, the party making the representation knew it to be false." The great and leading principle of law, applicable to cases of deceit, is, that to charge a party in damages for a false represenlation, it must appear that it was made with a fraudulent intent, or was a wilful falsehood. But when the party makes a bare representation, it is necessary to aver and prove, that he knew the representation to be false. For a representation false in fact, but believed to be true, carries with it no responsibility, and docs not afford a ground of action. But it seems that an unqualified representation by a vendor, as of his own hnowledgc, which he does not know to be either true or false, but which turns out to be false, has all the elements and draws with it all the consequences of a fraudulent reprc- 68 MARITIME LAW. [CH. III. upon the misrepresentation of a material fact. The ship Beaufort was registered and advertised for sale as built in IS 16. The purchaser bought her upon the terms stated in the registry and inventory. The latter contained this clause : " the ship and stores to be taken with all faults as they now are." It appeared that the value of the ship depended on her age, and that she was not built in 1816, but in 1815, when she was completed and launched. An action on the case was brought, to recover damages for the deceit. The third count in the declaration, (the other counts were for mis- representation of the quality of the materials of the ship,) alleged the deceit to consist in the misrepresentation that the ship had been built in 1816, whereas, in truth and in fact, the said ship had not been built in that year, but in 1815. It was contended for the defendant, in answer to this case, that the variation as to the time of building the ship was not material, particularly since the plaintiffs had pur- chased the ship as she was with all defects. Abbott, Lord C. J., was of opinion that on the evidence, the plaintiff was entitled to a verdict independently of any consideration as to the quality of the materials. The contract represented the vessel to have been built in 1816, but she haa, in fact, been launched in the year before. She had therefore been pur- chased by the plaintiffs, who depended upon a false repre- sentation thus held out to them. One of the witnesses had said that if he had known that the ship had been built in the year 1815 he should have put a different valuation upon her. A person ought either to be silent or to speak the truth, and in case he spoke at all was bound to disclose the real fact.i sentation. Hazard v. Irwin, 18 Pick. 95 ; Stone v. Denney, 4 Met. 151 ; Vide Collins v. Evans, 8 Jurist, 346 ; Neely v. Lock, 8 Car. and P. 527 ; Haycroft v. Creasy, 2 East, 92 ; Moens v. Heyworth, 10 M. and W. 147 ; Ormrod v. Huth, 14 M. and W. 651 ; 1 Smith's Leading Cases, 188. 1 Fletcher v. Bowsher, 2 Stark. 559. S. C. 3 Common Law R. 475. However true it may be in morals, that " a person ought either to be silent or to speak the truth, and in case he speaks at all, is bound to CH. m.] OF THE TITLE TO MERCHANT SHIPS. 69 ■§. 93, la the case of Pickering v. Dowson- it was held, that if a representation be made upon a sale, of the quality of the thing sold, with full opportunity for the purchaser to inspect and examine the truth of the representation, and a contract of sale be afterwards reduced into writing, in which that representation is not embodied, no action for deceit lies against the vendor on the ground that the article sold is not answerable to that description. It will be perceived that the opinion of Gibbs, C. J. proceeded on the ground that it was immaterial what might be the character of the representation. He held, that if a man brought him a horse, and made any repi'esentation whatever of his quality and soundness, and afterwards they agreed in writing for the purchase of the horse, that shortened and corrected the representations, and whatsoever terms were not contained in the contract would not bind the seller. But the learned judge agreed, ihdii fraud would not be done away by the contract. The real fact, however, was, that in Pickering v. Dowson, there was no fraud and no representation. The sellers had bought the ship upon a representation, which they showed to the buyer, not as their representation, but as the one made to them, and which they had no reason to doubt, and they at the same time gave to the buyer the fullest opportunity to examine the ship, of whose condition they knew nothing. • disclose the real fact," this doctrine does not fully express the rule of law. A vendor may not know whether his statement be true or false. Yet if he honestly believes it to be true, although it turns out to be false, it carries with it no responsibility, and does not afford a ground of action. In order to that, fraud must concur with the false statement. Collins v. Evans, 8 Jurist, 31G. His lordship in this case, (Fletcher v. Bowsher,) undoubtedly, in the remark we have quoted, intended merely to say, that a person knowing the real fact, was bound, if he spoke at all, to disclose it. The remark, although a general one, must be considered with reference to the particular case, where the fact was of such a character that llio defendant must necessarily have known it, and hence deluded the plaintiff into the purchase of his ship by a fraudulent representation. 1 4 Taunt. 778. 70 MARITIME LAW. [CH. III. <§> 94. As this is an important case, and put at rest in Westminster Hall, the question as to the meaning of the condition " with all faults," the learned reader will require no apology for my reciting at length the facts upon which the judgment was founded, together with the respective opinions of the learned members of the Court. <§) 95. Pickering v. Dowson was an action of the case for deceit in the sale of a ship. The first count in the declara- tion, set forth that the defendants were possessed of a ship called the Margaret ; and well knowing that she was rotten, ruinous, out of repair, unseaworthy, and in great decay in her timbers, and in a bad state and condition, did, neverthe- less, falsely, fraudulently, and deceitfully warrant her to be copper-fastened, and to have undergone a thorough repair in the month of March then last past, and that she might at that time be sent to sea at a very trifling expense, and that she was then lying in the London dock, where she had just dis- charged a cargo from Rio de Janeiro in excellent condition, and did, by means of that false, fraudulent, and deceitful warranty, induce the plaintiff's to buy of the defendants the said ship, with divers stores thereto belonging, for the price of £4200, and did falsely, fraudulently, and deceitfully sell th^ said ship and stores to the said plaintiff's for that price, whereas in truth, the ship, at the time of the warranty and sale was not copper-fastened, and had not undergone a tho- rough repair in March then last past, and had not discharged a cargo from Rio de Janeiro in excellent condition, but on the contrary thereof, at the time of the sale and making of the warranty, was rotten, and in great decay in her timbers, and out of repair, unseaworthy, and in a bad state and con- dition ; and by reason of such the unsound, decayed, and leaky state and condition of the ship in her voyage from Rio de Janeiro, her cargo had been and was in the course of that voyage greatly wetted, damaged, spoiled, and destroyed, and so, the plaintiff's averred, that the defendants falsely and fraudulently deceived them, the plaintiff's, and they averred CH. III.] OF THE TITLE TO MERCHANT SHIPS. 71 a special damage. There were three other counts of similar character. At the trial, it was proved that the defendants in January, 1809, had purchased the ship Margaret, previous to which sale an inventory had been circulated, containing the follow- ing description of her : " The remarkably fast-sailing ship Margaret, foreign built and free, square stern, figure-head, burden three hundred fifty-four tons register measurement, has two flush decks, copper-fastened and sheathed, was cop- pered and underwent a thorough repair in Messrs. Young, Waliis, and Hawkes's dock in March last, shifts without ballast and stows a large cargo, is completely found in sails, cordage, and other stores, and may be sent to sea at a very trifling expense — has capital heights for the transport ser- vice, and is well adapted for the St. Domingo or South American trade, now lying in the London dock, where she has just discharged a cargo from Rio de Janeiro in excellent condition, &c. — hull, masts, yards, standing and running rigging, icith all faults, as they now lie without any allow- ance for weight, length, quality, or any defect whatever." When the defendants purchased the vessel, a copy of these particulars was delivered to them by the vendors. The defendants were preparing the vessel to go on a voyage to Demarara, had appointed a captain, and posted the vessel at Lloyd's for freight, when the plaintifl's applied to them to sell her. The defendants answered, that they would sell her if the plaintiffs would give a competent price. In the course of the negotiation, the defendants permitted the plaintifl^s to inspect the state of repair of the vessel, which was then lying in a dock to receive repairs for the defendants' intended voyage, and the plaintiff's actually examined her. The de- fendants also permitted them to see the inventory, by which they had themselves bought her, as before mentioned. At length the parties signed an agreement, the material parts of which are as follow: "January 20, 1809. W. D. Dowson, agent for W. T. Wood, sells, and Mr. Pickering for account of Messrs. IJlades of Hull, buys the ship called the Margaret, foreign built, of the measurement of three hundred 72 MARITIME LAW. [CH. III. fifty-four tons, or thereabouts, now lying in the London dock, for the sum of four thousand two hundred pounds. On payment, the ship with what belongs to her shall be delivered according to the inventory which has been exposed, but the said inventory shall be made good as to quantity only. The ship and stores shall be taken with all faults, in the condition they now lie, without any allowance for weights, lengths, qualities, or any defects whatever." On the 17th of February following, the parties executed bills of sale and completed the purchase. It has been sug- gested 1 that the printed bill of sale was probably filled up, or the ordinary general form used. From this circumstance arose the plaintiff's failure in the suit, as will presently appear. The contract contained no representation whatever. A special bill of sale, reciting the inventory, with covenants of the truth of the representations, would have protected the rights of the plaintiffs. The plaintiffs proved that the ship was not copper-fastened, that the defendants knew she was leaky, that the defendants had, after their purchase, offered her to government to be employed in the transport service, and that the agents of government had rejected her. The plaintiffs made no com- plaint until after they had sent the vessel to sea, on a voyage to South America, in the course of which she became leaky, and was obliged to put into Lisbon to refit, after which she proceeded on her voyage, and again proving leaky she returned to Lisbon, was surveyed and condemned as incapa- ble of the voyage, sold by auction and broken up. Gibbs, J. was of opinion that the defendants were not in law liable in this action, and directed a nonsuit. On a motion to set aside the nonsuit it was contended that the whole inventory of the former sale was delivered by the defendants to the plaintiffs as a representation of the state of the ship, which existed at the time of the sale to the plain- tiffs, and that the contract for the purchase being founded on 1 Wilkinson on Shipping, p. 103, CH. III.] OF THE TITLE TO MERCHANT SHIPS. 73 that representation, and the representation having failed, with the knowledge of the defendants that when they made it, it was untrue, the plaintifls were entitled to recover. The stipulations in the contract that the ship and stores should be taken with all faults, without any allowance for weight, length, quality, or any other defect whatsoever, did not enable a seller to make with impunity a representation of facts which he knew to be false, or did not know to be true. In the case of Parkinson v. Lee, 2 East, 323, Lawrence, J. relied on the circumstance that there was no representation made by the defendants to the plaintiffs as to the goodness of the hops, to induce him to make the purchase. Here was a repre- sentation of facts, which were most important and proved false. The ship was not copper-fastened, she had not then lately undergone a thorough repair, nor had she delivered her last cargo as represented, in excellent condition, but to the knowledge of the defendants was leaky, and when she went to sea, she was found rotten. In the case of Mellish v. Mot- teaux. Lord Kenyon says, " with all faults," means with all faults unknown to the plaintiff. And this is the true con- struction. In Baglehole v. Walters, Lord Ellenborough cer- tainly does not agree to that ; but in the last case there was no representation. Lord Ellenborough thought that when an article is sold with all faults, how many of them are known to the seller is immaterial. But where a ship is sold with all faults, and arts are used to put a purchaser off his guard, which is the case here, where representations were made that induced the plaintiffs to believe this was a per- fectly safe ship to be sent to sea, the same doctrine docs not hold. Heath, J. If I could harbor any doubt on the question, I would grant a rule nisi. The defendant had recently pur- chased a ship, and intended to send her to the West Indies. The plaintiff applies to him to sell the ship, the defendant states to him, " Here is what I bought it for from the former vendor ; " he sells it to him by a contract containing no repre- sentation whatsoever. It is in vain to reduce a contract to writing, if you may afterwards refer to all that has passed MAR. 7 T4 MARITIME LAW. [CH. III. by parol. The meaning of selling " with all faults " is, that the purchaser shall make use of his eyes and understanding to discover what faults there are. I admit the vendor is not to make use of any fraud or practice to conceal faults ; I think the representation is none ; it is the mere delivering over of a paper which the defendants received from the former vendor. With respect to the doctrine, I adhere to that of Lord Ellenborough in Baglehole v. Walters, without any difficulty. I subscribe to the doctrine of the Digest, but this is not an obscure or insidious contract, but plain and simple. Chambre, J. I am of the same opinion. When there is a written agreement, and no difficulty as to the meaning, it is dangerous to depart from it without evidence of fraud. Where there is such, the courts of law will interfere ; here I see none. That the defendants did not know the faults is manifest from the use they meant to make of the vessel. They deliver over all the papers. The party, after an inspection, agrees to purchase it with all its faults. There is no evidence of any fraud at all, and under such circum- stances, after examination had, and a contract made in writing, which is made to bind the parties, it cannot be per- mitted that because the state of it turns out to be different from what was expected, the whole shall at a future time be rescinded. It would put an end to all contracts. Gibbs, J. Lord Kenyon certainly did, in the case of Mel- lish V. Motteaux, receive some such evidence as that which has now been referred to ; but that case has since been expressly overruled in a subsequent nisi prius case in Camp- bell, and that decision has never been questioned at the bar. The ground on which that case ultimately went, was that the one party covered the defects so that the other could not see them. But the evidence did not support the suggestion ,• and I remember the case of the sale of a house in South Audley Square, where the seller, being conscious of a defect in a main wall, plastered it up and papered it over, and it was held that as the vendor had expressly concealed it, the purchaser might recover ; but in this case the plaintiffs did CH. m.] OF THE TITLE TO MERCHAXT SHIPS. 75 not, in their opening, state any concealment. This is a case regarding property of considerable vaUie, but that is no reason for interfering to put the parties to further expense, unless there is a rational ground of doubt. What are the facts of this case ? The defendants had very recently pur- chased this ship under an inventory delivered to them, at the head of which was a representation from those of whom they purchased. They were about to send this ship to the West Indies, and had actually appointed a captain. The plaintifls apply to them to know if they will sell their ship ; the answer is. Yes, if we get our price. The plaintiffs and several others are permitted to go and examine the ship throughout. After this the old inventory is handed over, in which they see how the former vendors described her, but the defendants do not repeat that as their present representa- tion of her, and the parties have full liberty to examine her. They then come to an understanding, and reduce the contract to writing. By that alone they are afterwards to be bound, unless some fraud can be shown. Even if there had been a representation^ it would not have availed. I hold, that if a man brings me a horse, and makes any repre- sentation whatever of his quality and soundness, and after- wards we agree in writing for the purchase of the horse, that shortens and corrects the representations, and whatever terms are not contained in the contract, do not bind the seller, and must be struck out of the case. In this case, if there had been any fraud, I agree it would not have been done away by the contract ; but in this case, there is no evidence of any fraud at all. The ship is afterwards conveyed by a bill of sale. That contains no warranty. I thought at the trial, and still think, that the parties were not at liberty to show any representation made by the seller, unless they could show that by some fraud the defendants prevented the plaintiffs from discovering a fault which they knew to exist. f think on these grounds, the Court must refuse the motion; but I go further, and think, that as to the evidence of the representation, and as affecting the conduct of the defend- ants, the defendants only handed over the inventory for the 76 MARITIME LAW. [CH. III. sake of the plaintiffs' seeing the several articles which were to be sold with the ship, and not even with a view to show them what had been the representation made to themselves. That, however, was not the ground on which I went at nisi prius, where I proceeded upon the ground that after the written contract was made^ parol evidence could not be admitted of former representations unless there were proof of such fraud as I have described. <§> 96. Mr. Sugden, in his learned and valuable work on Vendors, after expressing his approval of the doctrine settled by the case of Pickering v. Dowson, proceeds to say, that it seems hardly to meet the case before Lord Kenyon, where the seller knew of the defect and did not disclose it, although he also knew that the purchaser could not, by any attention whatever, possibly discover it. In such a case no artifice need be resorted to by the seller, to conceal the defect from the purchaser, and yet the man who sells such a subject with all its faults, without disclosing the concealed one, seems only, in a moral view, on a level with him who, making a similar sale of a subject where a defect might by dili- gence be discovered, resorts to artifice to prevent the pur- chaser from coming to a knowledge of it. The question is not of more or less of turpitude, but whether in either case a fraud has not been committed. The rule is not that the seller may use his skill to conceal, and that the purchaser is to exercise his to discover, the defects. The distinction there- fore is but a thin one, between a man who has plastered over a rent in the main wall and papered it over, and then sells subject to all faults, knowing that the purchaser cannot dis- cover this fatal one which he does not point out, and a man who, knowing that the defect is thus concealed, sells the estate with all its faults without disclosing this, which he knows cannot be discovered. In either case the purchaser is deceived. In the first case, no doubt, the seller by his act hides the defect, but there is no positive fraud in doing so, the fraud is committed, or at least consummated, when the seller by his silence induces the purchaser to buy without CH. ni.] OF THE TITLE TO MERCHANT SHIPS. 77 the means of knowledge. Now in this respect, the sellers in the two cases are upon a par, for each is aware thafr the defect is hid, and each is silent. Can it, in point of honesty, matter that the one covered the defect, and that the other only knew that it had been covered. ^ <§> 97. This reasoning seems conclusive. But it matters little in the practical operation of the rule, whether the doc- trine of Lord Kenyon in Mellish v. Motteaux prevails, or that of Lord Ellenborough in Baglehole v. Walters. For in the former case, the seller knowing his legal obligations, would disclose those defects which the purchaser could by no attention whatever possibly discover, and submit to the con- sequent diminution of the price of the subject of the sale. Whilst in the latter case, the purchaser knowing that there might be defects, impossible to be discovered, and which the seller was not bound to disclose, would act accordingly, and pay less for the subject of his purchase, than it might other- wise, from its appearance, seem to be worth. The Sale of a copper-fastened Vessel. <§> 98. In Shepherd v. Kain,- which was an-action on the case for a breach of a warranty as to the character of a ship, it appeared that the advertisement for the sale of the ship described her as a " copper-fastened vessel," but these words were subjoined : " The vessel with her stores, as she now lies, to be taken with all faults, without allowance for any defects whatsoever." The description and stipulation were written on the same paper and together constituted the con- tract. It was shown at the trial that the ship when sold was only partially copper-fastened, and that she was not what is called in the trade a copper-fastened vessel. It was also shown that the plaintiff, before he bought her, had full 1 1 Sugden on Vendors, 392. Cth Am. cd. Springfield. 2 5 B. and Aid. 240. 7* 78 MARITIME LAW. [CH. III. opportunity to examine her situation. Best, J. thought that the ship, not being a copper-fastened vessel, the plaintiff was entitled to a verdict, and directed the jury accordingly. A motion was made for a new trial. The case of Baglehole v. Walters was relied upon, but the motion was not granted. Per curiam. The meaning of the advertisement must be, that the seller will not be responsible for any faults which a copper-fastened ship may have. Suppose a silver service sold " with all faults," and it turns out to be plated, can there be any doubt that the vendor would be liable ? " With all faults " must mean with all faults which it may have con- sistently with its being the thing described. Here the ship was not a copper-fastened ship at all, and therefore the ver- dict was right. <§. 99. In the case of Borrekins v. Be van ^ Gibson, C. J., referred to Shepherd v. Kain, and condemned the principle it established. But unquestionably it is law both in this coun- try and England. It is an innovation upon the ancient strictness of the common law, but, like the implication of warranty, in a sale by sample, that the part exhibited fairly represents the quality and condition of the whole, it has be- come an established exception to the general rule. The defendant, Kain, was not held liable for any statement in the advertisement of the quality of the subject of the sale. He had protected himself against such liability, by an express condition, that he would be answerable for no defect what- ever. But he was held to have warranted this, that the sub- ject of the sale should be in fact the thing described, that is to say, a copper-fastened vessel. Or in other words, that the seller should deliver to the purchaser the article sold, and not a different article, although resembling it. The Chief Justice vindicates the common-law rule with evident ability, but the principle on which the learned court proceeded in Shepherd v. Kain, that the thing sold must correspond in 1 3 Rawle's Rep. 23. CH. ni.] OF THE TITLE TO MERCHANT SHIPS. 79 kind, now constitutes a clear exception to the general doc- trine.^ *§, 100. The subsequent case of Freeman v. Baker ^ was a special action on the case. The first count stated that the defendants were possessed of the " Leslie Ogilby," which was not copper-fastened as they well knew, and yet the defendants falsely and deceitfully represented that the ship was copper-fastened, and thereby induced the plaintiff to purchase it, and falsely and deceitfully sold it as copper- fastened. The seventh count stated a warranty that she was a copper-fastened ship. The plaintiff's right to recover in this action depended upon the question whether that which he termed the " inventory " was part of the contract or not. The plaintiff claimed that the " inventory " included the advertisement, and that the advertisement was fraudulent. But it was held, that the " inventory " alluded only to the stores of the ship, which by the terms of agreement were only " to be made good as to quantity." It will be perceived that this case difiered from Shepherd v. Kain in this, that the advertisement of sale, although it described the ship as a copper-fastened ship, was not incorporated into the bill of sale and hence was held to form no part of it. The repre- sentation that the ship was copper-fastened was untrue, but the person making the representation was ignorant of its falsity and supposed it to be true. <§. 101. Where the advertisement of a ship is not incorpo- 1 Vide Jennings v. Gralz, 3 Rawle's Rep. 168 ; Moses v. Mead, 1 Denio, 178. 2 Nev. and M. 446 ; S. C. 5 Car. and P. 475. It was stated by one of the witnesses in this case that by a copper-fastened vessel, was meant that the bolls that go through the keel and keelson, stern-box, stern-port and stem, are made of cojjpcr, (probably as usually alloyed.) When these bolts are of iron, the voltaic action of tho copper on tlio iron reduces their size and renders them incapable of holding together the planks. Vido Wilkin- son on Shipping, p. 91. 80 MARITIME LAW. [CH. III. rated into the bill of sale, either actually or by sufficient words of reference, an action cannot be maintained upon it, upon the ground of a parol warranty. But, if the plaintiff's claim is founded on a deceit in the sale, the advertisement may be admitted as a circumstance tending to establish the fraud. In the former case, the contract itself is the evidence of its extent, and what rests in parol is extinguished by it.^ The written contract is conclusive. Parol evidence is inad- missible to vary its terms. But, if one of the parties has been induced to enter into it by the false and fraudulent representation of the other, it is competent to the former to prove this by evidence aliunde. Thus, where a written con- tract set forth the build and dimensions of a vessel, but omitted all mention of the materials of which she was built, her value depending on their quality and kind, the plaintiff, in an action on the case for a false representation, may give in evidence verbal statements and declarations made by the defendant, touching the materials, pending the negotiations for the purchase.^ *§> 102. In the bargain and sale of an existing chattel, by which the property passes, the law does not, in the absence of fraud, imply any warranty of the good quality or condi- tion of the chattel so sold.^ The simple bargain and sale of a ship, therefore, does not imply any contract that she is then seaworthy or in a serviceable condition. But it does imply that the subject of the transfer exists in the character of a ship.^ Hence, where a ship is sold whilst on a fo- reign voyage, and it turns out that on the day of the date of the bill of sale, she was aground, but still retained the form and structure of a ship, although incapable of being benefi- i Mumford v. M'Pherson, 1 Johns. 413. 2 Wright V. Crookes, 2 Scott, N. R. 685. See also Van Ostrand v. Reed, 1 Wend. 424. 3 Parkinson v. Lee, 2 East, 313. 4 Barr v. Gibson, 3 M. and W. 399. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 81 cially employed as such, and although she is never got off nor comes to the use of the vendee, it is nevertheless a valid transfer, and the vendee must bear the loss.^ As to Ticprcse}itatio7is respecting the Quality or Condition of the thing sold. <§. 103. To avoid litigation, arising from representations made by a vendor pending the sale of a ship, as to her con- dition, it becomes the parties to such sale, to have such statements as they understand and intend to be binding, distinctly and clearly expressed in the bill of sale. The common-law doctrine is, that in all cases, unless there be a warranty, or fraud, a vendor is not responsible, although the representation which he makes turns out to be false. ^ There is a distinction between a representation and a warranty, and until the more modern decisions, it was recognized and ob- served by the courts. A v/arranty means, any engagement, no matter in what words expressed, by which the vendor takes upon himself the responsibility as to the nature of the article sold. But although to constitute a warranty, said Gibson, C. J., in the case of M'Farland v. Newman,^ re- quires n(f particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it. In con- nection with other circumstances, it certainly may be taken into consideration ; but the jury must be satisfied from the whole, that the vendor actually, and not constructively , con- sented to be bound for the truth of his representation. Should he have used expressions fairly importing a willing- ness to be thus bound, it would furnish a reason to infer that he intentionally induced the vendee to treat on that basis ; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it ; 1 Barr v. Gibson, 3 M. and W. 399. 2 Seixas v. Wood, 2 Caincs, U. 48; Sweet v. Colgate, 20 Johns. R.201. 3 9 Walts, Rep. 55. 82 MARITIME LAW. [CH. III. for not to have exacted a direct engagement, had he desired to buy on the vendor's judgment, must be accounted an in- stance of folly. Testing the vendor's responsibility by these principles, justice will be done without driving him into the toils of an imaginary contract. *§> 104. The doctrine that a fair price implies a warranty of title, and also that an implied warranty arises, that the article is specifically that as which it is sold, is a wholesome one. It is founded on a principle, just in itself, and neither inconvenient nor injurious in its practical operation. But the tendency of the modern decisions, to follow the civil law, and to hold every representation of a vendor, as to the quality or condition of the chattel, which is the subject of the sale, as constituting of itself evidence for the jury of a warranty, is an innovation upon the common law, of very doubtful expediency. The two sys- tems of law are widely variant upon the whole subject of warranty. The civil law, said Bronson, J., in the case of Moses V. Mead,^ implies a warranty where none in fact was made. The common law leaves men to make their own bargains. If the purchaser wants an undertaking that the goods are sound or merchantable, he asks for it, and then the vendor decides for himself whether he will make such a contract or lef it alone. Under the civil law it is not enough for the seller's protec- tion that he deals honestly, and does not warrant the goods ; but he must make an agreement that no agreement shall be implied against him. <§> 105. We refer to the subject of warranty in this place, only with a view to the question, whether a representation, not known at the time to be true or false, but which turns out to be false, is to be considered in itself as a warranty, or as furnishing per se evidence of a warranty. Until the case of Wood V. Smith,^ the authorities had gone no further than 1 1 Denio's Rep. 378, 386. 2 4 Car. and P. 45. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 83 to hold, that such representation must be submitted to the jury as evidence of a warranty. But in that case all pre- vious distinctions were disregarded, and it was boldly declared "that whatever a person represents /s a warranty." This doctrine is specious and commends itself by its apparent equity. It is said that when a vendor makes a representa- tion which he does not know to be either true or false, but which in fact is false, it may be, and in most cases, is, just as injurious as intentional falsehood, and that hence the law should afford the vendee an equally efficacious remedy. But to this view of the subject Chief Justice Gibson, in the case of M'Farland v. Newman, ^ thus forcibly replies : " The common law doctrine is, that the sale of a chattel is followed by an implied warranty of title, and a right of action ex de- licto, for wilful misrepresentation of the quality, but the max- im caveat emptor disposes of all besides. Thus was the common law originally settled, and the current of decision ran smooth and clear in the channel thus marked out for it, from the days of the Year-Books, till within a few years past, when it suddenly became turbid and agitated, and, as in the case of promises conjured up to elude the statute of limita- tions, it finally ran wild But a positive asser- tion of what he knew not to be either true or false, is as unconscionable, and might be as injurious, as an intentional falsehood ; and what is the vendee's remedy for it where the scienter cannot be proved ? The fallacy of the question is, in assuming that he ought to have any remedy at all. The relation of buyer and seller, unlike that of cestui que trust, attorney and client, or guardian and ward, is not a confiden- tial one ; and if the buyer instead of exacting an explicit warranty, choses to rely on the bare opinion of one who knows no more about the matter than he does himself, he has himself to blame for it. If he will buy on the seller's responsibility, let him evince it by demanding the proper security ; else let him be taken to have bought on his own. ' 9 Watts, Rep. ."iS. 84 MARITIME LAW. • [CH. III. He who is so simple as to contract without a specification of the terms is not a fit subject of judicial guardianship. Re- posing no confidence in each other, and dealing at arms- length, no more should be required of parties to a sale, than to use no falsehood, and to require more of them would put a stop to commerce itself in driving every one out of it by the terror of endless litigation. Yet such would be the ten- dency of the civil law scion which the judges have been laboring to ingraft on the common-law stock." ^ 1 It should be remembered that his Honor is speaking of the sale of a thing accepted by the vendee after opportunity had to inspect and test it, and not of a sale in which he was necessarily compelled by the circumstances to deal on the faith of the vendor's description. Nor yet of a sale on the con- coction of which he was overreached by misrepresentation or trick. For the latter, he doubtless has his remedy ; but not by an action ex contractu, and therefore the vendor's motive can have no legitimate influence on the ques- tion of warranty. According to the common law, as formerly understood and administered, there was no implied warranty that the thing sold was merchantable or fit for the purpose declared. The maxim, caveat emptor, put the purchaser on his guard, and if he did not choose to rely on his own opinion or senses, then he might demand an explicit warranty. But many of the modern cases have gone very far to relax the common-law rule. A disposition, however, now seems to be evinced, in many of the courts, to turn back the current of decision to its ori- ginal fountain. But it is to be feared that the attempt will meet with indiffer- ent success. When " the waters are once out" it is a difficult task to restore and confine them within their native bed. Two cases, which we may be par- doned for citing somewhat at length, will show in what respects the common law rule has been trenched upon, and how far the tendency of the courts both in England and in this country has been to depart from its salutary strictness. The case of Gray v. Cox, 6 Dow, and Ryland, 200, was an ac- tion of assumpsit. The proof was, that the plaintiffs had ordered of the defendants a certain quantity of copper sheathing, or copper plates, and paid a fair market price. The plates were affixed to the vessel by a shipwright, the plaintiffs themselves not having seen the copper, and the shipwright who was employed for the purpose, did not discover it to be in any respect de- fective. Indeed it was agreed at the trial, that it was not possible to dis- cover from the appearance of the copper itself, that it was in any respect de- fective. The defendants were copper merchants, and not manufacturers. It appeared further in evidence, that upon the ship's return from her first voyage, after the copper was put on, a very considerable number of the plates were found to be corroded from the effects of the salt water, and were so full of holes as to render it absolutely necessary to take them off and to replace them by other plates, whereby, certainly, a considerable expense was in- CH. III.] OF THE TITLE TO MERCHANT SHIPS. 85 "§> 106. We cannot but think that the doctrine so clearly stated and so ably defended in M'Farland v. Newman is curred. At the tri:il Lord Chief Justice Abbott directed the jury, that if a person sold a commodity for a specific purpose, and with knowledge at the time of the sale that it was to be applied to that purpose, he must be under- stood, in point of law, to warrant that the commodity so sold should be rea- sonably fit and proper for the service for which it was sold, and under his direction the jury found their verdict for the plaintiffs. A rule nisi was ob- tained for a new trial on the ground of misdirection. Cause was shown against the rule in the term following ; but the court, on account of the general importance of the question, directed that the case should be reargued at a subsequent term. .Judgment was delivered by Abbott, C. J. He said he was personally still strongly inclined to adhere to the opinion expressed at the trial, although his learned brothers were equally inclined to think that the opinion so expressed, was not warranted by law. The point, however, was not necessary to be decided ; for assuming that a person who sells a commodity for a specific purpose shall be understood by law, to undertake that it is reasonably fit and proper for that purpose, yet the plaintiffs have not declared upon a warranty of that nature, but upon a general and unquali- fied promise ; namely, that the goods should be good, sound, substantial, and serviceable. The court were unanimously of opinion that a warranty, or promise to that extent, and in those general and unqualified terms, does not arise, nor can be implied by law out of the circumstances of a sale like this, of a commodity with respect to which the defects were altogether unknown to the sellers themselves. For these reasons the court were of opinion that his Lordship's direction at iN75i Prius was incorrect, and a new trial was granted. In the case of Jones v. Bright, 5 Bing. 533, the plaintiff, a ship-owner, sued the defendant, a manufacturer of copper, on an implied warranty, on a sale of copper for sheathing the plaintiff's vessel, that the copper was reason- ably fit and proper for the purpose for which it was sold. It appeared by the evidence, that, in consequence of some improper treatment in the manu- facture, by which the copper had imbibed too great a portion of oxygen, its decay was materially accelerated, it being thereby less capable of resisting the action of the salt water. Best, C. J., left it to the jury to say whether the decay of the sheathing were produced by intrinsic or extrinsic causes. The jury found that its decay arose from some intrinsic defect in the quality. The court, after argument in banc, held the defendant liable, and said that a person who sells goods, manufactured by himself, knowing the purpose for which they are to be used by the purchaser, implicdhj warrants that tiiey are reasonably fit and proper fur that purpose, is answerable for latent defects, inasmuch as, being the maker, he has the means of ascertaining and of guard- ing against these defects, whereas the purcliaser must necessarily be alto- MAR. 8 86 MARITIME LAW. [CH. III. founded on the correct principle. And that the departures from it in the modern decisions, although recommended by an apparent equity, have increased the hardship they sought to obviate, and while affording relief perhaps in particular cases, their tendency has been to open a fountain of vexa- tious litigation. Of the Represe7itations of an Agent. <§) 107. Ships are frequently sold through the medium of an agent. In these instances it may be superfluous to observe, the agent is bound and coerced by the same princi- ples of law that are applicable to any case of pure agency. Being employed by the owner of the property, specially, in one single transaction, namely, to sell the ship, if he exceeds his special and limited authority, the principal is not bound by his acts. For it is the duty of the party dealing with such an agent, that is to say, a special agent, employed for a special purpose, to ascertain the extent of his authority, and if he do not, he must abide the consequences, unless indeed, the agent has been held out as possessing a more enlarged authority .^ <§> 108. If an agent, in negotiating a sale, although the gether ignorant of them. Park, J., in delivering his opinion said : " I enter- tain no opinion adverse to the character of the defendants, because the mis- chief may have happened by the oversight of those whom they employ ; but in the case itself I have no doubt, distinguishing as I do between the manu- facturer of the article and the mere seller.^' But it is not so evident that the other judges acknowledged such a distinction, and some of the American cases, which have gone as far as the English ones, have not recognized it. Chancellor Kent, after citing several of the American cases, says, (2 Com. 480, note, 6th ed.,) "These last cases go quite as far at least as any of the English cases, and trench deeply upon the plain maxim of the common law, caveat emptor ; and I cannot but think that the old rule, and the old de- cisions &o\\v\. to Seixas v. Wood, 2 Caines' Rep. 48, were the safest and wisest guides, and that the new doctrine, carried to this extent, will lead to much difhculty, and vexatious litigation in mercantile business." 1 Smith's Mercantile Law, p. 59 ; Story on Agency, pp. 115, 116. CH. in.] OF THE TITLE TO MERCHANT SHIPS. 87 principal be perfectly guiltless, knowinghj commit a fraud, not only is the contract void, but the principal is liable to an action.^ The principal is responsible civilly, but the agent as a matter of tort. But when the agent, without the know- ledge of the principal, makes a representation false in fact, but not known to him to be so, in this case the contract is not affected, although it should appear that the statement made by the agent was known to the principal to be false. The principal cannot be affected in the absence of fraud on his part by such a transaction. The important case of Corn- foot V. Fowke ^ will illustrate this position. This was an action of assumpsit for the non-performance of an agreement to take a ready-furnished house. Plea, that the plaintiff caused and procured the defendant to enter into the agree- ment by means of fraud, covin, and misrepresentation of the plaintiff and others in collusion with him, on which issue was joined. It appeared at the trial that the plaintiff had employed one C. to let the house in question, and the defend- ant being in treaty with C. for taking it, asked him " if there was any objection to the house," to which he answered that there was not, and the defendant entered into and signed the agreement, but afterwards discovered that the adjoining house was a brothel, and on that ground declined to fulfil the contract. It appeared that the plaintiff knew of the existence of the brothel before, but C. the agent, did not. Held (Lord Abinger, C. B. disscntiente,) that it was not sufli- cient to support the plea, that the representation turned out to be untrue, but for that purpose it ought to have been proved to have been fraudulently made ; that, as the repre- sentation was not embodied in the contract, the contract could not be affected by it, unless it was a fraudulent repre- sentation, and that the knowledge of the plaintiff of the existence of the nuisance, and the representation of the agent i Cornfoot V. Fowke, G M. & W. 359; Baron Park, Story on Agency, i) 113, 111. 2 G M. & W. 35'J. 88 MARITIME LAW. [CH. Ill, that it did not exist, were not enough to constitute fraud, so as to support the plea. <§> 109. We have cited the case of Cornfoot v. Fowke, in support of what we regard as the settled doctrine and, we may add, policy of the common law, but not without being aware of the subsequent case of Fuller v. Wilson, ^ which ' may be considered, perhaps, as still leaving the question an unsettled and floating one in English jurisprudence. Fuller V. Wilson was an action on the case for a fraudulent repre- sentation on the sale of a house. The defendant being the owner of a house in the city of London, employed her attorney to put it in a course of being sold by auction. He de- scribed it to the auctioneer as being free from rates and taxes, and so it was stated in the printed particulars. The plaintiff bought the house on that representation for £600. It was, in fact, subject to rates and taxes amounting to about £16, on a rent of £100, and would have been sold for no more than £470, if that representation had not been made. The plaintiff brought the action for this difference of price. The defendant had made no representation at all, and her attorney who made it did not know it to be false. On the author- ity of Cornfoot v. Fowke, Lord Denman, C. J., nonsuited the plaintiff, giving him, however, leave to move to enter a verdict for £ 130. Leave was also reserved to turn the facts into a special verdict, which was accordingly done. A rule was obtained to enter a verdict for the plaintiff, and after argument it was held, that the plaintiff was entitled to recover the difference in value from the defendant ; Lord Denman, C. J., saying that whether there was moral fraud or not, if the purchaser was actually deceived in his bargain the law would relieve him from it. A writ of error was brought from the judgment of the Glueen's Bench before the barons of the Exchequer and the judges of the Common Pleas, and it was reversed. The 1 2 Gale & Dav. 460. CH. m.] OF THE TITLE TO MERCHANT SHIPS. 89 reversal was on some objection to the special verdict in the court below ; but there can be no doubt how the main ques- tion would have been disposed of, so far as the Exchequer Bench could have influenced the result, for three of the barons had concurred in the decision of Cornfoot v. Fowke, Lord Abinger, C. B., disseniiente} 1 The cases cited in the text, with regard to the representations of an agent, are important, and the principle on which they proceed (vide Cornfoot r. Fowke) should be well understood. For there are a large class of transac- tions that are executed through the medium of agents, and parties should know what degree of responsibility attaches to the representations of an agent of the character mentioned in the text. It was no part of the plan of this chapter to enter upon the subject of agency. But one or two of its topics force themselves upon our attention, and we shall briefly notice them. 1. An authority to sell a ship, or perform any other act, unless coupled with an interest ; that is an authority or power which accompanies or is connected with an interest, or unless given for a valuable consideration, or is part of a security, or has been so far executed that the rights of the agent and third parties would be affected by its revoca- tion, may be revoked at the mere pleasure of the principal. Walsh v. Whitcomb, 2 Esp. 565 ; Hunt v. Rousmanier, 8 Wheat. R. 171 ; Story on Agency, 463, 477. But in the excepted cases, unless there be an express stipulation, that the authority shall be revocable, it is irrevocable. 2. In the case of Watson v. King, 4 Campb. 272, it was held that a power, although coupled with an interest, is revoked eo instanti by the death of the principal, and that an act afterwards bond fide done under it by the grantee before notice of the death of the grantor is a nullity. A power coupled with an interest, said Lord Ellenborough, cannot be revoked by the person granting it ; but is necessarily revoked by his death. How can a valid act be done in the name of a dead man? But in this country an opposite rule is established. Chief Justice Marshal], in Hunt v. Rousmanier, 8 Wheal. 171, after defining the expression, " a power coupled with an interest," to mean an interest in the subject on which the power is to be exercised, effectually answers the argu- ment supposed to be embodied in Lord Ellenborough's significant question ; " How can a valid act be done in the name of a dead man ? " The fallacy of this question consists in the assumption, that the act must be done, if done at all, in the name of the dead man, (which is clearly impossible,) whereas, the agent having the legal title in the property, is capable of acting in his own name. " The interest," says C. J. Marshall, "or title in tiic thing being vested in the person who gives the power, remains in liiin, unless it be con- veyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which, in such a case, is the act of the principal, to be legally effectual must bo in his name, must 8* 90 MARITIME LAW. [CH. III. Of Delivery. % 110. In the contract of sale, where the other essential requisites have been observed, that is, the price fixed and the bargain struck, as between the parties, the transmutation of property is perfectly accomplished, without actual payment or delivery. The purchaser has acquired the right of property, and the right to demand possession upon tender of the price. But as to third persons, the sale is not complete, until payment and delivery, and if neither be done, a bona fide sale to a third person, followed by payment of the price and delivery of the possession will stand. i But that class of cases, where actual delivery and possession of the property are not in the power of the parties, furnishes an exception to the general rule. Symbolical delivery, where the circumstances of the property render actual delivery impracticable, passes the title to the vendee as against the world. ^ Thus, if a ship be at sea, a transfer by bill of sale, without delivery, is good as against all persons. But the vendee must take possession of her in a reasonable time after her return home. What be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the person making it. But if the interest or estate passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate being in him, passes from him by a conveyance in his own name. He is no longer a sub- stitute acting in the place and name of another, but is a principal acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits a power to the life of the person giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected without violating any legal prin- ciple." 1 2 Kent's Com, 491 ; Hinde v. Whitehouse, 7 East, 571 ; Lafon v. De Armas, 12 Rob. Louis. Rep. 598. 2 Jacobson's Sea Laws, p. 20 ; Putnam v. Dutch, 8 Mass. 290 ; Jewett ». Warren, 12 Id. 300 ; Rice v. Austin, 17 Id. 197 ; Badlam v. Tucker, 1 Pick, 389; Conrad v. The Atlantic Ins. Co. 1 Peters, 449; Bell v. Hopkins, 3 Cowen, 166 ; 7 Greenl. 241 ; 4 Mason, 515. CH. in.] OF THE TITLE TO MERCIIAXT SHIPS. 91 the law will deem reasonable time, must depend upon the circumstances of each individual case. Generally, such negligence in taking possession as will defeat the title must amount to presumptive fraud. ^ It was said, in the case of Joy V. Sears,- that the transfer was liable to be defeated, if, after her arrival in her home port, there should be such a delay in taking possession by the vendee as should indicate a fraudulent intention in the transfer, and where the delay and negligence are gross, they will of themselves defeat the conveyance against any subsequent purchaser or attaching creditor. This delay and negligence must be judged of by the jury, for whether they exist or not depends upon the situation and circumstances of the vessel and of the vendee.^ Of the Bill of Sale. ^ 111. The question has arisen in our courts, whether a delivery by parol, without any bill of sale or other instru- ment of transfer be sufficient to pass a good title to a ship. The courts of law hold that it is ; the courts of admiralty that it is not. The former, it would seem, base their adjudi- cations upon principle and analogy, the latter upon precedent 1 7 Greenl. 241 ; Morgan v. Diddle, 1 Yeates, 3 ; Turner v. Coolidge, 2 Met. 350 ; Joy v. Sears, 9 Pick. 4. 2 Id. 3 In a contract for the purchase of a vessel, then huilding, hy which it is agreed liiat the vessel shall be completed and delivered as soon as possible, at one of two places, at the option of the purchaser, it is the duty of the vendor to notify the vendee when the vessel is finished, in order that the vendee may make his election as to the place of delivery. If he gives no such notice, but sells her to a stranger, he is liable for a breach of the contract. When the knowledge of a material fact rests more in the mind of one than of another, he who has the best means of knowledge must give notice to the other. Spooner u. Baxter, 16 Pick. 409. In the case of Badlaia v. Tucker, I Pick. U. ."{H9, it was held that the purchaser is not bound to follow the ship from port to port in order to take possession ; but he may reasonably wail for her return to the port to which she belongs, and the sale will be good against creditors attaching at anv other port before such return. 92 MARITIME LAW. [CH. III. and authority. In Bixby v. Franklin Insurance Company,^ the court said, they did not find a bill of sale or other instru- ment in writing, under seal, was essential to the transfer of a ship, more than of any other chattel. Such a document might be required in the admiralty courts, but they were not aware that the principle had been introduced into the common law. They thought a bargain, a consideration paid, and delivery, would pass the property from one to another in a ship or other vessel. Inconveniences might arise in foreign countries and in the custom-house from the want of a bill of sale, but the transfer is good between the parties. <§> 112. Against the authority of this case and the cases cited in the margin, stand repeated adjudications of the ad- miralty courts, founded upon the immemorial usage of all maritime states, and upheld by the authority of such distin- guished jurists as Lord Stowell and Judge Story. In The Sisters,^ the language of the former was clear and explicit. " It has been contended in argument," he said, " that the effect of a bill of sale alone would not be material, because this was a foreign ship, in respect to which, it might not be requisite that it should pass by a bill of sale. It is said that the agreement to be found in these letters (that is, in that case,) and the actual delivery under it, would be sufficient to esta- blish the equitable title, and a reference has been made on this subject to some opinions at common law, which are said to have been given in favor of such a title." The opinions of gentlemen of that bar must undoubtedly be entitled to entire respect on a question of municipal law. But this is a ques- tion of a more general nature, arising out of a system of more general law, out of the universal maritime law, which constitutes a part of the professional learning of this court 1 8 Pick. 86 ; see also 3 Kent's Com. 129 ; Wendover v. Hogeboom, 7 Johns. R. 308 ; Lamb v. Durant, 12 Mass. 54 ; Taggard v. Loring, 16 Mass. 336 ; Vinal v. Burrill, 16 Pick. 401 ; United States v. Willing, 4 Cranch, 55 ; Thorn v. Hicks, 7 Covven, 698 ; Abbott on Shipping, pp. 2, 3, note by the American editor. 2 5 Rob. 155. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 93 and its practisers. According to the ideas which I have always entertained on this qnestion, a bill of sale is the pro- per title to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships in the usage of all maritime countries, and in no degree a pe- culiar title-deed or conveyance known only to the law of England. It is what the marititne law expects, what the courts of admiralty would in their ordinary practice require, and what the legislature of this country has now made abso- lutely necessary, with regard to British subjects, by the regu- lations of the statute law." "§. 113. Equally decisive is the language of Judge Story in Ohl V. Eagle Insurance Company.^ " The general practice," he says, '- 1 believe, of all civilized nations, has been to evidence the title to ships by a bill of sale or other written document. The nature of the vehicle, the interests of trade and navigation, and the necessity of furnishing in foreign ports and upon the ocean, some proofs of property beyond mere possession, have probably led to the adoption of this practice. I have not been able to find a single case in Eng- lish jurisprudence, in which it has been held, that a ship might pass by mere delivery, without any document in writ- ing of actual ownership." •^ 111. The English common law courts have, undoubt- edly, upon this subject, adhered to the established practice of the admiralty courts. " It is laid down that a ship may be bound by a bill of sale, but it cannot be by parol, and I never heard of it by bill of exchange." ^ 1 1 Mason, p. 390. " Ex parte Ilalkctt, 19 Ves. 475, Lord Eldon. The following aiilliorities support the rule stated hy Lord Stowcll, in Tlic Sisters. Weston v. Penni- man, 1 Mason, 310,317 ; Jacobson's .Sea Laws, pp. 17 -21, passim ; 2 Wild- man's Int. Law, 57 ; Atkinbon v. Moling, 2 Term R. 4Gii ; Story on Parl- ncrship, sect. 410. 9-4 MARITIME LAW. [CH. III. <§) 115. Notwithstanding established usage in the maritime courts, and the most eminent authority concur in requiring a bill of sale to evidence title to a ship, it will be found that the courts of common law in this country, whenever the question has arisen, either directly or collaterally, have re- cognized the legality and binding effect of a parol transfer. And we cannot but think that they proceed upon the cor- rect principle. <§) 116. A bill of sale or instrument in writing, is essential, under the Registry Act of 1792, to entitle the purchaser to a new registry, giving an American character to the vessel. But the statute goes no farther. It does not touch the ques- tion of title. It leaves that to be determined by the judicial tribunals. And we are unable to perceive any good reason why the doctrine of Bixby v. Franklin Insurance Company should not be acted upon by the courts of admiralty. Usage, of however long duration, founded upon no reasons of neces- sity, is not of such sacred character as necessarily to form an exception to established rules, as known in the transfer of every other species of personal property. It is said that a bill of sale is always tangible evidence of ownership, and that a parol transfer has nothing to evince it to the world. But it should be remembered that a bill of sale is not conclu- sive evidence of title. ^ It is only ^nm^^/acze such. It may be inquired into to ascertain if the transaction was bond fide and for a valuable consideration. After all, possession and acts of ownership are the chief indicia of title. They may be questioned, they may be overthrown by contrary proof. But if supported by evidence of a bond fide transfer, whether that evidence be documentary or parol, in the one case as well as in the other, it seems to us the title of the vendor should be protected. It is obvious that the question is not one of great practical importance. The fact, that under the law of Congress of 1792, a bill of sale is essential to obtain 1 Hovey v. Buchanan, 16 Peters, Rep. 215. en. III.] OF THE TITLE TO MERCIIANT SHIPS. 95 a new register, will, in most instances, induce the purchaser to require one. <§. 117. In England, the instrument of conveyance, from the builder of a ship to the first purchaser, is called the grand bill of sale. In practice it is now frequently dispensed with, the courts holding, that the builders' certificate required by the registry acts, is suflicient to entitle the purchaser to a certificate of registry.^ The grand bill of sale is also con- sidered necessary to pass the title to a ship at sea. We mean the assignment of it to the purchaser. All subsequent conveyances are evidenced by the ordinary bill of sale. In this country no such distinctions are recognized.- A bill of sale simply, such as transfers other descriptions of personal property, is the only one known to our law. <§. lis. When a ship is purchased with her appurtenances, or with all and singular her tackle, apparel, furniture, and instruments, the question arises, what passes by these words. Is the boat included in any of these terms ? The older au- thorities speak a pretty uniform language upon this point. They say, the boat is so separate and distinct from the ship, that not only does no property in it pass by a sale of the ship, together with its appurtenances, &c. ; but that the con- fiscation or forfeiture of the latter, does not work any confis- cation or forfeiture of the former. And for authority they refer us to the Digest.^ ^ 119. The case of Starr v. Goodwin '* is the only one ' Wilkinson on Shipping, p. G8. 2 Portland Bank v. Stacy, 4 Mass. GG3 ; 3 Kent's Com. 132. 3 Dig. 21, 2, 44 and G, 3, 1 ; Ingersoll's Roccus, p. 29, note xx. " The boat," says Roccus, " is not an appurtenance of the ship, but is ilself a small vessel." Molloy, b. ii. c. 1,8.8; Wilkinson on Shipping, p. 11)3; Abbott, Id. p. 7 ; Bcawes's Lex Mcrcatoria, p. 74. 1 2 Root's Rep. 71. In the case of Briggs v. Strange, 17 Mass. 405, it waa settled that a hoat, cable, and anchor, appurtenant to a vessel while she is lying at a wharf, not in use and necessary to the safety of the vessel, arc 96 MARITIME LAW. [CH. III. that I have been able to find m our jurisprudence where the question has been directly presented for adjudication, whether ordinarily a boat would pass on the sale of a ship and her appurtenances. In that case it was held that it would not. <5> 120. There are one or two decisions of the English courts, upon the point we are considering, which it is im- portant to notice. In the case of the Dundee, which by negligence and inattention on the part of her crew, came in collision with the Princess Charlotte, the question arose as to the meaning of the word " appurtenances " in the act of 53 Geo. 3, c. 139. That act in the first enacting clause, sub- jects the colliding ship, her tackle, apparel, furniture, and freight, to contribution, to repair the loss sustained in such cases. In all the subsequent clauses, it speaks simply of ship and appurtenances. Lord Stowell, after observing that the latter term was explanatory of the former, proceeded to define it with his usual felicity. "A cargo," he observed, " cannot be considered as appurtenances of a ship, being that which is intended to be disposed of at the foreign port for money, or money's worth vested in a return cargo. Its con- nection with the ship is merely transitory, and it bears a dis- tinct character of its own. But those accompaniments that are essential to a ship in its present occupation, not being cargo, but totally different from cargo, though they are not direct constituents of the ship ; (if indeed they were, they would not be appurtenances, for the very nature of an appur- tenance is, that it is one thing which belongs to another thing,) yet if they are indispensable instruments, without which the ship cannot execute its mission and perform its functions, it may, in ordinary loose application, be included attachable. Parker, C. J. said, under such circumstances, there was no reason why they might not as well be taken as the harness of a carriage, or the sails and rigging of a vessel when separated from the hull and laid up on shore. It will be observed that this case only determines this, that the boat, when not in use and necessary to the safely of the ship, may be severed from it by attachment. CH. in.] OF THE TITLE TO MERCHANT SHIPS. 97 under the term ship, being that which may be essential to it. as essential to it as any part of its own immediate machin- ery The word ' appurtenances ' must not be con- strued with a mere reference to the abstract naked idea of a ship, for that which would be an incumbrance to a ship one way employed, would be an indispensable equipment in another, and it would be a preposterous abuse to consider them alike in such different positions. You must look to the relation they bear to the actual service of the vessel." ^ Un- der this view of the subject it was held, that the fishing stores were liable as " appurtenances," considering the ob- jects and circumstances of the voyage, to contribution. The ship being engaged in a whaling expedition to Greenland. <§. 121. Lord Stowell's exposition of the term " appurte- nances " was adopted by Chief Justice Abbott, in Gale v. Laurie.- " "Whatever," he observes, " is on board a ship for the objects of the voyage and adventure in which she is en- gaged, belonging to the owners, constitutes apart of the ship and her appurtenances within the meaning of the act of 53 Geo. 3, c. 139." We presume that, upon the authority of these cases, as well as upon the obvious meaning of the words, that in the sale of a ship with her " appurtenances," the boat would be considered to pass under that term as being naturally designated thereby, and also as being an " indispen- sable equipment " of the ship. <§> 122. In Kynter's case ^ it was held that ballast was not " furniture " in a ship. The decision went on the ground 1 The Dundee, 1 Hagg. Adm. Rep. 109. 2 5 B. & C. 150. As the subject of insurance, the ship includes the tackle, boat, provisions, and whatever is necessary to equip her for the voyage. Phillips on Ins. p. 321. See also Hoskins v. Pickersgill, in Marsh, on Ins. p. 030. In Woods v. Russell, 5 B. &. Aid. it was held that the rud- der and cordage, bought by the builder specifically for a ship complete or nearly so, though not actually attached to it at the time of delivery to the purchaser, passed wilh the ship. 3 28 & 29 Eliz. C. P. Leon. 46, 47. Abbott on Shipping, p. 7. MAU. 9 98 MARITIME LAW. [CH. III. that, although necessary in some cases, it was not always so. Besides, it was said that ships may be laden with such merchandise as is convenient ballast of itself. In the case of Lano v. Neate ^ it appeared that the bill of sale was of a ship together with all stores, tackle, apparel, &c., in the usual form, and was silent as to " kentledge " or perma- nent ballast ; it was held that the vendee could not recover for the non-delivery of the " kentledge." Lord EUenborough said it could not be considered as part of the ship's necessary stores, since common ballast might have answered the same purpose. <§, 123. In the case of Gale v. Laurie, it would seem, from the observations of the court, that the fittings of a packet and the guns of a privateer are comprehended in the term " appurtenances." A bill of sale of the hull of a vessel, with all and singular her tackle, apparel, and furniture, does not, it has been held, include a chronometer on board at the time, when no agreement of the parties, or custom of merchants, in relation to it is made to appear, though the box contain- ing the chronometer had been secured to the transom and removed. The court in this case observed that they did not intend to decide but that, in the improvement of nautical science, chronometers might become necessary " appurte- nances " of ships.2 Of the Sale of a Ship by the Master. ^ 124. The master of a ship is intrusted with great power, for the conservation of great interests. Exposed by the in- constant nature of the element on which he exercises his employment, to extraordinary danger and vicissitude, the law does not undertake the impossible task of prescribing rules for his conduct, in new and unforeseen exigencies. It ne- cessarily clothes him with large discretionary powers, and 1 3 Eng. Com. Law Rep. 267. 2 Richardson v. Clark, 13 Maine, Rep. 421. CH. m.] OF TUE TITLE TO MERCHANT SHIPS. 99 discharges its duty when it holds him responsible for the manner of their exercise. The law keeps a watchful eye upon him in all departments of his service, and sits in judg- ment on his acts. " The law looks upon him as an officer," says Molloy, "who must render and give an account for the whole charge (of the ship) when once committed to his care aud custody. And therefore if misfortunes happen, if they be either through negligence, wilfulness, or ignorance of him- self or his mariners, he must be responsible." ^ «§. 125. Formerly, the master had no power to sell the ship in any circumstances whatever. The laws of Oleron,- of Wisbury,^ and the ordinance of Louis XIV. absolutely pro- hibited his selling, in all cases, without a special procuration from the owners. The Consolato ^ permits him to sell if the ship becomes from age unseaworthy. Mr. Justice Story thinks, by parity of reason, he might sell if the ship became innavigable from any other cause. ° "§> 126. It was not until a recent period that the power of the master to sell the ship, in extreme and exigent cases, was conceded even in England. The ancient rule, as found in the earlier ordinances, was adhered to. The authority of Lords Hale and Holt supported it. The former in the case of Tremenhere v. Tresillian ^' held that the sale of the ship by the master, although made in a foreign country, in a case of inevitable danger, the ship and tackle being beaten and broken, and there being no hope of saving any part of them, partly on account of the tempest, and partly on account of the barbarity of the inhabitants of the country, who carried off every thing cast on shore, did not convey the property to ihc purchaser. And the latter, in the case of Johnson v. • • De Jure Marit. p. 229. 2 Laws of Oleron, art. 1 3 Lqw3 of Wisbury, art. 13. 4 Consolato, art. 253. 5 Scliootier Tilion, G Mason, 477. 1 fcJid. Vo2. 100 MARITIME LAW. [CH. III. Shippen,! jg reported to have said — "The master has no authority to sell any part of the ship, and his sale transfers no property, but he may hypothecate." <§) 127. And so the law was understood and interpreted in England,^ until the case of Hayman v. Molton,^ which was determined at ?u*sej9ni(Sj by Lord EUenborough, in 1803. In that case, it appeared that the ship Grace was sent to the West Indies by her owner, and after her arrival at Jamaica got aground. A survey was called, and the surveyors, after examining her state and condition, reported that she had sustained so much injury that she should be sold for the benefit of the owner. She was accordingly sold. The owner denied the validity of the sale, and brought his action of trover to recover her value. On the part of the plaintiff, it was contended that the master of a ship could not sell her in any case ; but admitting the law to be otherwise, the sale in this instance was a §^ fraudulent one, and therefore void. The survey was repre- sented to be a mock ceremony ; the condition of the vessel being misrepresented by the surveyors. She had not bilged, although so stated in the survey, but was readily got off, and sailed soon after to England, and performed the voyage in safety. It was also contended, as evidence of a fraudulent transfer, that the sale took place before the time advertised. Erskine, for the defendant, maintained that what was done was done by the authority of the captain ; that the ship was in 1 2 Lord Raym. 984. 2 Mr. Justice Story doubted whether the cases of Tremenhere v. Tresil- lian and Johnson v. Shippen justify the inference that has been drawn from them. He cites an old reporter, (Jenkins's Cent. Cases, 16, note,) as the ground of his misgiving. " The master of a ship," says this book, " in case of danger and extremity, may cast the goods into the sea, and in some cases sell the skip, although it does not belong to him, as in case of famine," &c. Judge Story admits, however, that the language of Lord EUenborough, in Hayman v. Molton, is very expressive of his opinion of the then state of the law on that subject. 5 Mason, 472, 3 5 Esp. 65. CH. ni.] OF THE TITLE TO MERCHANT SHIPS. 101 fact a wreck, and, as matter of law, the captain had a virtual authority from the owners of a ship, under such circum- stances, to sell what remained of her. He did not contend for an unqualified power in the captain to sell under every circumstance, but in the present case he admitted that, though the vessel was aground, yet if she was easily, in the opinion of sailors, got off, it would be evidence of fraud in the pur- chase, if bought as a wreck ; but he stated he would show that it was extremely doubtful whether it would be practi- cable or not, and that it was attended with much risk and expense, and that the captain was therefore well warranted in law in the step he had taken. Lord EUenborough. A captain of a ship has by law a right to hypothecate her in a foreign country, for the purpose of raising money for her necessary repairs ; but lie lias no such general authority by law as to sell. The case of Tremen- here v. Tresillian, from 1 Sid. 453, has been cited to that effect, and no doubt the law is so ; but there are circumstances arising in consequence of the increase in our commercial transactions that may admit some extension of that rule of law. Where a case of urgent necessity and extraordinary difficulty occurs when a ship has received irremediable injury, I am disposed to go as far as I can to support what has been contended for by Mr. Erskine, that under such circumstances, the captain acting bona fide, and for the benefit of his owners, might sell her. This is the disposition of my mind, but I cannot lay it down as positive law. At all events, it can only be justified by extreme necessity and the most pure good faith, that is, if the vessel is in such a state as it would be probable the owners themselves, if on the spot, would have acted in the same way the captain has done, and have sold the ship. And Lord EUenborough, therefore, left it to the jury to say whether, in that case, there existed such a necessity as called upon the captain, acting for the benefit of his owners, to sell the ship. "^ 128. The case of Ilayman v. Mollon is interesting as showing that what is now a firmly-cstablishcd doctrine of 9* 102 MARITIME LAW. [CH. IH. English jurisprudence, dates its first recognition from that decision. It is one of many instances, too, of the progres- sion of the law, of its flexible character, adapting itself to the necessities of human aff'airs. Formerly, the master was invested with no authority, except what related to the navi- gation of the ship. But the increase of "commercial trans- actions " and the various exigencies thence arising, demanded that he should be clothed with additional powers. He is therefore now considered, for certain purposes, to have a special property in the ship, and virtute officii, plenary author- ity, in unforeseen emergencies, to act pro hac vice, as if he were the owner. <§. 129. The prohibhion of sale by the master, contained in the earlier European ordinances, is not now regarded in France nor elsewhere upon the continent. ^ The modern code of the former country permits a sale in all cases of in- navigability formally ascertained by a survey.^ >§, 130. Since the case of Hayman v. Molton, the stream of English decision has followed in an undeviating channel. ^ Mr. Sergeant Shee, in his valuable edition of Abbott on Ship- ping,* states with singular precision the doctrine which the various decisions of the English courts establish. A master may be justified, he says, in selling his ship, when he finds her in such a condition, from any cause or combination of causes, as from recent damage, imperfect construction, bad material, old age, and decay, that she cannot safely proceed 1 Jacobsen's Sea Laws, p. 360. 2 Code de France, art. 237. 3 Vide Reid v. Darby, 10 East, 157; Mills v. Fletcher, 1 Doug. 231 ; Wilson V. Millar, 2 Stark. N. P. C. 3 ; The Fanny and Almira, Edwards, Adm. R. 118 ; Green v. Royal Ex. Ins. Co. 6 Taunt. Rep. 68 ; Idle v. Same, 8 Taunt. 755 ; Robertson v. Clark, 1 Bing. R. 445 ; Read v. Bonham, 3 Brod. & B.'s Rep. 147 ; Allen v. Sugrue, 8 B. & C. 561 ; Somes v. Same, 4 Car. & P. 276 ; Doyle v. Dallas, 1 M. & Rob. 48 ; Barr v. Gibson 3 M. & W. 390 ; Hunter v. Parker, 7 M & W. 322. 4 Page 19, Shee's notes. CH. in.] OF THE TITLE TO MERCHANT SHIPS. 103 on her voyage, without repairs which he has not the means of obtaining, or only at a cost exceeding the amount wliich, looking at her probable value after their completion, a pru- dent and discreet owner would think right to incur. <§, 131. In this country, it is universally held that the master, in a case of extreme necessity, acting in good faith and for the benefit of all concerned, is authorized to sell the ship intrusted to his care.^ But the necessity must be made to appear. And the onus probandi rests on the purchaser. He must establish, beyond a reasonable doubt, that there was such necessity, otherwise his title never took effect. When the sale is contested, the libellant stands on his original title, and until that is displaced by another, clearly proved, he may rest upon it.'-^ <5> 132. It is not alone sufficient that the master acted in good faith and in the exercise of a sound discretion." Neces- 1 Vide Gordon v. Mass. F, & M. Ins. Co. 2 Pick. 249 ; American Ins. Co. V. Center, 4 Wend. 45 ; Same v. Ogden, 15 Wend. 532 ; Winn v. Co- lumbian Ins. Co. 12 Pick. 285 ; HalU. Franklin Ins. Co. 9 Pick. 466 ; Fon- tain V. PhcEnix Ins. Co. II Johns. 293 ; Scull v. Biddle, 2 Wash. C. C. R. 150 ; Robinson i'. The Commonwealth Ins. Co. 3 Sumner, 220 ; Patapsco Ins. Co. V. Soutligate, 5 Peters, G04 ; Ilartman v. The Brig Will, Pennsyl- vania Law Jour. vol. 9, p. 3 ; The Sarah Ann, 2 Sumner, 206; The Schooner Tilton, 5 Mason, 475 ; The New England Ins. Co. v. The Sarah Ann, 13 Peters, 387 ; Center v. American Ins. Co. 7 Cowen, 564 ; Bryant v. Com. Ins. Co. 13 Pick. 544. 2 The Tilton, 5 Mason, 475. 3 Patapsco Ins. Co. v. Southgate, 621 ; The Ship Fortitude, 3 Sumner, 254. In connneclion with the subject we are now considering, we may be pardoned for inserting the observations of Lord Slowcll, in the case of the Generous, 2 Dodson's R. 322, upon the necessity which will excuse a positive violation of law. " The law and the administration of it," he observes, " must yield to thai to which every thing must bend — to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim, as it docs in its general aphorisms, all intention of compelling tlicm to impossibilities ; and the administration of law must adopt that general exception in the considera- tion of all particular cases. In the performance of that duty, it has three points to wliich its attention must be directed. In \.\\ii first place, it must sec 104 MARITIME LAW. [CH. III. sity and good faith must concur. The act at the time and on the spot must appear to be indispensably requisite. The reasons, as observed in the case of Hall v. Franklin Insur- ance Company, 1 should be cogent. It should be such neces- sity as demands action, action to prevent a greater sacrifice or a total loss of the property. Hence, if a ship becomes innavigable from any cause, and repairs cannot be made for want of means, or from the high price of materials and labor, or the difficulty of procuring them, the expense of repairing should be wholly disproportionate to the value of the vessel when repaired, then a case of necessity which requires and justifies a sale is established.^ that the nature and necessity pleaded be such as the law itself would respect — for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of con- trolling, is of that nature. Secondly. That the party who was so placed used all practicable endeavors to surmount the difficulties, which already formed that necessity, and which on fair trial he found insurmountable. I do not mean all the endeavors which the wit of man, as it exists in the actual un- derstanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly. That all this shall appear by distinct and unsuspected testimony, for the posi- tive injunctions of law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation." 1 9 Pick. 466. 2 In the case of the Brig Sarah Ann, 2 Sumner, 207, 215, Judge Story, after stating that he concurred at once with the doctrine that it is not suffi- cient to show that the master acted with good faith, and in the exercise of his best discretion, proceeded to say : " The claimants (upon whom the onus probandi of the sale is thrown) must go further, and prove that there was a moral necessity for the sale, so as to make it an urgent duty upon the master to sell, for the preservation of the interest of all concerned. And I do not well know how to put the case more clearly than by stating, that if the circum- stances were such, that an owner of reasonable prudence and discretion, act- ing upon the pressure of the occasion, would have directed the sale from a firm opinion that the brig could not be delivered from the peril at all, or not without the hazard of an expense utterly disproportionate to her real value as she lay on the beach, then the sale by the master was justifiable, and must be deemed to have been made under a moral necessity. And this I consider the true doctrine deducibJe from the case of Gordon v. The Massachusetts 105 CH. in] OF THE TITLE TO MERCHANT SHIPS. <§, 133. Ill a case of necessity, such as has been described, apparently existing at the time and np6n the spot, the master Marine and Fire Insurance Company, Pick. R. 249, where the subject is examined very much at large, and with great ability." In the case of the Ship Fortitude, 3 Sumner, 2iS, the same learned jurist defines the term •' moral necessity." " Some criticism," he observes, " has been employed upon the words ' moral necessity,' as applied to the conduct of the master acting in cases of this sort ; and it has been more than intimated that the expression is quite new, and can scarcely be traced beyond the case of Gor- don V. The Mass. M. and F. Ins. Co. It does not appear to me that the criticism has any just foundation, or that the expression is cither new or inapt. It seems to me to indicate precisely that which such a case requires. Moral necessity arises when there is a duty incumbent on a rational being to perform, which he ought at the time to perform. It presupposes a power of volition and action, under circumstances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming superior force. Indeed, I hardly know how a case of physical necessity can correctly be said to exist in cases where an agent is called upon to exercise judgment and decision, to act or not to act. Take the case of a master of a ship in a storm of imminent peril, where a jettison seems required, or masts are to be cut away to save the ship from foundering at sea. The master is called upon to act ; but even in such an extremity he has a choice, and when he acts, he acts, properly speaking, upon his judgment, under a moral rather than a physical necessity ; but in ordinary cases, when a master orders repairs or supplies for the ship, it would be an entire deflection from the true use of language to call it a case of physical necessity. So far as the master is con- cerned, it is his duty to procure suitable repairs and supplies, in order to en- able him to save the ship and prosecute the voyage ; and this sense of duty, when it becomes imperative by its urgency upon his conscience and judg- ment, constitutes what is most appropriately called a moral necessity. No one can correctly say, in such a case, that the master is under a physical necessity to make the repairs or to procure the supplies." Mr. Justice Story's definition of moral necessity is as felicitous as the cases he puts to illustrate it are singularly unhappy. That is physical necessity which ad- mits of no alternative, which forces a particular course of conduct, as the price of safety or security. " The master of a ship in a storm of imminent peril, where ma-sts are to be cut away to save the ship from foundering at sea," is placed in such an extremity that he has no choice, unless, indeed, it be the melancholy one of acting or going to the bottom. When the judg- ment is convinced, by the immincncy of the surrounding perils, that but one course is to l)o pursued to preserve life, that course, to clTect that olijoct, must ho adopted ; and that constitutes physical necessity. For alihough there may be, in fact, an error of judgment, yet the master, in the case sup- & 106 MARITIME LAW. [CH. III. will be justified in a sale of the ship, although subsequent events may show that a different course might have been attended with success. In the case of the Sarah Ann it was contended by the libellants, that, inasmuch as the brig was gotten off by the purchasers after the sale, it was proof that the necessity of a sale did not exist. But the court deter- mined otherwise. " The fact," said Mr. Justice Story, " that the brig was actually gotten off by the purchasers after the sale, is certainly a strong circumstance against the necessity of the sale. But it is by no means decisive, for we are not, in cases of this sort, to judge by the event, for a vessel may be apparently in a desperate situation, and yet by some lucky accident, or unexpected concurrence of fortunate circum- stances, she may be delivered from her peril. We must look to the state of things, as it was at the time of the sale, and weigh all the circumstances, the position and exposure of the brig, the season of the year, the dangers from storms, the ex- pense of any attempts to get her off, the probable chances of success, and the necessity of immediate action on the part of the master one way or the other." ^ <§. 134. The same doctrine was repeated by the Supreme Court of the United States, in the same case, on appeal from the Circuit Court. " The master must have the best inform- ation which can be got, and must act with the most pure good faith. The necessity for a sale cannot be denied when the peril, in the opinions of those capable of forming a judg- ment, makes a loss probable, though the vessel may in a short time afterwards be got off and put afloat. It is true, the opinion or judgment of competent persons may be falsi- fied by the event, and that their judgment may be shown to have been erroneous by the better knowledge of other per- posed, acts upon the hypothesis that the danger is real, that there is no alternative, no choice, nothing but do or die. How then can it be said, that the master " in such an extremity has a choice, that he acts upon his judg- ment, under a moral rather than a physical necessity T" I The Sarah Ann, 13 Peters, 387 ; S. C. 2 Sumner's Rep. 215. CII. III.] OF THE TITLE TO MERCHANT SHIPS. 107 sons, showing it was probable the vessel could have been extricated from her peril without great injury or incurring great expense, and the master's incompetency to form a judg- ment, or to act with a proper discretion in the case may be shown. But from the mere fact of the vessel having been extricated from her peril, no presumption can be raised of the master's incompetency, or that of his advisers Nor will any ascertainment of the cost of repairs, subsequent to the extrication of the vessel, raise a presumption against the necessity to sell, whatever may be her condition as to strength, and though she may not be injured in the hull, if the actual and immediate prospective danger, menaces a pro- bable total loss." ^ <^ 135. Cases of urgent necessity, as we have seen, super- induce upon the ordinary authority of the master, that of accent to sell the ship. He acts, because the owner is not I The testimony of the master to establish the necessity of a sale, is of the utmost importance and ^vellnigh indispensable. In the case of Hart- man V The Brig Will, 9 Penn. Law Journal, p. lU, Hi, it was said by Kane J , that if the voluminous proofs of the claimants included all the evidence of which the case was susceptible, or which a court had the right to ask for, the inclination of his mind would be to sustain the sale, but there was wanting the evidence of the captain himself, and m Us absence without explanation, he could not decide in their favor. The captain knows or ou^rht to know better than any one else, what is the condition of his ves- sel what injuries she has sustained, and to what extent she may be further injured by continued exposure, what means of rescue are at his command, what is the efficiency of his crew, and the goodness of his tackle, what moneys he has and what moneys he can procure, with which to engage as- sistance from others; where his owners live, and who are their nearest correspondents. The purchaser, therefore, relies even for the evidence of that necessity, which is the basis of his title, upon the perfect good faith of the master But above all, on the (luestion of the integrity ot the sale directly put in issue by the libellanl, the captain's evidence is vital to the claimant's case. I can scarcely imagine a state of circumstance in which the rights of a litigant party being absolutely dependent on the good fulh of a third person, that good faith can be regarded as adequately vindicated arrainst assault, without an appeal to his conscience, if he is alive and ac- cessible. 108 MARITIME LAW. [CH. III. present to act for himself. If the circumstances admit of sufficient delay, the owner should be consulted. If the ne- cessity arises in a foreign country, it would, in most cases, be impossible for the master to communicate with the owner. The ship might be utterly lost in the mean time. But in the country where the owner lives, with the wonderful facilities of communication that now exist, nothing but the most pressing necessity, which demands immediate action and admits of no delay, would justify the master in a sale of the ship, without first consulting the agent or owner.^ <§> 136. The owner, when it can be done, is entitled to be informed of the condition of his property, and thus have the opportunity to exercise, if he deems it important, his own judgment in regard to the disposal of it. But in a clear case of necessity, where delay would be perilous, the power of the master to sell, is the same at home as abroad. This question has been examined in the Supreme and Circuit Courts of the United States. The decisions have been con- fiicting,^ bat the judgment of the court of controlling author- ity, was in favor of the power of the master to sell, as well on the home shore as on the foreign. 'D' <§) 137. In the case of Scull v. Biddle,^ Judge Washington observed that in cases of extreme necessity, the master may sell in a foreign country, rather than let the property perish, but not in the country where his owner lives, and no case of the sort can, it is believed, be shown. Mischievous would be the consequence if such doctrines were tolerated. In this case, there was, in fact, no necessity for the sale, for the cap- tain might have got these articles into a place of safety, and ought to have done so, and informed his owner, or rather ' Pierce v. Ocean Ins. Co. 18 Pick. 83. 2 Scull V. Biddle, 2 Wash, C. C. R. 150 ; vide The Tilton, 5 Mason, 476 ; The Sarah Ann, 2 Sum. R. 215 ; S. C. 13 Peters, 387. 3 2 Wash. C. C. R. 150. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 109 the owner of the vessel, of her situation ; he, the owner, liv- ing in Philadelphia. <§, 138. Judge Story, in The Sarah Ann, controverted the doctrine of the above case. " It has been suggested," he said, "at the argument, that as the stranding was on a home shore, at no great distance from the residence of the agent of the owners, the master was not authorized to sell without consulting the agent or the owners. I agree at once to the position, if there is no urgent necessity for the sale. But if such an urgent necessity does exist, as renders every delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore or on a foreign shore, whether the owner's residence be near, or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington, in Scull v. Biddle, and unless it is to be received with the qualification above stated, I cannot assent to it." ^ «§> 139. The opinion of the Supreme Court of the United States in the same case was to the same effect. " The court then," said Mr. Justice Wayne, '• having stated its opinion as to what makes an extreme necessity, it follows that it can- not be laid down as a universal rule, that the master's power to sell is limited to cases of extreme necessity in a foreign port, or in a port of the United States of a different State than that to which the vessel belongs, or in which her own- ers may be or reside when the necessity occurs. The true criterion for determining the occurrence of the master's au- thority to sell, is the inquiry, whether the owners or msur- ers, when they are not distant from the sx^ene of stranding, can, by the earliest use of the ordinary means to convey in- telligence, be informed of the situation of the vessel in time to direct the master before she will probably be lost. If there is a probability of loss, and it is made more hazardous 1 2 Sumner, 215. MAR. 10 110 MAKITIME LAW. [CH. III. by every day's delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved We do not think the case of Scull V. Biddle, notwithstanding our respect for the memory of the eminent judge who made it, sound law. It is express- ed in terms too broad. The mischievous consequences ap- prehended may be controlled in each case by such proof as we are obliged to depend upon to maintain and secure from abuse other interests, equally important to society in general as to individuals engaged in some particular pursuit. <§, 140. This decision of the Supreme Court, affirming the opinion of the Circuit Court, in The Sarah Ann, is undoubt- edly the law of this country. It was also said in this case, that the power of the master to sell the hull of his stranded vessel, exists also as to her rigging and sails, which he may have had stripped from her, after unsuccessful efforts to get her afloat, or when his vessel, in his own judgment, and that of others competent to form an opinion and to advise, can- not be delivered from her peril. The presumption is, that they are injured, that they can never again be applied to the use of the vessel, and they must ordinarily become, from day to day, of less value. In fact, they are a part of the vessel when stripped from her, and the mere act of separation by the vigilance and effort of the master, by which they are saved from the ocean, does not take them out of his implied power to sell in a case of necessity. The necessity does not, as has been supposed, mean that no part of her tackle, ap- parel, or fiwniture saved, shall be sold, because they are no longer liable to loss ; but when they are saved, whether a sound discretion does not require them to be sold for the benefit of all concerhod.^ Of Sales ordered hy Admiralty Courts. ^ 141. The admiralty courts abroad, on application by the 1 13 Peters, 387. CH. III.] OF THE TITLE TO MERCHANT SHIPS. Ill master, together with pi'oof of the innavigable and irrepara- ble condition of a vessel founded on a survey and a report thereon, proceed to decree a sale. The order of proceeding usual in these cases, is, — 1. A petition by the master to the court for a survey. 2. A commission of survey. 3. Report of surveyors. 4. Decree of the judge, adopting the report. .5. Petition of the master for a sale. 6. A commission of sale, directed to the marshal of the court. ^ *§) 142. The English courts of common law condemn a proceeding of the character stated in the preceding section, and attach no binding force to it. They have denied the jurisdiction of the admiralty courts, under the general mari- time law, to act in such cases. In the case of Reid v. Darby, which is a leading and important one upon this point, it ap- peared that the ship Glamorgan, having put into the port of Tortola in distress, was, upon the usual application of the master, sold under the direction of the Yice-admiralty Court of that place. The plaintiff, who was the original owner, brought the present action (trover) to recover the value of the ship, together with special damage. Lord EUenborough, in giving the opinion of the Court of King's Bench, said that " the transfer of the property in the ship, upon which the defendant in this case relies, can only be supported on one of these two grounds: — First, that of a valid sale under the decree and commission of the Vice-admiralty Court of Tor- tola, where the sale took place — or, secondly, on the ground of an authority, either express or implied, derived from the owner to the captain, enabling him to sell the ship in such a case as has occurred. For the former, namely, that of a valid sale under the decree and commission of the vice- admiralty court of Tortola, upon the fullest inquiry we have been able to make, we find no adequate foundation in the legitimate powers of the admiralty courts. No instance has been discovered in which such a power has been exercised 1 AbboU on yiiippiiig, p. 27. 112 MARITIME LAW. [CH. UI. in the admiralty courts at home. Nor can we find any terms in the vice-admiralty commission, or any principle upon which that practice can be sustained, (which certainly, how- ever, has obtained in the vice-admiralty courts abroad,) of decreeing, upon the mere petition of the captain, the sale of a ship reported upon survey to be unseaworthy, and not re- parable, so as to carry the cargo to the place of its destina- tion but at an expense exceeding the value of the ship when repaired. 1 <§. 143. On the other hand, the High Court of Admiralty at Westminster Hall, has shown a disposition to sanction these proceedings of the vice-admiralty courts abroad. And unquestionably, had not the courts of controlling authority in the kingdom otherwise decided, it would have affirmed the jurisdiction of the foreign admiralty courts, to decree the sale of a ship on the usual proof of its necessity. Lord Stow- ell, both in the Fanny and Elmira and the Warrior, expresses himself to that effect. In the former case he said, " There is a very convenient practice which obtains in the courts of vice-admiralty in the West Indies, where the fact of distress being proved the transaction is not left to the master, but a sale is ordered under the superintendence of the court itself. The legal validity of such transfers has, however, been contested in the courts of this country, and they were not held to be good, though the learned lord who presided in the court where that decision took place, might perhaps incline to consider it as a defect in the law of this country, that a practice so conducive to the public utility could not legally be maintained. 2 <§, 144. In the case of the Warrior,^ which was an applica- 1 Reid V. Darby, 10 East, 143 ; vide also Hunter u. Princeps, 10 East, 378 ; Hunter v. Baker, 7 M. & W. 322 ; Haynaan v. Molton, 5 Esp. 65; An- drews V. Glover, vide Abbott on Shipping, p. 20. 2 Edwards's Adm. R. 117. 3 2Dod. Adm. R. 288. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 113 tion on the part of the original owner, Matthew Boyd, to be put in possession of the ship, it was claimed by the person having present possession that the legal title was in him, derived by purchase from Robert Berry, the agent of Boyd, at the Isle of France. It appeared in evidence that the vessel being in want of repairs, and the agent of the owner having no funds in his hands with which to make them, the master applied to the Court of Admiralty. A survey was ordered, and on report of the surveyors of the condition of the vessel, the court directed the master to take up money on bottomry. He was not able to obtain it. The court then decreed a sale. The sale took place ; but the master, to prevent a sacrifice, bid in the property. He then applied to the agent, who advised a private sale, which was accord- ingly made. The ship was bought by the present possessor, who now asserted, in virtue of his purchase, the legal owner- ship. Lord S to well refused to transfer the possession to the former owner. In delivering the judgment of the court, he referred to the conduct and duty of the captain as follows : "What," he asked, "was the captain to do? For I must advert to the situation in which the man is placed, in a remote part of the world, without any instructions from his owner, applicable to such circumstances. Common sense as well as the law points out that he should apply in the first place to the agent of the owner, which it appears that he did. If the agent cannot or will not assist, and if himself and his owner are without any other friends who are ready to come forward and furnish him with the necessary supplies, what can he do better than to make application to the Court of Admiralty ? In some parts of the world the authority of such is deemed conclusive, though it certainly has been otherwise held by the courts which possess the controlling power within the British territories. But the want of such juris- diction I have heard greatly regretted by some of the emi- nent persons who now preside in those courts." «§, 145. In this country, the jurisdiction of the admiralty 10* 114 MAKITIME LAW. [CH. III. courts, to decree the sale of a vessel on application of the master and proof of the fact of distress, is, I presume, to be considered as established. Mr. Justice Story is of opinion that the doctrine of the Supreme Court of the United States, in Janney v. Columbian Insurance Company,^ is that it is properly a part of the admiralty jurisdiction. His own opinion is clear, that the courts of admiralty are competent to examine into the circumstances of distress and order a sale. In the Schooner Tilton, referring to the case of Reid v. Darby ,2 he says, " To what is suggested in that case, as to the want of jurisdiction in the admiralty courts to decree the sale of a ship in a case of necessity on an application of the master, I, for one, cannot assent. I agree that in such a case, the decree of sale is not conclusive upon the owner or upon third persons, because it is made upon the application of the master, and not upon an adverse proceeding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is primd facie evidence of a rightful exercise of authority, but no more. The pro- ceeding being ex parte cannot be deemed conclusive in favor of the party promoting it."^ <§> 146. Policies of insurance usually contain a stipulation, that if the vessel, after a regular survey^ should be found 1 10 Wheat. 411. - 10 East, 143. 3 5 Mason, 476. "The admiralty," says Mr. Benedict, in his work on the Jurisdiction and Practice of Admiralty Courts, p. 169, s. 299, " has also jurisdiction of the survey and sale of vessels. In cases of distress or serious injury, in which a master, in a port away from his owners, finds it impracti- cable to repair, refit, or proceed on his voyage, the sale of the vessel and cargo seems to be his only resort, and nothing can be more fit and proper than that the maritime courts, administering the law of the sea, and in some sort the law of nations, should be held competent to examine into the cir- cumstances, and order a sale. The master himself cannot fail to find in such a jurisdiction a most reliable auxiliary, and to the owner and underwriter it must be a protection against fraud, improvidence, and indiscretion. Under the influence of English common-law decisions, there has been some dispo- sition to deny the admiralty jurisdiction, but it may now be considered as established." OH. III.] OF THE TITLE TO MERCHANT SHIPS. 115 unsound or rotten, the assurers are discharged from paying their subscription on the policy. These regular surveys are commonly made under the direction of the courts of admi- ralty. The decisions in our courts have proceeded upon the ground that they have the requisite jurisdiction. The Su- preme Court of the United States has incidentally affirmed the jurisdiction. 1 <§. 147. It is not essential to the validity of a survey that it should emanate from a court of admiralty. But in insur- ance cases, where the contract specifies a "regular survey," it must be such as is known to the laws and customs of the port where the vessel happens to be. Certainly, it is import- ant, where the liability of the underwriter is to be deter- mined by the result of the survey, that it should be made under the direction of some known and established author- 1 Dorr V. Pacific Ins. Co. 7 Wheat. 581. "On this subject," (of sur- veys,) said Mr. Justice Johnson, in delivering the opinion of the court in this case, " the nature of the contract of insurance, casts the parties on the mu- nicipal regulations of all the world. Every commercial country has its own regulations on the subject of surveys. It is properly a subject of admiralty jurisdiction, since mariners and freighters have to claim the aid of the admi- ralty to release them from their contracts in cases of a defect of seaworthi- ness. A regular survey must, therefore, in every instance, be such as is known to the laws and customs of the port in which a vessel happens to be. In this instance, both from the jurisdiction assumed by the court, and the known habits of British jurisprudence, the mode of passing a survey through a court to give it authenticity, may well be adjudged a regular survey accord- ing to the laws of the port into which this vessel was forced." In the case of Janneyr. Columbian Ins. Co. 10 Wheat. 411, the court said : " In other parts of the world the surveying power is very generally exercised as an incident to the admiralty power, and the admiralty jurisdiction under our system, can only be exercised under the laws of the United States. We do not mean to intimate that the power is one which cannot be exercised under municipal regulations. On the contrary there are many reasons for maintaining that it may be so exercised until Congress may think proper to establish some gene- ral rule upon the subject, either as one appertaining to trade and commerce, or within the admiralty jurisdiction." Vide also Carrigucs v. Coxe. 1 Binn. .592 ; Amroyd v. Union Ins. Co. 2 Hinn. 391 ; Sticnmilz v. United Ins. Co. 2 Serg. & K. 293. 116 MARITIME LAW. [CH. III. ity, and not be left to surveyors, selected by the captain himself. <§. 148. Where there is an absence of such stipulation in policy of insurance, as above described, the survey being an ex parte proceeding, is not admissible in evidence, unless the defendants (the assurers) call for it. A certificate of survey is not legal evidence, because the examination of the survey- ors would be better. But when the policy contains the stipulation, then the parties have by compact determined by what criterion their rights shall be ascertained, that is, by the certificate of survey. And when it appears that it is authentic and regular, it is evidence of the facts contained.^ <§) 149. The object of a survey is to ascertain whether the ship shall be repaired, if the means of repairing can be ob- tained, or sold. And it is the doctrine of our courts, that if the proceeding was fairly conducted, the act of the captain, in accordance with the report of the surveyors, will be sanc- tioned, unless it appears that the report was based on suppo- sititious facts or upon inferences not warranted by the actual facts.2 And the onus probandi is thrown upon those who would impeach the transaction. >§> 150. We have seen that a " regular survey," within the meaning of a policy of insurance must be such as is known to the laws and customs of the port where the vessel hap- pens to be. It would be highly irregular and dangerous, it seems to us, if the master should be permitted to appoint the surveyors himself, when by the law of the port there was an established mode of procedure, under the direction of a legal authority. Irregular, because it would be contrary to the ' Dorr I). Pacific Ins. Co. 7 Wheat. 581 ; Abbott w. Seabor, 3 Johns, Cas. 39 ; Wright v. Barnard, 2 Esp. 901 ; Saltus v. Com. Ins. Co. 10 Johns. 487 ; Hall v. Franklin Ins. Co. 9 Pick. 466. 2 Gordon v. F. and M. Ins. Co. 2 Pick. 249 ; Hall v. Franklin Ins. Co. 9 Pick. 466. CH. ni.] OF TUE TITLE TO MERCHAXT SHIPS. 117 known and established course of procedure. Dangerous, because it would open the door to collusion and fraud. We are now speaking of a case where the parties to the insur- ance have bound themselves to abide the result of a "regu- lar survey." In the absence of that stipulation, there might not be danger from collusion, because the surveyors them- selves would be called as witnesses, and the whole transac- tion be probed. In the latter case, then, there might be no objection to the informal survey of which we are speak- ing, that is, a survey made upon the mere private application of the master directly to the surveyors.^ <§> 151. In the case of a sale of the ship, the legality of the act depends upon its necessity. That must be made out. A survey in this instance, whether it be a formal or informal one, is not conclusive of the fact of such necessity. It is evidence, indeed, of a very important nature, but it may be examined and rebutted. Hence, as between the original owner and the purchaser, the character of the survey is only material as a matter of evidence. That it is fairly conducted is the essential consideration. <5> 152. In the case of Potter v. Ocean Insurance Company,^ it was said, that if an American consul should interpose in behalf of the master, and with a view to assist him, should appoint the surveyors at his request, and thereby sanction their competency to the task, there was no good reason why such an appointment should be deemed objectionable. As a known public officer, the act of a consul would, even if he 1 PoUer V. Ocean Ins. Co. 3 Sumner's R. 40. In this case, Mr. Justice Story, it would seem, did not regard a " regular survey," that is, a survey emanating from a court of admiralty, or some other tribunal, known to the laws and customs of the port, as having cognizance of matters of that nature, as at all important, or rather necessary. "I am not aware," is his lan- guage, " that it is an indispensable requisite that surveys should be ordered by courts of admiralty. On the contrary, a survey may be made upon the mere private application of the master directly to the surveyors." 2 3 Sumner's R. 40. 118 MARITIME LAW. [CH. III. had no express or implied authority to make the appointment ex officio, be deemed an act of higher authority and more entitled to public confidence, than that of the master himself, and might be an inducement to the surveyors to undertake the duty with more promptitude and responsibility. But the court were not aware that the issuing of a commission for a survey was, in truth, beyond the rightful authority of a con- sul in cases of this sort. That depends on the course of trade and the common functions established by the general consent and custom of nations in regard to consuls.^ «§> 153. It was said in the case of Hall v. Franklin Insur- ance Company,^ that the surveyors should be sworn to the faithful performance of their duties. But it was held in the case of Potter v. Ocean Insurance Company not to be neces- sary. The court remarked that there was no law requiring it to be done. <5> 154. It may be proper in this place, briefly to refer to the sale of wrecked or abandoned ships, under the authority of the state or nation on whose shores they may have been cast, or left derelict. The competency of every government to prescribe rules relative to the disposition of such property, in such circumstances, is admitted. Accordingly a sale of a wrecked or abandoned ship, in conformity to the municipal law of a state, devests all previous titles, and confers a valid title on the purchaser. All foreign courts from comity and motives of utility, recognize a title thus acquired. When the 6o7i(^ ^(Ze and official nature of the transaction is made to appear, the proprietary right of the purchaser, is everywhere respected.^ 1 Judge Story held, that in the absence of all controlling proof, that as the consul did make the appointment of the surveyors in this case, it afford- ed some presumption that it was a rightful exercise of authority. " 9 Pick. 466. 3 Grant v. McLachlin, 3 Johns. R. 40. The Schooner Tilton, 5 Mason 465. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 119 <§> 155. A master selling his ship, in a case of distress, does it as agent of the owner. The prohibition of law, that for- bids agents and trustees from buying the property intrusted to their care, applies to him. He cannot act in a double and conflicting capacity. He cannot be both vendor and vendee at the same time. Such a license would expose him to a temptation ordinarily too strong for human nature to re- sist. He would be placed in a situation, where it would be likely to occur, that if he promoted the interest of his prin- cipal, he would sacrifice his own. Hence the law, in all cases directly interdicts the purchase by agents or trustees, at either public or private sale, of property confided to their care.^ It is to be understood as a qualification of this doc- trine, that the principal may adopt or avoid the act (that is, the purchase,) of the agent at his election, or he may con- sider the purchase as made for his benefit, or treat it as a nullity, as it is without his ratification.^ A sale of a ship, and a purchase by the master will not afi'ect the underwrit- ers. The parties, assurers and assured, remain in the same situation, as if no sale, or formality of sale, had taken place.^ But when the owners treat the sale as made for their bene- fit, and proceed to repair the ship, they forfeit the right of abandonment."* <§. 156. The master, empowered, in circumstances of dis- tress, and in consequence of them, to sell the ship, is neces- sarily clothed with the incidental authority to do all that is requisite to complete the transaction. Hence he may exe- cute, in his own name, a bill of sale. " The master acts, virtute officii, as master, and being in possession of the pro- ■ — _ — • 1 Slory on Agency, p. 199 ; Baker v. Marine Ins. Co. 2 Mason, 3G9 ; Copeland v. Merc. Ins. Co. G Pick. 198 ; Church v. Marine Ins. Co. 1 Ma- son, 311. 2 Church V. Marine Ins. Co. 1 Mason, 315 ; The Schooner Tillon, 5 Ma- son, 475; Chamberlain v. Plarrod, 5 Greenieaf, 420 ; Maryland and Pheni.v Ins. Co. V. Bathurst, 5 Gill and Johns. 159. 3 Ibid. See the last cited cases. 4 Hall V. Franklin Ins. Co. 9 Pick. 4GG. 120 MARITIME LAW. [CH. III. perty, the law treats him as one capable of selling in his own name, but for the benefit of the owner. Foreign purchasers in a foreign country, can have no knowledge of the persons who are the real owners, or if they may have knowledge of those who were owners at the commencement of the voyage, they can have no knowledge of any intermediate transfers by sale, by death, by bankruptcy, or by operation of law, and if no sale would be good except made in the name of the persons, who were the real owners at the time, many of the purchases, made in cases of sales of necessity, would be liable to be avoided. Sales of all other property of the owners except ships, made by the master in his own name, would be gene- rally deemed sufficient to pass the title, if the sale was otherwise justifiable. Foreigners treat with him as they do with factors in like cases, as owner de facto. My opinion therefore, is, that in a case of sale, strictly of necessity, the master may give a sufficient title in his own name, as by operation of law, substituted owner p7^o hac vice, or at least as an agent, capable of passing the possession and property bij a hill of sale in his oion name."^ <§) 157. Generally, an agent employed to sell an estate is not, as such, authorized to receive the purchase-money. It is for the interest of the vendor to receive it, and of incon- venience to no one that the law forbids the agent to receive it.^ But in the sale of a ship, sold by the master in a case of necessity, the circumstances of his situation generally in- volve an authority to receive the proceeds, as a necessary incident to his authority to sell. And the authority to re- ceive the proceeds implies the right to order payment of them, in good faith, to such persons as the master may de- signate.^ 1 Schooner Tilton, 5 Mason, 275. See Bryant v. Com. Ins. Co. 6 Pick. 131, as to a sale by master in a case of shipwreck. 2 Mynn v. Joliffe, 1 M. & Rob. 326, 3 Ireland v. Thomson, 56 Eng. Com. Law Rep. Man. Gran. & Scott. CH. III. J OF THE TITLE TO MERCHANT SHIPS. 121 Of Title, by Capture and Condemnation. <§> 158. The ships of an enemy and the ships of a neutral engaged in transactions not permitted by the law of nations to the neutral character, such as violation of blockade, trad- ing in contraband and interposition in the war, are subject to the right of capture.^ The property in a prize belongs originally to the sovereign of the captor. His grant alone vests it in others. When the capture is made by a public armed ship of a belligerent power, the condemnation is to the government. But the proceeds, by the general usage of nations, are distributed among the captors.^ The courts of a belligerent sovereign may be empowered to condemn di- rectly to the captors. Thus by the act of 26th June, 1812, in cases of privateers duly commissioned for the capture, condemnation is to the owners, officers, and crew of the pri- vateer. <§) 159. It was formerly held, that as between enemies when the spes recuperafidi was gone, and the captors had actual possession of the prize, or when they had brought it i?7fra prcBsidia, or when they had had firm possession for twenty- four hours, the capture was complete and the title passed. ^ It has been supposed, too, that when the captured ship origi- nally belonged to a neutral, condemnation was necessary to change the property ; but otherwise if she were an enemy ship. All these standards of title, however, are now disre- garded, and by the general practice of the law of nations, a 1 2 Wildman's International Law, 92. 2 Vide Act of Congress, April 23, 1800. 3 March, 110 ; Valtel, b. 3, c. 13 ; Bynkershoek, 2. J. Pub. 1, c. 485 ; Marten's Summary, b. 8, c. 3, sec. II. There is no uniform rule among na- tions as to the time when property vests in captors. Nations concur in prin- ciple, indeed, so far as to require firm and secure possession ; but their rules of evidence respecting the possession are not uniform. The Santa Cruz, 1 Rob. 50. MAR. 1 1 122 MARITIME LAW. [CH. III. sentence of condemnation is at present deemed generally necessary, and a neutral purchaser during war looks to the legal sentence of condemnation as one of the title-deeds of a ship, if he buys a prize vessel.^ The fact, whether the vessel is liable to capture or not, must be judicially inquired into and decided, and therefore the property is not changed until sentence of condemnation has passed, and the prac- tice of nations requires that the vessel shall be in a place of safety before such sentence can be rendered.^ If, however, a sale be made by the captors before condemnation, the title is affirmed by a subsequent sentence of condemnation, so as to make it good ab initio. The condemnation relates back to the capture, and affirms its legality.^ "§> 160. A sentence of condemnation to be effectual or binding, must be passed by a court of competent jurisdiction. It must be a court of the nation to which the captor belongs and from which his commission issues. It was said by the Supreme Court of the United States in the case of The Estrella, that a neutral nation which knows its duty will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the me- dium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law, which may arise in the progress of such discussion.* A legitimate court in the country of the cap- tor may legally condemn a prize carried into the port of a neutral. This principle was formerly supposed to be in vio- lation of the law of nations, and Lord Stowell in the case of the Herstelder, said that he would not condemn a vessel ly- ing in a neutral port.^ But in subsequent cases, considering ' Lord Stowell, 1 Rob. A. R. 139 ; Hudson v. Guestier, 4 Cranch, 293 ; Wheelwright v. Depeyster, 1 John. 471. 2 Hudson V. Guerter, 4 Cranch, 295. 3 Williams v. Amroyd, 7 Cranch, 433 ; Abbott on Shipping, p. 31, note; 2 Wash. Rep. 508. 4 4 Wheat. Rep. 497. 5 1 Rob. 113. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 123 himself bound by the practice of the High Court of Admi- ralty, and the usage of nations, he held, that a ship brought into a neutral port might with eflfect be proceeded against in the courts of the belligerent country.^ The courts of our country do not deem it material whether the possession of the captured property is within the dominion of the captor or of a neutral. Seizure and safe possession is all that is necessary to give jurisdiction. ^ «§, 161. The court adjudging prize causes must be in the country of the belligerent captor. This doctrine stands on the admitted usage of nations. Hence the sentence of a court of admiralty, sitting under a commission from a bel- ligerent power, in a neutral country, is wholly invalid.^ Neu- tral ports are not intended to be auxiliary to the operations of the parties at war, and the law of nations has very wisely ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. All such assumed authorities are unlawful, and their acts void.^ No foreign power can of right institute or erect any court of judicature of any kind, within the jurisdiction of another power, but such only as may be warranted by and in pursuance of trea- ties.-^ The evils arising from permitting a belligerent to pro- nounce sentence of condemnation in the country of a neu- tral, are forcibly stated by Lord Stowell in the case of the Flad-Oyen.6 Here, he observes, a person utterly destitute of all authority, except over the subjects of his own coun- try, (the sentence of condemnation was passed by the French Consul residing at Bergen, in Norway, a neutral country,) and » Comet, 5 Rob. 285 ; Ed. A. R. 97 ; Henrique and Maria, 4 Rob. 35. 2 Hudson V. Guestier, 6 Cranch, 281; Cheriot v. FoussaU, 3 Binn. 220; The Arabella and Madeira, 2 Gall. 308 ; 7 Wheat. 323. 3 The Flad-Oyen, Martinson, 1 Rob. 135; The Kierlighett, 3 Rob. 96; Donaldson v. Thompson, 1 Camp. 428; Havelock v. Rockwood, 8 Term, 268. 4 Wheelwrights. Dcpeyster, 1 John. 471, Kent, C.J. 5 The Mary Ford, 3 Dall. 0, Jay, C. J. 6 1 Rob. 135. 124 MARITIME LAW. [CH. III. possessing that only by the indulgence of the country in which he resides, pretends to exercise a jurisdiction in a matter in which the subjects of many other states may be concerned. No such authority was ever conceded by a country to a fo- reign agent of any description residing within it, and least of all could such an authority be conceded in the matter of prize, a matter over which a neutral country has no cognizance what- ever, except in the single case of an infringement of its own territory. Consider the consequences which must follow from allowing the validity of this condemnation ; it would have the effect of making every port of every neutral nation a port of condemnation. This must give a reasonable jeal- ousy to belligerent powers, and would serve at length to embroil every neutral nation. If France can station a judge of the admiralty at Bergen, and can station there its cruisers to carry in prizes for that judge to condemn, who can deny that, to every purpose of hostile mischief against the com- merce of England, Bergen will become an enemy's port? To make the ports of Norway the seats of the French tribu- nals of war, is to make the adjacent sea the theatre of French hostility. It gives one belligerent the unfair advantage of a new station of war, which does not properly belong to him, and it gives to the other the unfair disadvantage of one ac- tive enemy in a quarter where no enemy would naturally be found. The coast of Norway could no longer be approached by the British merchant with safety, and a suspension of commerce would be followed by a suspension of amity. Wisely therefore did the American government defeat a simi- lar attempt made at an earlier period of this war. <§> 162. In Smith v. Surridge,i Lord Kenyon observed, that the sentence of a French court, in a country out of the juris- diction of France, had been wisely held not to change the property ; but when it had been acquiesced in in that coimtry, it miffht make a difference, and from the time of the sale I 4 Esp. N. P. Cas. 26. CH. in.] OF THE TITLE TO MERCHANT SHIPS. 125 under such a decree, the property was regularly brought down to the plaintiff. But this doctrine is contrary not only to the case of the Flad-Oyen, and other decisions of Sir William Scott, but is inconsistent with the position assumed by Lord Kenyon himself, in Havelock v. Rockwood,i where the foreign sentence which was rejected was made with the knowledge of the neutral power, which received duties on the condemnation and the sale in consequence of it.^ The acquiescence of a neutral country in a sentence of condem- nation pronounced by an agent of a belligerent, residing within such neutral country, does not affect the question at all, because in the matter of prize the neutral country has no cognizance whatever. Its concession of authority to one of the belligerent parties, to pronounce, by its agent in the neutral country, sentence of condemnation, is of no effect because it is an authority that it cannot concede. '^ <§, 163. A belligerent cannot, by a court sitting under its commission in a country in which the forms of an independ- ent, neutral government are preserved, pass a valid sentence of condemnation, although the belligerent may have such a body of troops stationed there, as in reality to possess the sovereign authority. While a government subsists, courts cannot look to the degree in which it might be overawed by a foreign force. When the fact is ascertained that the sen- tence was pronounced by a belligerent on neutral territory, it is their duty to declare it void.^ <§. 164. A belligerent may institute a court of admiralty in the country of a co-belligerent or ally, and a sentence of condemnation passed by such court is valid and binding upon all parties. There is a common interest between the 1 8 T. R. 276. 2 1 Camp. Cas. p. 433, note to Donaldson v. Thompson. 3 Flad-Oyen, 1 Rob. 135. 4 1 Camp. Cas. 430 ; Donaldson v. Thompson. 11* 12'c3 MARITIME LAW. [CH. in. belligerent and his ally on the subject, and both governments are presumed to authorize any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient.^ The allied state, or co-belligerent, is considered as forming one community with the captors.^ But the prize court of an ally cannot condemn, <§> 165. We have elsewhere observed, that a sentence of condemnation by a court of competent jurisdiction was ne- cessary to change the property in a prize. But immediately on the capture, the captors acquire such a right as no neutral nation can justly impugn or destroy. Hence, if the captured property should be abandoned from necessity at sea, upon a libel of salvage by neutrals in a neutral court, the value of the property after deducting the salvage, must be decreed to the captors. That is to say, the right of the original owners is not revived by the abandonment. The principle upon which this doctrine rests is, that the abandonment if not done by choice, but from necessity, leaves the right unim- paired, and the vessel being brought into port by a friend, ought to be restored on paying a reasonable salvage. -^ <§> 166. The courts of a neutral nation cannot inquire into the validity of any capture made by belligerents, whether the property be belligerent or neutral, unless such capture be made in violation of its own neutrality. They are bound to consider the fact of possession as conclusive evidence of the right.* But if the capture be made within the territorial limits of a neutral country into which the prize is brought, 1 The Flad-Oyen, 1 Rob. 135 ; Oddy v. Bovill, 2 East, 471 ; The Har- mony, 2 Rob. 210 ; The Christopher Slyboom, 2 Rob. 209. 2 Abbott on Shipping, p. 33. 3 The Mary Ford, 3 Dall. 198; De Jure Maritime, 82. 4 Glass V. The Sloop Betsey, 3 Dall. 6 ; United States v. Peters, 3 Dall. 121 ; L'Invincible, 1 Wheat. 238 ; The Alerta, 9 Cranch, 359 ; The Estrella, 4 Wheat. 298 ; The Divina Pastora, 4 Wheat. 52 ; The Josefa Segunda, 5 Wheat. 338 ; Abbott on Shipping, p. 31, note. CH. III.] OF THE TITLE TO MERCHANT SHIPS. 127 or by a privateer which had been illegally equipped in such neutral country, the prize courts of such neutral country not only possess the power, but it is their duty, to restore the property, so illegally captured, to the owner. This is neces- sary to the vindication of their own neutrality. A neutral nation may, if so disposed, without a breach of her neutral character, grant permission to both belligerents to equip theij vessels of war within her territory. But without such per- mission the subjects of such belligerent powers have no right to equip vessels of war, or to increase or augment their force either with arms or men, within the territory of such neutral nation. Such unauthorized acts violate her sovereignty and her rights as a neutral. All captures made by means of such equipments are illegal in relation to such nation, and it is competent to her courts to punish the offenders, and, in case the prizes taken by her are brought infra prcBsidia, to order them to be restored. ^ <§. 167. The sentence of a court of competent jurisdiction in rem is conclusive upon the title to the property condemned, and equally conclusive as to the facts on which the sentence professes to be founded.^ The Supreme Court of the United States, in The Mary, said that the reason why the whole world are ordinarily bound by the decree of a court of admi- ralty in rem, is, that every person having any interest in it may make himself a party and appeal from the decree. But notice of the controversy is necessary in order to become a party ; and it is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. Where these pro- ceedings are against the person, notice is served personally 1 The Alerta, 9 Cranch, 359, Wasliington, J. ~ Bradstreet v. Neptune Ins. Co. 3 Sumner, 600 ; Croudson v. Leonard, 4 Cranch, Ft. 434 ; Rose v. Ilimely, 4 Cranch, R. 241 ; Hudson u. Gueslier, 4 Id. 281 ; The Mary, 9 Id. 120, 142 ; Gelston v. Iioyt,3 Wheat. 240. 128 MARITIME LAW. [CH. III. or by publication ; wiiere they are in 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 pru- dence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it.^ If it does not appear upon the face of the record of proceedings 'ill rem, that some specific offence is charged for which the forfeiture m rem is sought, and that due notice of the pro- ceedings has been given, either personally, or by some public proclamation, or by some notification or monition, acting in r^m, or attaching to the thing, so that the parties in interest may appear and make defence, and in point of fact the sentence of condemnation has passed upon ex parte statements with- out their appearance, it is not a judicial sentence, conclusive upon the rights of foreigners, or to be treated in the tribunals of foreign nations, as importing verity in its statements or proofs.^ <§, 168. A sentence of condemnation by a foreign court, pronounced in rem, is held valid upon the presumption that the jurisdiction exercised is lawful. But that presumption may be overturned by competent evidence. Hence, if the court pronouncing the decree had no jurisdiction over the cause, if the property condemned was neither positively or constructively in its possession, nor submitted to its jurisdic- tion, then its adjudication will be disregarded. The juris- diction must be exercised in consistency with the law of nations, or the sentence is a nullity. And every court called to adjudicate upon a claim set up under a sentence of condemnation of a foreign court, may examine into the jurisdiction of such foreign court, to ascertain if it were competent to pronounce the sentence.^ We have already 1 The Mary, 9 Cranch, R. 126, 142, Marshall, C. J. 2 Bradstreet v. Neptune Ins. Co. 608, Story, J. 3 Rose V. Himely, 4 Cranch, 241 ; Hudson v. Guestier, 4 Cranch, 293 ; Wheelwright v. Depeyster, 1 John. R. 471 ; Amroyd v. Williams, 7 Cranch, CH. III.] OF THE TITLE TO MERCHANT SHIPS. 129 seen ^ that the condemnation of a prize by a consul of a belligerent in a neutral country is deemed invalid, because such jurisdiction cannot, consistently with the law of nations, be exercised. And the same result would follow, if a court of prize should condemn, or profess to condemn, a vessel which had never been captured at all, or if captured, after- wards rescued, or recaptured, or voluntarily discharged, so that she was no longer under the dominion or possession of the captors.2 <§. 169. Courts of prize acting «w rem, as they are courts sitting under the law of nations, the courts of other nations are competent of themselves to inquire into and ascertain whether there has been any excess of jurisdiction or not, without any resort to the laws of the particular country, where the tribunal is established. But in respect to munici- pal courts acting in rem, but deriving their authority solely from the territorial laws of the sovereign, they are and must, from the nature of the case, be presumed to be the best judges of the nature and extent of their own jurisdiction, and of its just and legitimate exercise. Their judgment, there- fore, affirming that jurisdiction must ordinarily be conclusive upon all foreign tribunals, subject, however, to this reserve, that the res is either within the territory, or is positively or* constructively in the possession of the sovereign or his officers, so that the jurisdiction can, according to the law of nations, rightfully attach in such tribunals. No foreign court can be permitted to sit as a court of errors to revise the decisions of municipal courts in the exercise of the jurisdic- tion conferred on them by the municipal laws. That would be to assume the final interpretation of those laws. But this doctrine must be understood with its proper limitations, that 423 ; Peters v. Warren Ina. Co. 3 Sumner, 389 ; Bradstreet i'. Ncpluno Ins. Co. 3 Id. GOO; Cheriot v. Foussatt, 3 Binn. 220 ; AbboU on Shipping, p. 32, note, and authorities there cited. 1 Ante, sect. 67. 2 Bradstreet u. Neptune Ins. Co. 3 Sumner, COO. 130 MARITIME LAW. [CH. III. the tribunal is recognized by the sovereign of the country as competent to act in the premises, which competency may be conchisively established from the express recognition of the sovereign, or his silent acquiescence in its decrees.^ The objection, then, to the jurisdiction of a foreign court sitting in rem, may be inquired into not only as to the subject-matter, but also as to the authority from which it has emanated, and if the jurisdiction be unauthorized from either cause, it is a decisive objection to the sentence.^ But when the jurisdic- tion is established, the sentence in rem is conclusive with respect to the thing itself, and operates as an absolute change of the property. By such sentence the right of the former owner is lost, and a complete title given to the person who claims under the decree. No court of coordinate jurisdiction can examine the sentence. The question, therefore, respect- ing its conformity to general or municipal law, can never arise ; for no coordinate tribunal is capable of making the inquiry.^ <§» 170. Upon this cursory examination of the subject, it will be seen that the title to vessels subject to the right of capture, and actually captured and brought, either actually or constructively within the territory of the sovereign of the • captors, so that the jurisdiction of his tribunals can rightfully attach, and are there legally condemned, is changed. 1 Bradstreet v. Neptune Ins. Co. 3 Sumner, 606, Story, J. 2 Abbott on Shipping, p. 32, note. 3 Williams v. Amroyd, 7 Cranch, 432. CH. IV.] CONTEACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 131 CHAPTER IV. CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. «§> 171. A CHARTER-PARTY, (the cliarta-partUa of the civil law,) answered originally to an indenture at common law, which has now become practically obsolete. It was for- merly written on one piece of parchment, and to prevent the substitution of a fictitious for the genuine agreement, the two parts were divided in such a manner, that their original correspondence could not be mistaken. The contract of affreightment, by charter-party, is the agreement by which an entire ship or some principal part thereof, is let to a mer- chant for the conveyance of goods on a determined voyage. ^ *§. 172. The admiralty has jurisdiction over maritime con- tracts, such as the contract of affreightment by charter-party .^ 1 Abbott on Shipping, p. 315 ; Molloy, 2, 4, 4. ~ The extent of the admiralty jurisdiction of the Federal Courts has been very severely canvassed in this country. The celebrated judgment, how- ever, of De Lovio v. Boit, 2 Gallis. 399, pronounced at an early day, although it did not close the avenues to controversy, went very far to relieve the doubts of the profession. It was established in that case, by Mr. Justice Story, from a historical review of the admiralty jurisdiction, that in the reign of Edward III. the admiralty exercised jurisdiction, 1. Over matters of prize and its incidents. 2. Over torts, injuries, and ofTences, in ports within the ebb and flow of the tide, on the British seas and on the high seas. 3. Over contracts and other matters, regulated and provided for by the laws of Oleron and other special ordinances; and, 4. Over maritime causes in general. Such was the ancient, original, and rightful jurisdiction of the admi- ralty. That jurisdiction was subsequently defined by the statutes of 13 and 15 Richard II. The former statute enacts, " that the admirals and their depu- ties shall not meddle henceforth of any thing done within the realm, but only of a thing done upon the sea, according as it hath been duly used in the time of the noble King Edward, (3) grandfather of our lord the King, that 132 MARITIME LAAV. [CH. IV. But it has no jurisdiction over preliminary agreements to execute a charter-party, or such contracts as lead to maritime contracts. But where a preliminary agreement contains the now is." The latter statute enacts, " that of all manner of contracts, pleas, quereles, and of all other things done or arising within the bodies of counties as well by land as by water, and also of wreck of the sea, the admiral's court shall have no manner of cognizance, power, nor jurisdiction." Mr. Justice Story contends that these statutes were not intended to abridge any part of the original, rightful jurisdiction of the admiralty, but only to check its usurpations over contracts made at land, unconnected with maritime busi- ness. That they still left to the admiralty cognizance of all maritime con- tracts, and all torts, injuries, and offences, upon the high sea and in ports as far as the tide ebbs and flows, and that the common-law interpretation of them, which confines the admiralty jurisdiction to things wholly and exclu- sively done upon the sea, is indefensible upon principle, and that the de- cisions founded upon it are inconsistent and contradictory. He also contends, that whatever may be the binding authority of the common-law decisions in England, we are at liberty to reexamine the doctrines and to construe the jurisdiction of the admiralty upon enlarged and liberal principles. To the argument, that the clause in ihe Constitution of the United States which confers upon the judicial power cognizance "of all cases of admiralty and maritime jurisdiction," must be so construed as to limit the jurisdiction in these cases to the jurisdiction which the admiralty exercised in England at the time of the American Revolution, he replies, that such a construction would enlarge and limit the jurisdiction by the provisions of statutes, enacted for the government and regulation of the High Court of Admiralty, and which, propria vigore, did not extend to ihe colonies. Besides, it would in- volve qualifications of the jurisdiction, which are perfectly arbitrary in them- selves, inapplicable to our situation, and contradictory to the commissions and practice of the vice-admiralty colonial courts. But even if this exposition were to be adopted, are we to be governed by the doctrines of the common law, or the admiralty 1 There is no superior sanctity in the decisions at common law, upon the jurisdiction of other courts, which entitles them to outweigh the very able and learned decisions of the great civilians of the admiralty. Upon an independent view of the clause of the constitution which gives to the judicial power cognizance of " all cases of admiralty and maritime jurisdiction," he contends that the word " maritime " was added, seemingly ex industria to remove every latent doubt, and that " cases of maritime jurisdiction " must include all maritime contracts, torts, and inju- ries which are in the understanding of the common law, as well as of the admiralty, " causes civiles et maritirrKe.'^ The disputes and discussions, respect- ing what the admiralty jurisdiction was, could not but be well known to the framers of the constitution. One party sought to limit it by locality, another by the subject-matter. It was wise, therefore, to dissipate all question, by CH. IV.] COXTRACT OF AFFllEIGHTMEXT, BY ClURTER-PARTY. 133 substantial provisions of a charter-party, it may be treated as such, ahhough the parties contemplate and agree to execute giving cognizance of all "cases of maritime jurisdiction," or, what is pre cisely equivalent, of all maritime cases. Upon any other construction, the word " maritime '' would be mere tautology ; but in this sense it has a pe- culiar and appropriate force. In the case of the Schooner Volunteer, jNIr. Justice Story alluded to his judgment in the case of De Lovio v. Boit, as follows : " It is now approach- ing nearly to twenty years since I had occasion to consider with laborious care and attention, the nature and extent of the jurisdiction of the admiralty over maritime contracts. The conclusion to which my mind then arrived, was, that the admiralty had an original, ancient, and rightful jurisdiction over all maritime contracts, strictly so called, (that is, such contracts as respect business, trade, and navigation, to, on, and over the high seas,) which it might exert by a proceeding in rem, in all cases, where the maritime law established a lien or other right in rem, and by a proceeding in personam, where no such lien or other right in rem existed. The courts of common law, it is true, had on various occasions denied, opposed, and sought to re- strict this jurisdiction. But their decisions have been founded in no uniform principles or reasoning, and have been, if it may be so said without irreve- rence, more the offspring of narrow prejudice, illiberal jealousy, and im- perfect knowledge of the subject, than of any clear and well-considered principles. These decisions have fluctuated in opposite directions at differ- ent periods, and the final results, unfavorable to the admiralty, have been in a great measure owing to a deference for the learning of Lord Coke, whose hostility to the admiralty, not to speak of his disingenuousness, entitle him to very little respect in such a discussion. At all events, the contradictory nature of these decisions, and the state of the law on tlie subject at the time of the emigration of our ancestors, as well as the structure and jurisdiction of the vice-admiralty courts under their commissions, on that occasion seemed to me to require, that the jurisdiction of the admiralty in America should be reexamined, and established upon its true principles, and maintained upon its just, original foundations. If, since that period, I had found reason in any subsequent researches to change those opinions, I should not hesitate on the present occasion to avow and correct errors; for the advancement of juridi- cal truth is, and ever ought to be, far more important to every judge, than any narrow adhesion to his own preconceived and ill-founded judgments. But I am free to confess, that after every thing which I have heard and seen in the intermediate period, whether in tiic shape of appeals to popular preju- dices, or of learned and liberal arguments, or of severe and confidi'iit crit- icism, I have been unable to change these opinions. They remain with me unshaken and unrefuted." See also upon the jurisdiction of the admiralty over "maritime contracts. Freiirhtand Cargo of The Spartan, Ware's R. Hi) ; The Rebecca, Id. 168; The rhcbc. Id. 1203; Kent's Com. (3d ed.) 2,'0. MAR. 12 134 MARITIME LAW. [CH. IV. thereafter a more formal instrument. ^ Thus in the case of the Schooner Tribune, ^ the following memorandum of con- tract, was held to amount to a present charter-party. " I hereby agree, within three days, to be ready at Hampden, with a new suit of sails on the Tribune, to load for T. W. Letson, (the libellant,) and proceed without delay to Lubec, to take in what may be wanted to constitute her cargo, and proceed to Havana, and back to ahy port of the United States ; also, that the charter-party shall not cotnmence until she is loaded at Lubec, provided I am not detained over seven days in loading said vessel." Then follows the date and the signature of the master, who enters into the contract.^ On the same paper, immediately below the foregoing memoran- dum, is the following, signed by T. W. Letson : " I agree to allow said vessel, on said charter-party, five hundred Span- ish dollars per month. The charter to be made at Lubec." The ground of decision in this case was the same as in Warman v. Faithful,^ where it was established, that an agree- ment for a lease for a definite period for a fixed rent, amount- ed to a present demise, notwithstanding a more formal instru- ment was to be executed. « <§> 173. It is the usual practice to reduce the charter-party to writing. The Ordinance de Marine, as well as the modern code of France, require it to be done. " All articles for freighting of ships," says the old code, " shall be reduced into writing, and agreed to by the merchants that freight, and the master or owners of the ships freighted."^ Valin,in his commentary on this article, holds, notwithstanding the ex- 1 Sumner's R. 144 ; The Schooner Tribune. 2 Ibid. 3 It was held in this case, that the master of the Tribune, although in the home port, from the particular circumstances of the case, such as his taking the vessel on shares, was competent to make a charter-party. Besides it was said, that there was an adoption of the contract by one of the owners, upon a full knowledge of the proceedings of the master. 4 5 Barn, and Adol. 1052. ■5 Sect. xxvi. art. i. Code de Comtnerce, art. 373. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 135 press requirement of a written instrument, that the contract, if by parol, would be equally valid and binding. In our law there is nothing that makes a charter-party by deed or writing, essential evidence of the contract. A ship may be hired by a parol charter for a voyage, or for a time certam.^ <§> 174. The master of a ship has, under his general author- ity, a right to charter tlie ship in a foreign country, if his owner has no agent there.- In the absence of a special agent, he becomes virtute officii agent of the owners, and empowered as such, to let the ship by charter-party. He cannot, however, by a contract of that nature, take the ship out of her usual employment. He cannot take her, for in- stance, from the coasting trade, and let her for a foreign voyage.'^ It belongs to the incidental authority of the master to make all contracts that relate to the ordinary employment of the ship.'' But it is not an incident to his general author- ' ity to make a contract by charter-party in the home port, nor can it be presumed, ordinarily, from his character as master.^ The owner is not bound by such a contract, without his assent is made to appear. This may be shown from various • circumstances, such, for instance, as knowledge of the con- tract on his part, followed by no act of repudiation or dis- sent, or perhaps from having authorized the master to make such contracts in former voyages. <5. 175. There are certain technical rules of the common law, with respect to contracts under seal, which may not be out of place in a work of this nature, and which certainly are deserving of consideration. In the first place, then, it is 1 Taggard t;. Loring, 16 Mass. 33G ; Muggridge v. Eveleth, 8 Law Rep. 21 ; The'Phebe, Ware's R. 2G3 ; 3 Kent's Com. 203. 2 Hurry v. Hurry, 2 Wash. C. C. R. H5. 3 Ward V. Green, 6 Cowen, 173. 4 Story on Agency,^ 110,^ 121; Gcrnon v. Cochran, IJcc's Ad.n. R. 209. 5 Schooner Tribune, 3 Sumner, MO. 136 MARITIME LAW. [CH. IV. well settled, that the master has no power, merely in his character of master, without a superadded agency, to bind the owners by a charter-party under his hand and seal, so as to subject them to an action of covenant thereon. A deed, under seal, must be executed by the party himself, or by another for him, in his presence and with his direction, or in his absence by an agent authorized so to do by another deed.i And as the master has no authority virtute officii to execute a charter-party under seal, a subsequent parol ratifi- cation of his act by the owner is no more availing than a parol authority previously given, and that is clearly insuffi- cient. <§, 176. When the master, in circumstances that authorize his making a charter-party by deed, proceeds, as agent of the owners, to execute sach an instrument, it must appear from the face of it in what character he acts. When any one has authority, as attorney, to do any act, he must do it in the name of him who gives the authority and as his act, other- wise he binds himself and not the principal.^ If the deed is actually made in the name of the principal, and purports upon its face to be his deed, and not the deed of the agent or at- torney, no particular form of words is necessary in the exe- cution of it.3 It was said, in the case of Mears v. Morrison,'' that the usual and appropriate mode of signing a deed by an agent or attorney is, to sign his principal's name and then his own. In that case the agent signed and sealed the in- strument simply as " C. D., agent," without naming his principal, and it was held that the agent alone was bound. It is, however, indifi"erent, whether the agent signs his own name first or the principal 's.^ And where the master entered into a charter-party, describing himself therein as " agent 1 Abbott on Shipping, p. 317 ; Pickering v. Holt, 6 Greenleaf, 160. 2 Combe's Case, 9 Coke, 75. 3 Evans v. Wells, 22 Wend. 324 ; Magill v. Hinsdale, 6 Com. 464. 4 1 Breese, 172. 5 Campbell u. Barker, 2 Watts, 83. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 137 for and in behalf of the owners " of the ship, and as " agent aforesaid," but without naming the owners, and the parties, in a subsequent clause, bound themselves personally for the performance of the covenants of the charter-party, and the master then signed and sealed the instrument, without any addition, he alone was held responsible for his covenants. He did not name his owners as parties, nor indeed at all, nor did he sign as agent or attorney, but in his own name.^ <§> 177. An instrument not under seal, is not altogether governed by the principle that was established in Combe's case,2 and recognized in the modern decisions, namely, that an agent binds himself and not his principal, unless he uses the name, and acts in the name of, the principal. If it can be collected from the import of a simple contract, that the agent intends to bind his principal and not himself, that is, if it appears from the instrument that the party acted as agent, it is sufficient. It is not essential that he should sign his principal's name.^ That is only necessary in deeds. It was said, in the case of Evans v. Wells,^ that the rule appli- cable to simple contracts might, perhaps, be applied to sealed instruments, whenever the seal is not absolutely essential to their legal efficacy. <§> 178. An action on the 'case will not lie, where the plain- tiff depends upon a deed to prove the contract on which he relies. Hence, where two of several owners of a vessel ex- ecute a charter-party under their seals, for themselves and the other owners, the two only are liable to the hirer upon the covenants contained in the charter-party. The deed, which is essential to the hirer's title in any action, establishes a right against two only of the owners.*^ Where the action is 1 Meyer v. IJarlcer, Binn.228. 2 9 Coke, 75. 3 Andrews v. Estes, 2 Fairf. 207. 4 22 Wend. 321. ^ Kimball v. Tucker, 10 Mass. I'Jl ; Banorgce v. llovcy, 5 Id. II. 12* 138 MARITIME LAW. [CH. IV. on the covenant contained in a charter-party, it is competent to the defendant to give evidence that, at the time of the agreement, the plaintiff made representations as to the capa- city of the vessel which were false and fraudulent, in mitiga- tion or satisfaction of the plaintiff's demand.^ Fraud is a good defence to such an action, and will be an answer to the whole demand, or in abatement of the damages, according to the circumstances of the case.^ And this, not because the defendant has any right to damages by virtue of any breach of contract, which was by parol and anterior to the charter- party, but simply on the ground that he was deceived by the false representations as to the capacity of the vessel.^ <§> 179. After an agreement has been reduced into writing, a charter-party for instance, it is competent to the parties, at any time before breach of it, by a new contract not in writ- ing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make anew con- tract, which is to be proved, partly by the written agreement and partly by the subsequent verbal terms ingrafted upon what will be thus left of the written agreement.-^ The alteration, however, of the written contract by parol, makes it all parol. ^ " It is certainly more reasonable," said Gib- son, C. J., in the case of Vicary v. Moore,^ " that the parol part, being the more recent expression of the intention, should draw to its nature the retained stipulations -of the old con- tract, than that the latter should draw to them the parol stipulations, which are incapable of assimilation to a spe- cialty." Hence, where a new agreement is substituted for the agreement contained in a charter-party under seal, (such 1 Johnson v. Miln, 14 Wend. 195. 2 Beeker v. Vrowman, 13 Johns. 302. 3 Johnson v. Miln, 14 Wend. 195. 4 Goss V. Lord Nugent, 5 B. & Adol. 65, Lord Denman. 5 Vicary v. Moore, 2 Watts, R. 457. 6 Ibid. CH. IV.] COXTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 139 substituted agreement arising from the alteration of the old one.) the remedy of the owner is upon such substituted agreement. He cannot maintain covenant upon the old con- tract, which is merged in tlie parol agreement, and its generic character lost.^ <§> 180. A parol agreement to rescind a sealed contract is not binding as an executory agreement, but valid and bind- ing when carried into effect. ^ After breach of a sealed con- tract, a right of action may be released or waived by a new parol contract.^ The rules respecting the execution and dis- charge of a sealed instrument are technical, and in most cases arbitrary ; but nevertheless they are adhered to by the courts of common law, and determine the rights of the par- ties. Hence it is important in transactions relating to a charter-party by deed, to observe carefully the legal formal i- ties necessary to their validity. It might perhaps be difficult to assign any satisfactory reason for the rule of the common law, that the performance of a charter-party under seal can- not be released or waived by parol, or by a written instru- ment not under seal, a rule that totally disregards the more recent expression of the will and wishes of the parties, simply because that will and those wishes are not evidenced by a wafer or a piece of wax. But so it is, and in the business of life it is more important to know what the law is, and to observe it, than to search out the reasons upon which it may profess to be founded. <§. 181. A charter-party contains the names of the parties, the name and usually the burden of the vessel, the place and 1 Liicianu v. Am. Fire Ins. Co. 2 Wheat. Ifl7 ; Baird v. Blairgrove, 1 Wash. 170 ; Mead v. DcGolger, 16 Wend. 532 ; Cox v. Bennett, 1 Green- leaf's R. 165. 2 Dearborn v. Cross, 7 Cowen, 48 ; La Fevre v. Same, 2 S. & 11. 241 ; Munroe v. Perkins, 9 Piclc. 300; Delacroix v. Bulkley, 13 Wend. 75. 3 Delacroix v. Bulkley, 13 Wend. 75 ; Suydam v. Jones, 10 Wend. 180 ; Barnard v. Burling, 11 Wend. 27 ; ]Iusi)roucl; v. Tappen, 15 Johns. 200. 140 MARITIME LAW. [CH. IV. time of the lading and unlading, the sum to be paid for freight, the time the vessel is to stay at the respective ports, stipulations as to seaworthiness, demurrage, &c. When the vessel is chartered without any limitation as to time, it is an absolute and indefeasible hiring for every voyage which she shall have undertaken until notice is given by the owner of his intention to put an end to the contract. The contract is determinable at the will of the owner of the vessel, but he can- not rescind it while the vessel is actually employed in business pursuant to the contract.^ The charterer, unless restrained by an express clause in the charter-party, may underlet the vessel. If the burden be expressed and falls short, the ship being freighted by the ton, payment can be recovered, says Molloy, only for the real burden. ^ But if the owner, in good faith, makes a representation to the charterer as to the capacity of the vessel, which turns out to be untrue, it would seem that the charterer, if the ship is freighted for a gross sum and not by the ton, can claim no abatement of the stipu- lated price. We have seen that where a vessel was sold as of a certain capacity, and it appeared that she was of less capacity, the discrepancy, in the absence of fraud, did not afford a ground of action.^ And a fortiori, the doctrine is applicable to the hiring of a vessel. Where the burden of the vessel is not expressed, but there were false verbal state- ments as to her capacity, anterior to the contract, or at the time of making it, these may be given in evidence to re- duce the payment.^ In the case of Hunter v. Pry,^ it ap- peared that the ship was described in the charter-party as of the burden of two hundred and sixty-one tons or thereabouts, and that the freighter covenanted to load a full and complete cargo. The burden of the ship, thus expressed, there being no evidence of fraud, was held not to conclude the parties, 1 Cutler V. Winsor, 6 Pick. 335. 2 B. ii. c. 4, ^ 8 ; see also Roccus, 12, 73, 74, 75. 3 Dyer v. Lewis, 7 Mass. 284. 4 Johnson v. Miln, 14 Wend. 195. 5 2 B. & A. 421. CH. IT.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 141 and that the loading of goods equal in number of tons to the tonnage described in the charter-party, was not a per- formance of the covenant to furnish a full cargo, although it appeared that the ship was capable of carrying four hun- dred tons of goods of the description mentioned in the char- ter-party. It would, therefore, seem to be necessary, if it is deemed important, to definitely limit the operation of a charter-party, as to the capacity of a vessel, to introduce a suitable covenant to effect that purpose.^ "^ 182. Although it is usual in a charter-party for the owner to stipulate that the ship shall be kept tight, staunch, and strong during the voyage, he is still bound, in the absence of such stipulation, to see that she is in a suitable condition to transport her cargo in safety and to keep her in that condi- tion, unless prevented by perils of the sea or unavoidable accident. If the goods are lost by reason of any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter upon the principle that he tacitly contracts that his vessel shall be fit for the use for which he thus employs her.^ The charterer of a vessel is bound to victual and man her, without any express stipulation in the charter-party to that effect, unless it ap- pears from the instrument itself that a different arrangement was intended.'^ <§. 183. It is necessarily understood, where the owner contracts with the hirer, that the vessel shall be staunch, strong, suitably provided, &c., at the expense of the owner, that every defect of the vessel happening abroad, in the course of the voyage, is to be remedied by the care of the hirer and employer. The hirer, either on his own credit or the credit of the owner, and ultimately at his expense, must 1 Vide Abbott, p. 322. 2 Putnam v. Wood, :i Mass, 481 ; Ripley v. Scaif.', 7 D, & R. 810. 2 Goodridge v. Lord, 10 Mass. '18.3. 142 MARITIME LAW. [CH. IV. provide whatever is necessary to enable the vessel to con- tinue on the voyage, and employment for which the hirer has engaged her. If the vessel is sufficient at the commence- ment of the voyage, but be entirely lost in the course of it, the owner loses his freight-money, but nothing more, upon the contract of the charter-party. The charterer must not abandon the vessel so long as she can be kept afloat and suitably provided for the employment of the voyage, and the owner is responsible for all expenses and damages necessarily incurred for the purpose.^ *§> 184. In the case of Ripley v. Scaife,^ it appeared that a vessel was chartered for six months certain, the freighter stipulating to pay £200 per month, and so in proportion for any longer time she might be employed. The owner agreed to keep the ship in repair during the voyage. In conse- quence of the perils of the sea she was obliged to be re- paired twice in the course of the voyage, which detained her uselessly (o the freighter for thirty-eight days. Upon these facts it was held, that the charterer was liable to freight while the vessel was under repairs. The vessel was still considered as in his employment. "At the time of entering into the charter-party," said Abbott, C. J., "it might have been stipulated between the parties that the charterer should not be liable for freight in case of any detention in the voyage, in order to repair the vessel. No such stipulation having been introduced into this instrument, I am of opinion that the objection relied upon by the plaintiff is without foundation." <§> 185, It was also said, in Haverlock v. Geddes,^ that it was in the ordinary course of things, to expect a ship to need repairs in the course of her voyage ; and when the charterer 1 Kimball v. Tucker, 10 Mass. 192, Sewall, J. 2 7 D. & Ryland's Rep. 818, S. C. ; 5 B. & Cres. 167. 3 10 East, 555. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 143 makes his bargain, he should stipulate to deduct for the time which may be exhausted in making the repairs. Without such a stipulation, the true construction of the charter-party- is, that whilst repairs are going on the ship is to be con- sidered as in the charterer's service, and he is responsible for the freight. Nor is the charterer who hires a vessel at so much a ton per month, for a specified time, or for so long as he may continue her in his service, entitled to any deduction for the time the vessel may be detained in port by an embargo laid by the home government, or by a hostile seizure followed by a restoration. The charterer is bound by his contract. It was his own fault that he did not provide for these contingencies by an express averment. The owner is entitled to the stipulated compensation for the whole time the vessel is out of his possession, in pursuance of the terms of the charter-party, whether the voyage be long or short, and by whatever accident she may be delayed, provided the delay does not arise from his own default, and also that the charter-party, in the case of hostile seizure, is not dis- solved by a condemnation of the vessel as prize. ^ <§> 186. The usual covenant in a charter-party of affreight- ment, that the ship shall be made tight, staunch, and strong for the voyage, and kept so during its continuance, is not a condition precedent to the recovery of freight, if the char- terer actually takes possession of the ship and employs her in his service. When he assumes control of the vessel under the charter-party, he is no longer at liberty to insist that the making her complete was a strict condition precedent on the part of the owner. But if, in consequence of the owner's neglect to repair in the first instance, the charterer is pre- cluded from any use of the ship, it is a complete bar to an action for freight, because the consideration of the covenant to pay freight in such case wholly fails. If, however, there 1 SpafTord v. Dudge, 11 Mass. GG ; Minot v. Durant, 7 Id. 436. •«:■ 144 MARITIME LAW. [ClI. IV. be some use, notwithstanding the owner's neglect, then there is but a partial faikn-e, and the charterer is entitled to damages for the loss sustained by the default of the owner.^ <§, 187. No technical words are requisite to render a stipu- lation a condition precedent or subsequent, nor does it depend on the position of words, but it rests on the good sense and plain understanding of the contract and the acts to be per^ formed by the parties respectively. ^ There are but few cases in our reports, with respect to what are and what are not conditions precedent, in contracts of affreightment. These contracts, however, are construed liberally, and with a view to effectuate the real intention of the parties. This will be seen from the case of Barruso v. Madan.^ «§> 188. The parties entered into a copartnership agreement for the purpose of making four shipments to Buenos Ayres. The plaintiff, inter alia, covenanted to transfer to the part- nership all his powers under a Royal Spanish license, (which he had obtained,) and to send four American ships to Buenos Ayres, to be laden with licit goods to the amount of |15,000 for each vessel, and not above $25,000, by the plaintiff at the first cost. The funds and vessels were to be furnished by the defendant. The plaintiff also bound himself to make choice of the articles, or to send samples if necessary. The defend- ant ageed that within a month from the date of the contract, the first expedition should proceed from Boston, and the three others successively, with the interval of a month, and in case of default of sending the expedition in due time, the contract, as to that expedition, was to be void. <§> 189. In an action of covenant, the plaintiff alleged as 1 Havelock v. Geddes, 10 East, 555 ; Kimball v. Tucker, 10 Mass. 192. 2 Ibid. 3 2 Johns. Rep. 482. See also Hamilton v. Warfield, 2 Gill & Johns. 482. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-rARTY. 145 breaches, that the defendant did not furnish the vessel to be loaded at Boston, and that the first vessel did not sail from Boston within a month. The defendant pleaded, among other pleas, that the plaintiff did not select or choose goods necessary for the voyage, as he had covenanted to do. In support of this plea (on demurrer) it was contended that in the order of time, according to the contract, the plaintiff was to do the first act, that is, select the goods or furnish the samples. The defendant was not to make the purchase until the goods were designated. But the court held the plea bad, for the selection of the goods was not a condition precedent. Without a vessel to transport them, the selection of the goods would be nugatory. The defendant's act was first in order of time, and it was incumbent on him to have alleged that he had provided a vessel within the month, which could not proceed because the plaintiff had failed, in his part of the contract. The selection of the goods was not an act necessary to be done before the vessel was furnished, and was, therefore, an independent covenant. <^ 190. When a contract of affreightment has been entered into, the parties must be ready at the stipulated time, the owner with his ship, and the charterer with his cargo. If there is any failure on the part of either, the other is at liberty to seek another ship or another cargo, as the case may be. The nature of commercial transactions, the losses that may occur from delay, the necessity of despatch, renders punctuality and the rule of law that enforces it indispensable. <§» 191. When a ship is chartered for a voyage, (the general owner remaining owner for the voyage,) and she is rendered unseaworthy from accident whilst the charterer is lading her, it is the duty of the owner to repair and put her in readiness for the charterer's service in a reasonable time. What would be reasonable time in such a case, is a question of fact within the province of the jury.' If the ship be freighted for an 1 2 Bay. 492, S. C. ; 1 Brevard, 2G0. MAR. 13 146 MARITIME LAW. [CH. IV. entire lading, and the freighter does not furnish a full lading, the master has no right, without his consent, to take in other goods to complete the lading. The freighter is entitled to the full enjoyment of the ship, for he is answerable to the owner for the stipulated price, w^hether he puts on board a complete cargo or not. If, however, the master has not cargo enough to secure the freight, and the freighter is known or reasonably suspected to have become insolvent, no risk of damage will be incurred if he takes other goods to secure his freight. ^ ^ 192. In the case of Heckscher v. M'Crea,^ the Supreme Court of New York, whilst they admitted the principle, which indeed is undeniable, that a party who contracts to fill a specified space of so many tons measurement of a certain ship, and to pay a specified sum per ton as freight, and fails to ship the whole number of tons, subjects himself to an action for the deficient freight, proceeded further, and decided that the master is bound to take the goods of a third person, if offered, sufficient to make up the deficiency, although at a reduced rate of compensation, but still at the current prices ; and if he refuses to do so, what would have been the net proceeds arising from the carriage of such substituted cargo, must nevertheless be placed to the credit of the original charterer. The master, said the Court, is not to stand still or omit to engage in the general line of his business, and thus subject the charterer to the payment of the whole con- tract price. <§, 193. It was declared in Shannon v. Comstock,^ and repeated in this case, to be a general rule, that if a party entitled to the benefit of a contract can protect himself from a loss arising from a breach of it, at a reasonable expense, or 1 Abbott on Shipping, p. 325 ; 3 Kent, 204. 2 24 Wend. 304. 3 21 Wend. 457. CH. lY.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 147 with reasonable exertions, he fails in his social duty, if he omit to do so regardless of the increased amount of damages for which he may intend to hold the other contracting party liable. The principle upon which the court proceeded in this case, would seem to be directly opposed to the doctrine of the maritime law. For if it is the duty of the master to take other goods when a part of the ship is freighted, and the freighter only fills a part of the space, it is a fortiori his duty to do so, when the ship is freighted for an entire lading, and the freighter fails to furnish a full lading. And yet the party who freights a whole ship or a specified part of a ship may desire to have the exclusive use of the whole or the part which he has hired, and to take the loss upon himself. If the master is at liberty, nay, if it is his duty to take other goods that may be offered, the sale of the freighter's goods may be prejudiced thereby at the market for which he intended them, and thus the very object he might have had in view, when he contracted for a specific part of the ship, be de- feated.i <§) 194. In the case of Duffie v. Hayes,^ the ship was hired exclusively for the voyage, and to take in cargo at certain spe- cified rates. The freighter loaded her only in part, but he was held, in accordance with the general principle, to be liable not only for the cargo actually put on board, but for what the vessel could have taken had a full cargo been furnished. But if the merchant is not ready at the appointed time to load a cargo, or neglects or refuses to do so, we have already seen that the other party is then at liberty to seek another cargo, and has his remedy for damages.'^ Hence, if there be a charter- party, with a covenant to proceed to a foreign port, and take a cargo there on account of the charterer, and return there- with to a certain port for a stipulated hire, and the ship goes 1 Abbott on Shipping, 32G. 2 15 Johns. R. 327. 3 See MoUoy, B. 2, c. 4, 73. 148 MARITIME LAW. [CH. IV, to the foreign port, and the charterer decUnes to put any cargo on board, the owner of the ship may engage in another •voyage and take another cargo on freight. He is not obliged to pursue a voyage whose whole objects are defeated, and look for recompense to the event of a suit for damages. The neglect or refusal of the charterer to furnish a cargo pursuant to the charter-party, absolves the owner from a farther prosecution of the voyage, if he so elects, and ena- bles him rightfully to engage another cargo for another voyage.^ <§> 195. If the ship is detained beyond her lay days, that is, the days allowed by the contract for her laying to load and unload her cargo, the compensation paid by the charterer to the owner therefor is called demurrage.^ Where a certain number of lay days are stipulated by the charter-party for un- loading the cargo, and before their expiration the captain is ready and offers to unlade the goods, but the consignee refuses to receive them, and the goods are subsequently lost, but within the stipulated period, the freight is not earned. The consignee is under no obligations to receive the goods in a less time than has been stipulated. He is entitled to the solid advantages of taking his own time, provided he does not exceed the specified number of lay days. The freight is not earned until actual delivery to the consignee. The delivery is as much a part of the contract as the carriage.^ <§> 196. If, besides the lay days, a further period is allowed by a clause of demurrage, the master is bound to wait that period also, if required to do so ; but after tiie full time of laying and demurrage has elapsed, the master is not bound to wait for a cargo beyond that time, for the contract is ter- minated, and both parties are absolved from all further 1 Kleine v. Catara, 2 Gallis. R. 61. 2 Lawes on Charter-Parties, pp. 131, 132. 3 Lacombe v. Wain, 4 Binn. 299. CH. IV.] CONTRACT OF APFREIGHTMEXT, BY CHARTER-PARTY. 149 liability under it. If, however, the merchant or his author- ized agent request the master to wait, after the stipulated time has expired, there is an implied contract that he will pay for the delay.^ <§> 197. Where, by the charter-party or bill of lading, the freighter covenants with the master to unload the cargo in a certain number of days generally, or pay demurrage, it depends upon the usage of the port whether working days or running days are meant. Working days, it seems, do not include Sundays or custom-house holidays, but only such days as are, in the literal sense of the word, working days in work of a similar nature. It is better for the parties to mention working or running days expressly, according to the intention they may entertain. If there be no usage to the contrary, and no express exclusion of them, Sundays will be computed in the calculation.- <§> 198. If the lay days are not limited by the charter-party, the law will imply an understanding and agreement that the ship was to be laden and unladen in a reasonable time.^ And where by a charter-party leave was given to detain the ship a certain number of days, for the purpose of discharg- 1 Robertson v. Bethune, 3 Johns. 342. 2 Lawes on Charter-Parties, p. 131 ; Abbott on Ship. p. 381 ; Cochran v. Relberg, 3 Esp. 121. In this case the plaintiffs claimed thirty-five guineas, under a clause in the margin of a bill of lading, respecting demurrage, as follows : " To be discharged in fourteen days, or to pay five guineas per day as demurrage." Payment was resisted upon the ground that this clause meant working and not running days. Lord Eldon left the question as to the usage, whether the word " days " meant running days or working days. " If (said his lordship) no evidence had been offered, and I was to decide on the clause itself, I should have been of opinion it meant running days, and if so, the parties must abide by the contract, though incapable of performance. If it had been the case of inland trade, it must have meant working days, as the law of the country prohibits the working on any other." A special jury of merchants found a verdict for the defendant, construing the general words of the contract to mean working, and not running, days. 3 Laws on Charter-Parties, 131. 13* 150 MARITIME LAW. [CH. IV. ing her cargo, this amounts to a covenant on the part of the freighter that he will not detain her longer. And his liability on such implied covenant is not discharged from the circum- stance that he was prevented by no default of his own from restoring the vessel to the owner at the stipulated time. He is responsible for all the various vicissitudes that preclude his doing so. That is the doctrine declared in the case of Randall v. Lynch.^ In Leer v. Yates,^ a general ship ^ took brandies on board, under bills of lading, which allowed twenty lay days for the delivery of the goods in London, after arrival, and stipulated for £4 per day demurrage after- wards. Certain of the consignees choosing to have their goods bonded, the vessel could not make her delivery at the London docks until forty-six days after the twenty days, and some of the goods which were ig-. the lower tiers could not, although demanded, be taken out till the upper tiers were first removed. Upon these facts the court of common pleas decided that each of these consignees was liable on a general count for demurrage, to pay the £4 per day, for the forty-six days. <^ 199. The authority of the foregoing cases has been considerably shaken by the subsequent cases of Rogers v. Hunter,'' and Dobson v. Droop.^ In the former case, Lord Tenterden held, that if the merchant be prevented from dis- charging witkin the stipulated running days by reason of other goods being placed above his, he must, when that obstruction is removed, discharge with reasonable diligence ; 1 2 Camp. 352. 2 3 Taunt. 387. See also Harman v. Gaudolphi, 1 Holt, N. P. 35. 3 When goods are shipped on board a general ship, words are often intro- duced into the margin of the bill of lading, importing that they must be taken out of the ship within a certain time, or that in default a certain sum per diem should be paid for every day afterwards. In such cases the person claiming and receiving the goods under the bill of lading is answerable for this payment. Abbott on Shipping, p. 380. 4 2C. & P. 601. 5 Ibid. 112. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 151 that he was not entitled, at all events, to the same number of days after the goods can be got at as is specified in the con- tract, but to a reasonable time, to be determined according to the circumstances. " I have great difficulty in saying," he observed, "that when the consignee has had no opportunity of taking his goods within the time stipulated, he is bound by the contract to pay for not doing so ; he cannot, I think, in that case, be said to detain the vessel. The true principle seems to be this. If the goods of the particular consignee are not ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so ; if, in such a case, using reasonable despatch, he cannot clear them within the stipulated period from the ship's being ready to discharge her cargo generally, he will not be liable for demurrage till the expiration of such a reasonable time ; but when it is expired he will be liable, though the stipu- lated period, if computed from the time when the discharge of his own goods could have commenced, is not at an end." In the latter case, (Dobson v. Droop,) Lord Tenterden di- rected the jury that the defendant (the consignee) was not liable for demurrage unless he suffered the goods to remain on board after the time stipulated for, when he might have got them sooner. " I am certainly of opinion," he said, " that if a consignee cannot get his goods, because some other person's goods prevent him, he is not liable for the delay of the vessel." *§> 200. In the case of SpafFord v. Dodge,^ it was said that a detention by capture did not make the freighter liable for demurrage, and this for the reason that a covenant to pay for demurrage applies to a detention voluntary in the party contracting for the freight. And yet we have seen that the charterer is liable for freight during the detention from cap- ture. 1 14 Mass. GG ; see also upon this subject Duff v. Lawrence, 3 Johns. Cas. 1G2 ; Brown?;. Ralston, 9 Leigh, 532; Abbott on Shipping, p. 388, note, and cases cited. 152 MARimiE LAW. [CH. IV. <§> 201. When a ship is let by charter-party for the voyage and the charterer is to have the exclusive possession, com- mand, and navigation of her, he becomes owner pro hac vice. The possession is his, the employment is his, the con- tracts respecting that employment are his, the master, if he employs one, is his agent ; if he commands the vessel him- self, he acts on his own account.^ But, on the other hand, if the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo on freight for the voyage, or lets the whole tonnage for the voyage, the charter-party is considered, nevertheless, as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsiblity of ownership.2 <§) 202. When a master hires a vessel " on shares " under an agreement to victual and man the vessel, and employ her in such voyages as he thinks best, he thereby becomes the owner pro hac vice, during such time as the contract exists, and he, and not the general owner, is responsible for neces- sary supplies. Where, by the contract, the charterer becomes substituted owner, the general owner loses his lien on the cargo for the hire of the ship ; that lien passes to the char- terer, in whose favor it continues to exist, when goods are taken on freight.^ The owner for the voyage, the ship being 1 Drinkwater v. Brig Spartan, Ware's Rep. 149, 156 ; Webb v. Pierce, Law Rep. for May, 1852 ; The Volunteer, 1 Sumner, 551 ; Marcardier v. Ches. Ins. Co. 8 Cranch, 39 ; Certain Logs of Mahogany, 2 Sumner, 589. 2 Marcardier v. Ches. Ins. Co. 8 Cranch, 39 ; Hooe v. Groveman, 1 Cra. 24. 3 Drinkwater r. Brig Spartan, Ware's Rep. 157; Law Rep. for May, 1852, p. 9. In the case of Colvin v. Newberry, 6 Bligh, R. (N. S.) 189, Lord Terterden, in moving for an affirmance of a judgment in the Exchequer Chamber upon the question, who is to be deemed owner for the voyage, used the following language : "Two propositions of law are clear as applicable to a case like the present. The first is the common case of goods shipped on board of a vessel, of which the shipment is acknowledged by a bill of lading, signed by the master, that, if the goods are not delivered the ship- CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 153 a general one, becomes the carrier, and is responsible as such. But in every contract of affreightment or by bill of lading, losses by the dangers of the seas are excepted from the risks which the carrier takes upon himself, whether the exception is expressed in the contract or not. The exception is made by the law, and falls within the general principle, that no one is responsible for fortuitous events and accidents of major force. Casus fortuitus nemo pj-ccstat.^ <§> 203. The phrase, "dangers of the seas," whether under- stood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevita- per has a light to maintain an action against the owner of the ship. The other proposition, which is equally clear, is this; that if the person, in whom the absolute property of the ship is vested, charters that ship to another for a particular voyage, although the absolute owner appoints the master and crew, and finds provisions and every thing else, and is to receive from the charterer of the ship a certain sum of money for the use and hire of the ship, an action can be brought only against the person to whom the absolute ovyner has chartered the ship, and who is considered the owner pro tempore, that is, during the voyage for which the ship is chartered. In such a case the action cannot be maintained against the person who has let out the ship on charter, namely, the absolute owner." This case is supposed to conflict with the current of judicial opinion in this country. 'Mr. Justice Story, in the case of Certain Logs of Mahogany, 2 Sum. 589, said that perhaps there was no discrepancy between the doctrines held in Colvin v. Newberry and in Marcardier v. The Chesapeake Ins. Co., and, with reference to the facts, each might be perfectly correct. But if there be any real discrepancy, he added, between these cases, I have no difficulty, independently of my offi- cial duty, to obey the decisions of the Supreme Court, in saying that I deem the American decision built upon the more solid and satisfactory distinction. It appears to me, that, if the absolute owner doesretain the possession, com- mand, and control of the navigation of the ship during the voyage, and the master is deemed his agent, acting under his instructions for the voyage, though authorized and required to fulfil the terms of the charter-party, the absolute owner must, under such circumstances, be still deemed owner for the voyage, and be liable as such to all persons, who do not contract person- ally and exclusively with the charterer by a sub-contract witii the latter, knowing his rights and character under the charter-parly. 1 The Paragon, Ware's R. 322. 154 MAEITIME LAW. [CH. IV. ble accidents upon that element, must still in either case be clearly understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force or overwhelming power, which cannot be guarded against by the ordinary exertions of human skill or prudence. ^ <§. 204. It is an established maxim, found in all the mari- time codes, and universally recognized, that " the ship is bound to the merchandise and the merchandise to the ship." And the maritime courts enforce this doctrine by process in rem. Hence, where by the terms of a charter-party, the charterer was constituted owner for the voyage, it was held, nevertheless, that a sub-shipper acquired a lien on the ship for his damages, arising from the loss of his goods. The liability of the vessel is not merely collateral of accessory to that of the owner, but is primarily liable. The principle is, that whoever deals with the master, in all cases where he is acting within the scope of his authority as master, is entitled to look to the ship as security, and the authority of the mas- ter to bind the vessel is the same, whether he is appointed by the owners, or the ship is let to him by a charter-party. 2 Where the charterer takes in the goods of third persons, these goods are bound to the general owner, he being also owner for the voyage, fqr the hire of the ship. But they are lia- ble only to the extent of the freight, payable to the charterer by the shippers .^ <§. 205. The lien for the freight, on the goodaf shipped, and the lien on the ship for any injury or loss of the goods, may be waived by consent. And it is often a nice question, whether the stipulations of a charter-party do not involve a waiver of the lien or are not inconsistent with its existence. If the goods are to be delivered in advance of the payment 1 The Schooner Reeside, 2 Sumn. 567, 571, Story, J. 2 The Phebe, Ware's R. 263 ; The Brig Casco, Daveis, R. 181. 3 Paul V. Birch, 2 Atk. 621 ; The Volunteer, 1 Sumner's R. 551. CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 155 of the freight, that of course destroys the lien. But if the payment of the freight is to be concurrent with the delivery, the lien exists, and may be insisted on.^ 4> 206. Where a charter-party bound the charterer to pay the stipulated freight " within ten days after the return of the vessel to the home port, or, in case of loss, to the time she was last heard of," it was held, that there was no waiver of the lien upon the goods, by the allowance of ten days for payment of freight. The parties, it was said, had not stipu- lated for a delivery of the cargo within ten days, nor for any delivery at all without payment of freight. The charter- party, however, contained a clause expressly binding the cargo, and it was held, that if this clause did not contain an express contract for a lien for the freight, it was at all events sufficient to repel any inference of intentional waiver.^ In another case, a stipulation that the freight shall be paid " in five days after her (the brig's) return to and discharge at Boston," was held to be no waiver of the lien for freight. The word "discharge," as used in the charter-party, imported not an actual delivery of the goods to the charterer or owner, but a mere unlading of the cargo, which did not destroy the lien for freight, a lien favored in law, and which is not to be displaced without a clear and determined abandonment of it.3 <§. 207. Where a ship is let for the transportation of goods, or goods are taken on a contract by bill of lading, the master's duty and responsibility with respect to them commence from the moment of receiving them. They may be put on board by the charterer or shipper, and in that case the ship-owner is exonerated from any responsibility as to the manner in which that task is done.^ But if the master receive the goods 1 The Volunteer, 1 Sumner's R. 569. 2 Ibid, 551. 3 Certain Logs of Maliogany, 2 Sumner's R. 589. 4 Swainston v. Garrick, 2 Law Jour. (N. S.) 255. 156 MARITIME LAW. [CH. IV. at the quay or beach, or send his boat for them, his responsi- bility and the responsibility of his owner begins.^ If there is an absence of due care and skill in taking the goods into the ship, and in consequence they are lost or injured, the shipowner is liable. The master is bound to see that the goods are properly stowed, unless indeed the charterer or freighter appoints his own stower, in which case he is exon- erated. ^ And the same result follows, if the freighter or charterer was warned as to the mode in which they would be stowed.3 i^^ the absence of a special agreement to the contrary, or a custom in the particular trade, binding the shipper, the goods must be stowed under deck."^ A sufficient crew must be provided for the protection of the goods, when once on board, for, even if they be overpowered by a supe- rior force, and the goods are stolen, while the ship is in a port or river within the body of a country, the master and owners will be answerable for the loss, although they have been guilty of neither fraud or fault, the law, in this instance, holding them responsible from reasons of public policy, and to prevent the combinations that might otherwise be made with thieves and robbers.^ 1 Abbott's Ship. p. 463. 2 Swainston v. Garrick, 2 Law Jour. (N. S.) 2.55. 3 Major V. White, 7 Car. & P. 41. 4 If the goods are stowed on deck without the consent of the shipper, or without the sanction of custom, they are at the risk of the shipowner or master, and he and the owners of the vessel would not be protected from liability for their loss by the exception'in the bill of lading of the dangers of the sea, unless the dangers are such that they would have been lost, even if properly stowed under deck. The Paragon, Ware, 322 ; Varnard v. Hud- son, 3 Sumn. 405. 5 Abbott on Ship. p. 424. " If an armed force," said Mansfield, C. J., in the case of Forward v. Pittard, 1 T. R., " come to rob the carrier of the goods, he is liable, and a reason is given in the books, which is a bad one, namely, that he ought to have sufficient force to repel it ; but that would be impossible in some cases, as, for instance, in the riots in the year 1780. The true reason is, for fear it may give room to collusion, that the master may contrive to be robbed on purpose, and share the spoil." CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 157 <§. 208. In respect to setting sail, it is the doctrine of the maritime law, that the master, having obtained the requisite documents and clearances, must sail out with the first favor- able weather. If he remain in port without sufficient cause when the season is favorable for the voyage, and the goods are in consequence lost or injured, the ship-owner is bound to repair the loss. But the master is culpable if he sail in spite of wind and weather, for the voyage must be made according to the circumstances of the ship, time, and place, and according to the practice of skilful navigators.^ He is bound to proceed by the usual course to the port of destination without unnecessary delay and without deviation, except for adequate cause. The necessity to procure repairs or sup- plies, to avoid enemies or pirates, or to relieve a ship in dis- tress, will be deemed by the law adequate cause.^ But merely to save property, where human life is not in jeopardy, does not justify a departure from the known and usual track of the voyage. 3 •§> 209. In the case of the Schooner Boston,"* it appeared that the master of the ship Magnolia interrupted his voyage to take on board the crew of the Boston, who had abandoned the schooner and betaken themselves to the longboat, for the safety of their lives. In doing this, said Mr. Justice Story, the master of the Magnolia did his duty. "It was a duty," he observed, "thrown on him by the first principles of natural law, the duty to succor the distressed, and it is enforced by the more positive and imperative commands of Christianity. The stopping for this purpose could not, in my judgment, be deemed by any tribunal in Christendom, a de- viation from the voyage, so as to discharge any insurance, or ^ Roccus, note 5G, Ingersoll's Translation. 2 Abbott on Sliipping, p. 44"J, note. 3 Bond V. The Cora, 2 Wash. C. C. R. 80 ; Mason v. Ship Blaireau, 2 Cranch, 208. 4 1 Sumner's R. 328 ; see also Bond v. Ship Cora, 2 Wash. C. C. 80. MAR. 14 158 MARITIME LAW. [CH. IV. to render the master criminally or civilly liable for any sub- sequent disasters to his vessel occasioned thereby." <§. 210, Mr. Justice Sprague, in the case of Williams v. Box of Bullionji held, that it was not a deviation for a vessel to go out of her course three miles to speak another at sea, on seeing a signal for that purpose, nor to delay three hours to take from a foreign ship, bound to a foreign port, ship- wrecked mariners of the United States, for the purpose of bringing them direct to the United States. It certainly should be the policy of the law to encourage mutual assistance by vessels on the high seas. Humanity and morality unite in forbidding any such construction of the law as will prevent prompt attention and succor to ships in distress. <§> 211. If a particular route be described by the charter-party or contract, the master must pursue it.^ If a departure be made from the designated route, or from the direct and usual course, where there is no such designation, without such ne- cessity as the law will admit, and the cargo is lost or injured, the presumption of law is, that the proximate cause of the misfortune was the deviation. But this presumption, it seems, may be rebutted, by showing that the loss or injury of the cargo was not attributable to the deviation, but arose from some other cause, not connected with it.^ The responsi- bility of the ship-owner continues until the goods are actu- ally delivered at the port of destination, to the merchant or his consignees.^ 1 6 Law Rep. 363. 2 Abbott on Shipping, p. 443, note, and authorities there cited. See also Hand v. Baynes, 4 Whart. 204. 3 Souler v. Baymore, 7 Barr, 415. 4 It was no part of the plan of this chapter to enter upon so extensive a field of inquiry as the law with respect to common-carriers. That subject therefore, is left untouched except so far as it seemed especially connected with the main topic. For the following note upon the measure of damages in actions against common carriers, on contracts of affreightment, I am in- debted to the kindness of a friend : — CH. IV.] CONTKACT OF AFFREIGHTMENT, BY CILUITER-PARTY. 159 Although there has been some diversity in the decisions in this country as to the measure of damages in actions against common-carriers on contracts of affreightment, yet I must differ from the view taken by the learned author of a late vj^ork, (Conkling's U. S. Adm. p. 189,) who adopts as the measure of damages, the value of the goods at the time and place of shipment in the case of loss, and in the case of damage the diminution of value by reason of injury, estimated by the same standard, a rule taken by analogy from that in cases of prize and insurance, and which, he insists, is strongly recom- mended by its substantial justice and simplicity. A review of the cases, 1 think, will lead to a different conclusion. In Gillingham v. Dempsey, 12 Serg. & R. 183, which was an action brought to recover the value of crates of earthen-ware, destroyed on a voyage from Liverpool to Philadel- phia, the question came up in the Supreme Court of Pennsylvania, upon a point reserved on the trial at Nisi Prius, and after an able argument by emi- nent counsel it was determined that the measure of damages was the value of the goods at the port of destination. Tilghman, C. J., delivering the opinion of the court sustains this rule, both upon authority and principle. " If we consider it on principle, the damage of the plaintiff is the loss which he has sustained by the non-delivery of his goods at the place of des- tination, and that loss is the net price which the goods would have brought at that place. In insurance the law is so well known that the merchant who wishes to cover himself to the amount of his goods at the port of destina- tion, may do so by valuing them in the policy accordingly, or by a special insurance on profits. Then if we consider the policy which should regulate these contracts, it is best to remove from the carrier all temptation to fraud which will best be done by making him answerable for the value at the place of delivery. If the goods should be of increased value at the place of de- livery, as they generally are, and the liability extends no further than the value at the place of shipment, there is very great temptation to fraud.'' And in the case of King v. Shephard, 3 Story, R. 349, Judge Story ex- pressly says " that the rules which regulate cases under policies of insurance are by no means the same as those which either necessarily or ordinarily govern in cases of common-carriers." In that case the measure of damages was held by him to be the value of the goods at an intermediate port where the vessel had stranded and where the goods were embezzled — a rule which will not be found practically to be one of universal application, and was adopted, probably, in accordance with that in cases of collision, where the measure of damages is the value of the goods at the time and place of injury. Smith et al. v. Condry, 1 Howard, 28, In the case of The Cassius, 2 Story, 81, where the goods had arrived at the port of destination, Mr. Justice Story awarded the value of the goods at the place of destination, deducting freight and duties. In New York, in the case of Smith v. Richardson, 3 Caines, 219, which was an action for breach of contract in not carrying, the price of the goods at the port of destination was held to be too uncertain and unreasonable to be admitted as a rule of damages ; but in the succeeding cases of Walkinson v. 160 MARITIME LAW. [CH. IV. Laughton, 8 Johns. 213 ; Brackett v. McNair, 14 Johns. 170 ; and Amory v. McGregor, 15 Johns. 24, the principle of Smith v. Richardson was overruled and the value of the goods at the place of destination was adopted as the measure of damages. In the case, also, of Elliott v. Russell, 10 Johns. 1, it seems not to have been disputed that the measure of damages was the value of the goods at the place of destination. In Pennsylvania, the rule adopted in Gillingham v. Dempsey has been fol- lowed and sustained in Warder v. Greer, 6 W. 424, and O'Connor u. Foster, low. 418. The cases in which the value of the goods at the place of shipment has been adopted as the measure of damages, are Bridget. Austin, 4 Mass. 115 ; Dusar v. Murgatroyd, 1 Wash. C. C. R. 13 ; and The Tribune, 3 Sumner, 144. Bridge v. Austin was an action against a supercargo who had undertaken to convey the goods at his own risk from Boston to Charleston, and there to dispose of them on account of the plaintiff. The goods arrived safely at Charleston and were then stolen, and the measure of damages was held to be the value of the goods at Boston. But it is to be observed that in this case the contract of the defendant was treated rather as that of an insurer under a valued policy than as that of a common-carrier. In Dusar v. Murgatroyd, the vessel sank with the cargo on board, at the port of shipment, before commencing the voyage, and the damages were directed to be estimated by the value of the goods at the port of shipment, but it appears that the point was abandoned by the counsel for the plaintiff. The case of The Tribune was a libel on a memorandum of a charter-party, in the nature of an action for a breach of contract in not carrying, and Mr. Justice Story was of opinion " that the expected profits to be made on the voyage, and the supposed injury to the libellant from his inability to comply punctiliously with his contract with the government of Cuba are not proper items of damage." There is also the case of Edmonson v. Baxter, 4 Hay ward, 112, which I have not had the opportunity of examining, in which the rule in Smith v. Richardson, is stated to have been followed. Although a common-carrier is sometimes called an insurer, yet it will be perceived that the nature of the contract is essentially different. The con- tract of the insurer is simply one of indemnity, while that of the carrier is to convey and deliver at a certain place, to which the law also adds the im- plied contract to indemnify against all losses except those occasioned by the act of God, and the damages suffered by the shipper are essentially to be measured by the price which he would have received had the carrier com- plied with his contract. Nor under the cases, or on principle, can any dis- tinction be drawn between actions brought to recover damages for loss or injury to goods, and those for breach of contract in not carrying. The same rule holds in both ; and in the latter the carrier is responsible for the differ- ence between the price which the shipper could have obtained at the time CH. IV.] CONTRACT OF AFFREIGHTMENT, BY CHARTER-PARTY. 161 when the goods would have arrived at the place of destination, had the car- rier complied with his contract, and the value at the place of shipment, deducting freight and charges. Brackett v. McNair, 14 Johns. 170 ; O'Con- nor u. Foster, 10 W. 418. In Sedgwick's Measure of Damages, p. 170, the measure of damages in actions against common-carriers is stated to be the value of the goods at the place of destination. I venture to express an opinion that this rule will be found to be supported by the weight of authority. 14* 162 MARITIME LAW. [CH. V. CHAPTER Y. OF THE DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT. <§> 212. It is a familiar rule of law that the parties to a con- tract may dissolve it by mutual consent. If the contract is embodied in an instrument under seal, the doctrine of the common law is, that it can only be discharged by an instrument of equally high nature. But a court of admiralty, like a court of equity, proceeding ex cequo et bono, disregards technical rules of this character, and respects the intention of the parties without reference to the mode or particular form of its expression. <§) 213. Contracts may also be dissolved by operation of law. It is a principle of universal application that a contract lawful at the time it was made is dissolved, if a law after- wards renders its performance unlawful. Thus, if after a contract to carry goods from the United States to England, a war should break out between the two countries, the voyage becomes unlawful, and the contract is at an end. The same result would follow, if the trade between the countries should be wholly interdicted, or partially so, by the prohibi- tion of particular articles, which constitute the subject- matter of the contract. But if war should intervene between the country to which the ship or cargo belongs, and any other nation, to which they are not destined, the contract remains undischarged and must be performed unless mutu- ally abandoned. The voyage is rendered more dangerous, but its lawfulness is not affected.^ 1 Abbott on Shipping, p. 764 ; Odlin v. The Ins. Co. of Penn. 2 Wash. C.C. R. 317. CH. v.] DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT. 163 <§> 214. That class of cases, where the performance of the contract becomes unlawful, is distinguishable from that class where the law merely suspends the performance, but does not condemn the subject-matter of the contract. In the former case, as we have seen, the contract is rendered null and invalid, whereas in the latter case the contract itself is not affected, but must be performed upon the removal of the disability. An embargo, imposed by the government of the country to which the ship and cargo belong, is an instance of the application of this doctrine. Such temporary restraint, for temporary it is deemed to be, although unlimited as to time, does not go to the foundation of the contract, does not discharge it, but only suspends the performance of it. The ship-owner is merely disabled from commencing the voyage at the specified time. When the embargo is removed the voyage must begin. i <§. 215. A blockade of the port of departure operates like an embargo, only a suspension of the contract of affreight- ment. The carrier has a continuing and subsisting right to wait until he has an opportunity to go to sea. The freighter cannot deprive him of this right without his consent or with- out tendering to him the stipulated compensation for the carriage of the goods.^ <§. 216. If the cargo is of a perishable nature, and cannot endure the delay, in that case the shippers are entitled to receive their goods. That was the doctrine declared in the Isabella.3 That was the case of a Swedish vessel with a cargo of fish, detained by an embargo after the voyage was commenced. Sir W. Scott held that the master was not enti- 1 Odlin V. The Ins. Co. of Penn. 2 Wash. C. C. R. 317; Hadley v. Clark, 8 T. R. 259 ; Touting v. Hubbard, 3 Bos. & Pull. 291. 2 Palmer v. Lorillard, IG Johns. R. 348; Ogden v. Barker, 18 Id. 87; Code de Commerce, art. 276. 3 4 Rob. Adm. R. 63. See, also, Palmer v. Lorillard, 16 Johns. R. 348. 164 MARITIME LAW. [CH. V. tied to freight, that the embargo rendered it impossible to fulfil the contract of affreightment ; the cargo could not wait till the embargo might be taken off. The embargo was of a hostile nature, laid upon Swedish vessels by the British government. «§) 217. It is a question of importance whether, when the performance of the contract of affreightment is suspended by an embargo or hostile investment of the port of departure, the freighter is entitled to receive his goods, they being of a perishable nature, without making any compensation to the carrier for the loss of freight, or giving any security therefor. The European codes, as a general proposition, give to the ship- owner in a case of this kind, one half the stipulated freight, thinking it unjust that he should bear the whole loss of a common misfortune. <§> 218. The question of compensation was examined in the case of Stoughton v. Rappallo.^ The court did not decide whether the contract of affreightment was dissolved or suspended by the blockade of the port of departure ; but they held that the master of the carrier ship, has no right to detain the goods of the shipper until he is enabled to perform his contract by the removal of the disability. The ground upon which the decision was placed was this, that the earn- ing of freight is precedent to the right of detention. And as no freight is earned, in consequence of the blockade or embargo, no right of detention exists. If the master has any right to indemnification, in case the goods are not re- shipped when the blockade ceases, it must be enforced by an action on the case. >§. 219. The doctrine declared in Stoughton v. Rappallo would seem to embrace every case and enable the freighter, when the voyage is delayed by blockade or embargo, to obtain 1 3 S. & R. 559. CH. v.] DISSOLUTION OF THE COXTRACT OF AFFREIGHTMENT. 165 his goods, no matter whether they are of a perishable nature and incapable of the delay or not. But the decision, understood with reference to the particular circumstances of the case, does not go beyond what is supposed to be the true doctrine, namely, that the freighter is only entitled to his goods when they are of a perishable nature and cannot endure the delay. In that case, the cargo was of flour, the blockade was to be expected to continue a long time, summer was approaching, and during the hot weather flour is a perishable article, and if kept on board during the con- tinuance of the blockade, would have been spoiled, or if secured on shore would have greatly deteriorated. Upon these facts, the court held that the owner of such a cargo was entitled to have it unladen, that he had the right to the possession of it, and the power to sell it without giving any security to replace it. The point upon which the court, as we think, erred, was in holding that the master was bound to surrender the cargo without any compensation or without giving security for the payment of half freight, which was demanded. • <^ 220. The cargo, in the case of Palmer v. Lorillard,i was not of a perishable nature, and could well endure the delay. The facts of the case, therefore, only called for a decision upon the point whether the master was bound to give up the cargo to the shipper, unless the whole freight was tendered or secured. We have seen that Sir William Scott, in the case of The Isabella,^ held that no freight was due, that the goods being of a perishable nature, rendered it impossible for the contract of aff'reightment to be performed. Valin also considers the shipper as absolutely discharged from re- loading or indemnifying the master, when the cargo consists of such perishable articles as cannot be preserved during the time that the detention continues. The reason assigned is, 1 G Johns. 348. 2 \ Rob. Adm. R. 63. 166 MAKITIME LAW. [CH. V. that the detention, considering the nature of the cargo, abso- hitely breaks up the voyage and prevents the execution of the contract.^ But Jacobsen reports a case, decided at Altona, much more in accordance with the general mari- time law than the other authorities we have referred to, and which, we cannot but think, expresses the just and equitable rule.^ <§» 221. The case was this : In April, 1813, while Hamburg was in possession of the Russians, a merchant at Hamburg chartered a ship to carry a cargo of grain to London. The vessel proceeded a few miles down the river Elbe, and was there interrupted in her voyage, by the French and the Danes, who occupied different sides of the river, and com- pelled her to return. The grain becoming heated, the cargo was unloaded by the owner of it, and who required the master to discharge it. The master claimed the whole freight under the Danish and the Hanseatic law, as the voyage had been commenced and defeated by a vis 7najor. The merchant only tendered one eighth of the freight, and insisted, for various reasons, that the law giving freight did not apply. The court at Altona awarded to the master half freight, ex cequo et bono, according to equity and conscience. <§> 222. We think it clear, that upon principle, and the authority of the general maritime law, the master is not bound to surrender the cargo in a case of embargo or blockade, although composed of perishable articles, unless the shipper makes some equitable allowance for the loss of freight. "In such a case, however," says Lord Tenterden, " whatever the rule of law may be, the interest of all parties will in general induce them to annul the contract upon rea- sonable terms.^ ^ Com. on Art. 9. 2 Sea Laws, p. 295, of Frick's Translation. 3 Abbott on Shipping, p. 698. CH. v.] DISSOLUTION OF THE CONTRACT OF AFFREIGnTMENT. 1G7 >§> 223. A blockade of the port of destination absolutely dissolves the contract of affreightment. Neutrals are bound to respect a blockade. It is based upon the law of nations, a law equally obligatory upon neutrals as a municipal regu- lation of their own country. ^ In the case of The Tutela,^ which was a charter-party between a neutral and a bellige- rent, the vessel was captured on a destination to St. Lucar, a blockaded port. It was contended, that as the master had signed the charter-party before he was aware of the blockade, he was bound to proceed. But Sir W. Scott, in pronouncing sentence of condemnation upon the property, said, "I con-, ceive the law is not so, but that he would have been justified in refusing to go on. As in all other contracts, that become illegal, he might have protested against being any longer bound by his charter-party. Does he apply to his own con- sul, or to the courts of justice? If he had, unless all the first principles of justice are totally disregarded in that country, I cannot suppose that they would have refused to exonerate him from the obligation of his contract, or that he would have been actually forced out of port. <§) 224. A mere nominal blockade of the port of destina- tion does not work a dissolution of the contract of aflJ'reight- ment. To produce that result, it must be a real and effective blockade ; that is, there should be a force stationed to pre- vent communication, and a due notice or prohibition given to the party.-^ "A blockade," said Lord Stowell, in the case of the Juffrow Maria,^ "may be more or less rigorous, either for the single purpose of watching military operations of the enemy and preventing the egress of their fleet, as at Cadiz, or on a more extended scale, to cut off all access of neutral vessels to that interdicted place, which is strictly and properly a blockade, for the other is in truth no blockade at all, as far as neutrals are concerned. It is an undoubted right of belli- 1 ScoU V. Libby, 2 Johns. R. 336. - 6 Rob. 177. 3 1 Rob. 87. ■• 2 Rob. 147. 168 MARITIME LAW. [CH. V. gerents to impose such a blockade, though a severe right, and as such not to be extended by construction. It may operate as a grievance upon neutrals, but it is one to which, by the law of nations, they are bound to submit. Being, however, a right of a severe nature, it is not to be aggravated by mere construction. If the ships stationed on the spot to keep up the blockade will not use their force for the purpose, it is impossible for a court of justice to say there was a blockade actually existing at the time, so as to bind the vessel." If, however, the blockading force is accidentally absent from their station, blown off, for instance, by wind, and the suspension and the reasons of it are known, the cir- cumstance is not sufficient in law to remove the blockade. Taking advantage of such accidental absence of the block- ading force, is mere fraud, and renders the vessel so trans- gressing liable to capture.^ <§. 225. A notice of the blockade from the government of the belligerent country to neutral governments, is supposed to be notified by such governments to their subjects. If, however, there is no public notice of the blockade, but it exists defacto^ vessels going in will, of course, be notified of it by the blockading force. Where a vessel clears out for a blockaded port, with the intention to inquire at some port of the blockading country, as to the continuation of the block- ade, the voyage is not thereby rendered illegal. The act of sailing to a blockaded port, after notification of the block- ade, with the intention to violate it, is per se illegal. That was the doctrine declared in the case of The Neptune. 2 And it is obviously reasonable and just. " But," said Chief Jus- tice Tindal, in Medeiros v. Hill,^ '• neither that case nor any 1 1 Rob. Adm. R. 87. 2 2 Rob. Adm. R. 110. 3 8 Ring. R. 231. The doctrine stated by Tindal, C. J., it naust be ad- milted, is not sustained by the recorded opinions of Lord Stowell. It will, however, we apprehend, be found, upon a particular examination of the cases decided by his lordship, that in each of them the vessels condemned, had CH. v.] DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT. 169 Other that can be cited has laid it down that the mere act of sailing to a port which is blockaded at the time the voyage cleared out with the intention to enter the blockaded port, unless tlioy met with the blockading force, and were warned off. Thus, in the case of Tlie Shepherdess, 5 Rob. 236, it was the evident intention of the master to enter Havre, a blockaded port, if it were possible, notwithstanding he hnd been warned of the blockade by a ship of the blockading squadron. In the case of The Spes and Irene, 5 Rob. 92, the masters were directed by the owners to proceed to the Elbe, which was blockaded, and if they met the block- ading squadron, to inquire whether the river was then under a blockade or not, and unless warned and turned away, to continue their course. "Are these the orders," said Sir William Scott, "which owners ought to have given ? I think not. The neutral merchant is not to speculate on the greater or less probability of the termination of a blockade, to send his vaesels to the very mouth of the river, and say, if you do not meet with the blockading force, enter ; if you do, ask a warning and proceed elsewhere." However, Lord Stowell did, in repeated instances, lay down the broad doctrine, that sailing for a blockaded port, knowing it to be blockaded, is an attempt of itself to en- ter that port, and therefore a breach of the blockade, from the departure of the vessel. He admitted one exception to the general doctrine, and that was, in the case of a country at a great distance from the blockaded port, although notified of the e.xistence of the blockade. He admitted that vessels belonging to mer- chants of such a country might lawfully clear out for the blockaded port, on the supposition that before the arrival of the vessel a relaxation might have taken place. But he adtled that the inquiry must be made at some one of the ports of the blockading country. " It ciiuld not be," he observed, in the case of The Shepherdess, 5 Rob. 236, " that ships should be permitted to resort to the ports of the blockaded country for this information, since every one must perceive that such a liberty would place it in the power of the enemy to determine the continuance of the blockade. The ports of the blockading country are certainly the proper ports for inquiry, and it would not be too much to expect that this precaution should be noted in the papers, and that it should be most explicitly enjoined on the master and supercargo, in their instructions, to obtain the information that might be necessary to fix the destination, at some of the British ports in the Channel." And in the case of The Betsey, 1 Rob. Adm. R. 332, he used similar language. " That American merchants," he said, "should therefore send their ships upon a fair conjecture that the blockade had, after a long continuance, terminated, and for the purpose of making fair inquiry whether it had so determined or not, is, I think, not exceptionable, though I certainly agree that tiiis inquiry should be made, not in the very mouth of the river or estuary, from the block- adintr vessels, but in the ports that lie in liie way, and which can furnisii information without furnishing opportunities of fraud."' See alsoYeaton v. Fry, 5 Cranch, 33-5. MAR. 15 170 MARITIME LAW. [CH. V. is commenced, is any offence against the law of nations, where there is no premeditated intention of breaking the blockade, if it shall be found to continue in force when the ship arrives at the port. Any such determination would be destructive, in many instances, of the fair commercial speculations of neutral merchants, to whom it might be of the first import- ance to possess the opportunity of introducing their goods into the port which had been blockaded, at the very earliest moment after such blockade had been relaxed." <§) 226. Upon the principles stated in the preceding section, it has been held that it is no defence to an action on a charter-party for not sailing on the voyage to the port agreed on, that 'the port was in a state of blockade, if the defend- ant knew the fact at the time of entering into the charter- party, and provided there was no intention to violate the blockade. § 227. A contract for the conveyance of merchandise on a voyage is in its nature an entire contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is ,due.i Hence, in the case of a blockade of the port of destination, after the voyage is commenced, and the cargo in consequence is brought back, neither whole, nor pro raid, freight is due.^ In the case of The Friends,^ Lord Stowell declared a different doc- trine. In that case, the ship was chartered to carry a cargo from Campeachy to Lisbon. She successfully prosecuted her voyage up to the very mouth of the Tagus, when she was warned off by the blockading squadron. Upon receiving this intimation, she continued for some days with the fleet, but a gale of wind coming on, which blew her out to sea. 1 The Ship Nathaniel Hooper, 3 Sumn. 544 ; Caze v. The Baltimore Ins. Co. 7 Cranch, 358. 2 Scott V. Libby, 2 Johns. 330 ; Liddard v. Lopez, 10 East, 5-3fi. 3 Edwards, R. '243 ; but see The Louisa, 1 Dud. 317, where Lord Stowell held contra. CH. v.] DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT. 171 she was picked up by a Spanish privateer, and was soon afterwards retaken by a British cruiser and carried to Ma- deira, where the ship and cargo were sold by the recaplors to pay the salvage. A claim was subsequently given for the ship and cargo, which was decreed to be restored, and the question was then presented to the court, whether freight, and how much, was due under the circumstances of the case. Lord Stowell allowed a moiety of the freight, and upon the ground, that as the loss arose from the common incapacity of both ship and cargo to perform the voyage, on account of the blockade of the port of destination, equity suggested that the loss should be divided. <§. 228. The doctrine laid down by Lord Stowell in the case of The Friends is directly opposed to the principle of the American decisions, and does not express the English law upon this subject. If the voyage is not performed the freight is denied. That is the rule acted upon both by the courts of common law and of admiralty. <§> 229. Capture does not of itself, ipso facto, dissolve the contract of affreightment. It suspends it during the prize proceedings, and it reattaches upon a recapture, which confers a title to salvage only, and restores and does not ex- tinguish the rights of neutrals.^ <§, 230. It was held, in the case of Morgan v. The Insur- ance Company of North America,'-^ that if the cargo be pro- hibited an entry, by the government of the country, and such prohibition takes place after the commencement of the voyage, and the cargo be brought back, the freight for the outward voyage is earned. This doctrine is agreeable to the rule of the French law, and is supposed to stand upon grounds that do not apply to a case of blockade of the port 1 The Ship Hooper, 3 Sumn. R. 542. ^ 4 Ball. 459. 172 ' MARITIME LAW. [CH. V. of destination. " It is not," said Tilghman, C. J., "like the case of a vessel which is prevented from entering the port of delivery by a blockading squadron, for there the voyage is not performed, and it is impossible to say certainly, that it would have been safely performed, if there had been no blockade. <§> 231. It is difficult to perceive any real and substantial difference between the two cases. An attempt to enter the port of destination, after it has been put in a state of block- ade, is illegal. An attempt to land the cargo, after it has been prohibited by the government of the country, would be equally illegal. The contract of affreightment in the former case is dissolved, because its performance has become illegal. In the latter case the performance of the contract becomes equally illegal, and why should not the same result follow ? <§) 232, If the performance of the contract is rendered un- lawful by the government of the country to which the ship and cargo belong, as it would be if the commodities that compose or are destined to compose the cargo, should be pro- hibited from exportation, in that case the contract is dis- solved on both sides.i <§> 233. If, on the other hand, a merchant hire a ship to go to a foreign port, and covenant to furnish a lading there, a prohibition by the government of that country to export the intended articles, neither dissolves the contract nor excuses a non-performance of it. This doctrine was declared in the case of Blight v. Page.^ The owner of a vessel agreed to go to a certain port and take in a cargo of barley, to be car- ried on freight. When the vessel arrived at the port, the defendant could not furnish the cargo according to his agree- ment, because the government refused to permit the exporta- tion of barley. The owner sued the defendant for not com- i Barker v. Hodgson, 3 M. & S. 267 ; Abbott on Shipping, p. 705. 2 3 Bos. & Pull. 295, note (a.) CH. v.] DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT. 173 plying with his contract, and recovered damages equal to the amount of the freight. "If a man," said Lord Kenyon, " undertakes what he cannot perform, he shall answer for it to the person with whom he undertakes." But does it make no difference if an intervening law renders the performance of the undertaking absolutely unlawful ? 15 =.* 174 MARITIME LAW. [CH. VI. CHAPTER VI. OF THE master's AUTHORITY WITH REGARD TO REPAIRS AND SUPPLIES FURNISHED TO THE SHIP, AND HEREIN OF MARITIME LIENS. <§. 234. It is a general principle of the marine law, that the master of a ship has power to bind his owners, in all contracts for repairs and supplies, reasonably fit and proper for the ship, under the actual circumstances of the voyage. This rule is established as well upon the implied assent of the owners, as with a view to the convenience of the com- mercial world. 1 The master himself, unless there be some special agreement, is in every case personally responsible upon all the contracts which he makes in reference to the repairs, supplies, and navigation of the ship. But if there is a special promise by the owners, the master is discharged from any obligation, and on the other hand, if there is a special promise by the master, the owners are not liable. In the absence of any special contract, both the master and owners are bound for the repairs and supplies, he obtains for the ship. The master, because the credit is given to him, the owner, because the contract is on his account.^ If the repairs and supplies are ordered in the home port, they will generally be presumed to be chargeable to the master as well as to the owner, the same as if obtained in a foreign port. But if it is shown that the owner, or the ship's husband managed the vessel and that the party contracting with the master was aware of this, then the presumption of the 1 The Aurora, 1 Wheat. R. 102 ; The Ship Fortitude, 3 Sumn. Rep. 228, 236 ; 3 Kent's Com. 163 ; Abbott on Shipping, 169 ; Molloy, B. 2, c. 1, § 10. 2 Abbott on Ship. p. 167, note; James v. Bixby, 11 Mass. 34; Mar- quand v. Webb, 16 Johns. 89. CH. VI.] OF THE master's AUTHORITY, ETC. 175 master's authority, as agent of the owners, is rebutted, and they are not bound. ^ Of course, when the repairs or sup- plies are ordered by the owners, the master is never liable. The owners contract for their ship, the credit is given to them only, and there is no ground upon which to charge the master.^ The master is the agent of the owners both as to the employment of the ship and the means of her employ- ment. Hence if he is compelled to pay duties in order to obtain a clearance of the cargo or freight he may bind the ship-owner to the payment. ^ It has been objected to the application of the doctrine in this instance, that the power of the master relates only to the carriage of goods and the sup- plies requisite for the ship. The master, quoad the cargo, it is said, is limited to the duties and authorities of safe cus- tody and conveyance, and except in cases of unforeseen necessity, he is a stranger to the cargo, beyond these pur- poses. He is set over the ship and not over the cargo, and the owner of the ship cannot be bound by any contract of the master, relative to the goods on board. Such is the ar- gument.* The answer is, that in this case, as well as where repairs or supplies are obtained for the ship, the act of the master proceeds from the same cause, namely, necessity. He is prevented from employing the ship and earning freight. The fact that the vessel cannot put to sea without the pay- ment of port charges or other duties, and that the master has not the means of paying them, constitutes the necessity under which he is authorized to borrow on the personal responsibility of his owner.^ <§. 235. It is not necessary, in order to justify the master in borrowing, that the occasion should arise in a foreign ^ Leonard v. Huntington, 15 Johns. 298 ; James v. Bixby, 11 Mass. 34 ; Curtis's Merchant Seamen, p. 172. 2 Farmer v. Davies, 1 Term R. 108. 3 Milward v. Hallet, 2 Caines, R. 77. 4 Dissenting opinion of Kent, J., in Milward v. Hallelt. ^ Descadillas v. Harris, 8 Greenl. 298. 176 MARITIME LAW. [CH. VI. country. If the case is one of pressing necessity, such that the master and owner cannot communicate without great prejudice and delay, he may borrow at home as well as abroad. 1 But if the owner or his personal agent be at the port, or so near to it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him or his agent to do what is necessary.^ But whether the money is borrowed at home or abroad, it is incumbent on the creditor in either case, in order to charge the owner, to show the ap- parent or presumed necessity of the repairs or supplies, for which the money was advanced. The law casts the oiius prohandi on the tradesman or material-man who provides the supplies, as well as on the party who advances money to procure them. " This doctrine," said Dr. Lushington, in the case of The Alexander,^ " is founded on great and important principles, and the rule is wisely framed to prevent great abuses. To charge one man for the acts and dealings of an- other, is prima facie contrary to natural law ; but when it ap- pears that such other person was authorized to a given extent, when the relation of principal and agent is established, then it becomes reasonable to fix the principal with responsibility, but a responsibility properly guarded and restrained, by re- quiring the creditor to use reasonable diligence to ascertain that the want of the article is such, that the owner himself would have sanctioned the purchase." If it appears from the evidence of the creditor, that the money was lent or the supplies furnished in good faith, upon due inquiry into the necessities of the ship, their misapplication by the master does not exonerate the owner.^ " The lender," said Mr. 1 Arthur v. Burton, 6 M. & W. 188 ; Johns v. Simons, 2 Adol. & Ellis, N. S. 424 ; Stonehouse v. Gent, Id. 431. 3 Case of Arthur v. Burton, in the Court of Exchequer. 3 6 Jurist, 241. 4 Wainwright v. Crawford, 4 Dall. 225 ; The Ship Fortitude, 3 Sumn. 233 ; The Sophie, 1 Rob. R. 368. CH. vl] of the master's authority, etc. 177 Justice Story, in the case of the ship Fortitude, " is to see that an apparent case of necessity is made out, and he is to take care that he does not knowingly advance more money than what may be fairly deemed fit for the occasion. But having done this, and acted in good faith, he is protected by the law to the extent of his contract. If, then, there has been a mistake made, as to the mode or extent of the repairs, but it has been unintentional and after reasonable examina- tion, and there was a leak necessary to be stopped, what has the lender to do with the matter ? He is not supposed by the law to have any skill, or to exercise any particular judg- ment as to the mode of repairs. The lender has no obliga- tion on him to search out and ascertain the true cause of the loss, or the damage which requires the repairs. It belongs not to him rerum cognoscere caiisas ; it is sufficient that the necessity of the repairs is made apparent, and that he has made due inquiry into the fact." ^ <§> 236. Where necessary supplies are furnished to a vessel abroad on a voyage, after the owners of her, when she sailed, have legally and bona fide sold all their interest in her, but of which sale neither the master nor the merchant furnish- ing the supplies have any knowledge, the original owners are not liable to the merchant for such supplies. When the owners alienate their interest in the vessel, the master ceases to be their agent, and the supplies are not furnished for their use. The subsequent owners, however, are liable, for the legal interest in the vessel is in them, and they have the use and benefit of the supplies.^ 1 3 Sumner, 233, passim. 2 liussey v. Allen, 6 Mass. 1G3. The principle stated in the text is not aflected by the circumstance, that the naked legal title remains in the vendor for his security after the contract of sale is made and possession delivered. That fact does not render him liable, as owner, on the contract or for the conduct of the master. 3 Kent's Com. 132, 133. In the case of Wendover v. Hogeboom, 7 Johns. R. 308, it appeared that the defendant had sold the vessel to one Vosburgli, and delivered the possession to him 178 . MARITIME LAW. [CH. VI. <§. 237. The master of a ship possesses no power or authority over the voyages or concerns of the ship, or the interests of the owners beyond what the law of his own country justifies and sanctions. The laws of a foreign country cannot clothe the master with an authority to bind his owners, which the latter have never given him, or which the laws of his own country have denied him to possess. ^ The cases of Malpica V. McKoun,^and Arago v. Carrol,^ contain a different doctrine. The rule laid down in those cases is that a contract made in a foreign country, by an agent, is precisely the same, in the legal result, as if made by the principal himself personally in that country. In each case the contract is to be treated as a contract made in that country, and possessing all the previous to the plaintiff's furnishing the sails, for which the action was brought. The consideration-money for the ship was to be paid in instal- ments, and a formal bill of sale was not to be executed and delivered, until the payments were completed. It was held that a regular bill of sale was not essential to transfer the property in a vessel, and that the former owner under such a sale, was not responsible for articles furnished the vessel. He had ceased to be owner, so far as to exempt him from responsibility for supplies, especially, as in this case the credit was not given to him. And in Leonard v. Huntington, 15 Johns. R. 298, where a contract was entered into for the sale of a vessel, the possession of which was immediately taken by the purchaser, but it was agreed that a bill of sale should not be given until the whole purchase-money was paid, and in the mean time the register stood in the name of the original owner, who, however, exercised no control what- ever over the vessel, it was held that he was not liable for repairs made by the direction of the master and on the credit of the purchaser, between the time of the contract and the consummation of it by delivery of a bill of sale. •' A man can only be charged in respect to property in a ship," said Best C. J., in the case of Harrington v. Fry, 2 Bing. R. 179, " either upon credit given to him, or as legal owner, or as holding himself out as legal owner." And every case of the kind, that is to say, every case where sup- plies are furnished a vessel after the original owners have alienated their interest, must be understood with reference to this salutary principle, namely, that if special credit was authorized to be given by the original owners, they will be liable, notwithstanding the sale. V^ide Frazer v. Marsh, 2 Camp. 317 ; Thorn v. Hicks, 7 Cowen, 697. 1 Pope V. Nickerson, 3 Story's R. 465. 2 Miller's Louis. R. 240. 3 Ibid. 528. en. Vr.] OF THE master's AUTnorfrTY, ETC. 179 obligations of the like contracts in that country, personal, if personal, or real, if real, or both if the lex loci contractus should so ordain. Mr. Justice Story, in Pope v. Nickerson,^ after stating the doctrine upon which the court proceeded in these cases, expressed his dissent to it. " Assuming," he observed "the general rule to be as they declare it, to what cases does it properly apply ? Certainly to those, and those only, where the agent possesses full authority to make the particular contract. If his authority is restricted or limited, then if he exceeds the powers conferred on him, there is no binding obligation whatsoever upon the principal, and the contract is as to him a nullity. If the principal had himself been in the country, he might, if he chose, have made a more expanded contract than his agent was authorized to make, with all its restrictions and none other. This would depend solely upon his own pleasure. But when he has re- stricted the authority of his agent, in terms, to certain limits, or those limits result from the law of his own country, where the authority is given or is to be interpreted, surely it cannot be pretended that the contract of the agent in a foreign country, excluding those limits, has the consent or authority of the principal. It appears to me, that the leading error in both of those decisions is, that in both those cases, the rights and powers of the master to contract were treated exactly as if they were equal to, and coincident with, those of the owners, if the latter had been on the spot. Wliereas, the rights and powers of the master, so far from being coex- tensive with, and equal to, those of the owners, are in most cases far short of theirs, and are subject at all times to the control and restrictions which the owners personally, or the law of their country impose or recognize." <^ 238. If the master expend money of his own for necessary repairs and supplies he has the right to call on the 1 3 Story, 4G5, 481. 180 • MARITIME LAW. [CH. VI. owner to repay him.i And to the extent of such expenditure he may detain the freight until he is fully paid. He stands in the same position with respect to the freight that a factor or consignee occupies with respect to the goods of his prin- cipal or consignor, for whom money has been advanced, or any liabilities incurred, in consequence of the employment or consignment. Having contracted and rendered himself per- sonally liable for necessaries furnished the ship, the law gives him a lien on the freight coextensive with his liabilities to the ship's creditors. 2 In England, after conflicting adjudications, the question was finally put at rest in Westminster Hall, by the decision in the case of Smith v. Plummer.^ It was there held that as no lien upon the ship could arise in favor of the master for advances made or responsibilities incurred for the benefit of the ship, it followed that he had no lien on the freight, the latter being incidental to the former. But the doctrine of our law is directly opposite. It is clear that in this country the master has a lien on the freight and cargo, for his necessary advances made and responsibilities incurred in a foreign port.^ But whether he has such lien on the ship is still unsettled. In the case of the ship Packet,^ it was held that the master has a lien on the freight for all the advances which he may make on account of the ship, and 1 Abbott on Shipping, p. 176. 2 Lane v. Penniman, 4 Mass. 92 ; Lewis v. Hancock, 11 Mass. 72 ; Shaw V. Gookin, 7 N. Hampshire R. 19 ; Vanbokkelin v. Ingersoll, 5 Wend. 314. See also White v. Baring, 4 Esp. 22. The rule laid down by Lord Kenyon, in the case of White v. Baring, is not now the doctrine of the English law. The case of Smith v. Plummer, 1 Barn. & Aid. 575, held, as stated in the text, that as the master had no lien on the ship for demands made for the benefit of the ship, it followed that he had no lien on the freight, the latter being incidental to the former. The right to receive the earnings of the ship followed, it was said, the right to the ship itself. 3 1 Barn. & Aid. 575. 4 In the case of Drinkwater v. Brig Spartan, Ware's R. 149, it was held that the master not only had a lien on the freight for his necessary disburse- ments for incidental expenses and the liabilities which he contracts for these expenses during the voyage, but also for his own wages. 5 3 Mason, 255. CH. XI.] AUTHORITY OF THE MASTER, ETC. 181 can intercept it, when earned, to reimburse himself. It was also the evident inclination of the court to go further, and admit the master's lien on the ship for the same object. It was said that the maritime law of foreign countries gave him such a lien, and that there was much reason for upholding it. It was conceded that the common law denied him any such lien ; but on the other hand, it was said that the courts of equity had shown a strong inclination to sustain it, and that the courts of admiralty in this country, on several occasions, had recognized its existence, and enforced it. In the case of Gardner v. The Ship New Jersey,^ it was said, that if the law made the master answerable to those furnishing supplies by his order, and to the officers and mariners of the ship, he is indemnified by such claims being attached as liens on the ship, or the moneys produced on sale, in addition to the owner's responsibility. And Judge Peters allowed the master to retain out of the proceeds of the ship the amount which he had advanced for seamen's wages, supplies, and pilotage, but he decided against the claim of the master for his own wages. In the case of Bokkelinv. Ingersoll,- in the Court of Errors of New York, it was said by the chancellor in deliver- ing his opinion, that the advances and responsibilities, necessarily made and incurred by the master in a foreign port, for the safety of the ship, or the successful termina- tion of the voyage, depended upon a different principle from that which is applicable to his wages. The agreement for wages is a personal contract with the owners, and there are no substantial grounds of equity for giving him a preference over other creditors. Any one who is sufficiently intelligent and discreet to discharge the responsible duties of master, must be perfectly competent to provide for his own wages in the contract, and the same reasons may be urged for refusing him a lien for his advances in a home port, when his owners are present or he can readily communicate with 1 1 Teters, Adm. R. 227 a 5 Wend. 311. MAR. 16 182 MARITIME LAW. [CH. VI. them. On the other hand, the reasons which render it proper for him to hypothecate the ship and freight to procure the necessary supplies, occasioned by some unforeseen dis- aster, in di foreign port, and which by the maritime law give a lien upon both, to persons who have furnished those sup- plies, or whose property has been taken for the purpose, in the nature of a forced loan, seem to be equally applicable to the case of the master when the requisite supplies have been purchased from his own property or on the pledge of his individual credit. It certainly is the more reasonable doctrine to give to the master, who has made repairs or furnished supplies with his own funds or by the pledge of his personal security, the same lien that exists in favor of third persons, for the same object. " In many foreign ports," said Lord Eldon, in the case of Hussey v. Christie,^ " the master may be able by his own means to do the repairs, but he may be without the means of finding any one in another country, who will take the credit of the ship or the owners. It would be directly against the authority of the case in Peers Williams,^ to hold that the captain can have, under these cir- cumstances, no lien." 1 13 Vesey, 594. In this case, it appeared that the master, in the course of the voyage, (he was employed in the South-Sea fishery,) for the necessary repairs and furniture of the ship, expended a considerable sura of money, and gave his own promissory notes and drew bills of exchange upon his owners. On his return to London, finding that the owners had become bankrupt and that the bills were dishonored, and that being obliged to discharge some of them and answerable for the others, he endeavored to retain the ship in his possession as a security, but was forcibly deprived thereof by the as- signees of the bankrupt, or other persons claiming an interest in the ship and cargo. Upon this he instituted a suit against these persons in the Court of Chancery, to restrain them from disposing of the ship, until his claim should be satisfied. And on his part it was contended that he had a lien upon the ship for the money thus expended and debts incurred by him. The Lord Chancellor, considering this to be properly a legal question, sent the case to the Court of King's Bench, for the opinion of the learned judges of that court, and they were all of opinion that the master had not a lien upon the ship. Abbott on Ship. p. 185. See same case, 9 East, 426. 2 Watkinson v. Barnardiston, 2 P. Wms. 367. CH. VI.] AUTHORITY OF THE MASTER, ETC. 183 <§> 239. By the civil law repairs and necessaries form a lien on the ship, following her into the hands of purchasers, in different countries, for different periods.^ And by that law it is immaterial whether the repairs be made or the sup- plies furnished at home or abroad.- Such was the doctrine of the maritime courts of England, until after a long contest it was finally overthrown by the courts of common law, and by the highest judicature in the country, the House of Lords, in the reign of Charles the Second.^ From that period until the statute of 3 and 4 Victoria, ch. 65, •§> 6, it continued to be the settled law of England, that there was no lien on a ship for repairs and necessaries furnished, except in favor of the shipwright, who had repaired her, and not parted with the possession. In that case he was entitled to retain pos- session, until he was paid for his repairs, like any other artificer.'^ The doctrine of our law upon this subject is in accordance with the English law, anterior to the interposi- tion of Parliament in the present reign, so far as it applies to a domestic ship. In the case of materials furnished or repairs done to a foreign ship, the maritime law has given a specific lien, which may be enforced by a suit in the admi- ralty. But in the case of a domestic ship it is the settled doctrine of the common law, which is the municipal law of most of the States of the American Union upon this subject, that mechanics and material-men have no lien upon the ship itself for their demands, but must look to the personal secu- rity of the owner. The reason assigned why the common law gives no lien upon a domestic ship is, that the work- manship generally bears a very small proportion to the value of the subject on which it is bestowed, and it is considered a matter of public policy, that ships should be employed, 1 Dig. 14, i. 1 ; Ibid. 42, 5, 26, 34. 2 Ibid. 3 The Zodiac, 1 Hagg. Adm. R. 320, 325. 4 Franklin v. Hosier, 4 B. & Aid. 311 ; Abbott on Ship. p. 181 ; 3 Kent's Com. 168. Provision is now made for the security of material-men by an Act of Parliament, passed in 1810. 184 MARITIME LAW. [CH. YL. since they are built "to plough the seas, not to rot by the wall." It should be observed, that the lien of the material- man is not confined exclusively to the ship, but extends to the freight, and he may include both in a proceeding in rem} It should also be observed, that a person who lends money to be employed in the repairs of a vessel, or to furnish her with supplies, has the same privilege against the vessel and freight that material-men have. He is considered as giving credit both to the ship and to the owners. The ship is hypothecated to him for his security, and he may maintain in the admiralty either a libel in rem against the vessel and freight, or a libel in personam against the owners.^ <§) 240. The doctrine of American law upon the subject of maritime liens, although it had been expressed by the admi- ralty courts, in some of the earlier cases,'^ was reasserted with singular precision by the Supreme Court of the United States in the case of The General Smith.^ The facts upon which the judgment was pronounced, were briefly these. The General Smith was an American ship, and formerly the property of Mr. Stevenson, a merchant of Baltimore, who was a citizen of the United States. Whilst the ship belonged to him, the libellant, a ship-chandler of Baltimore, furnished for her use various articles of ship-chandlery to equip and furnish her, it being her first equipment to perform a voyage to a foreign country, namely, to Rotterdam and Liverpool and back to Baltimore. The ship departed from Baltimore on her voyage without any express assent or permission of the libellant, and also without objection being made on his part, and without his having attempted to detain her or en- 1 Shepherd v. Taylor, 5 Peters, R. 676,711, 12th Rule of Adm. Practice. 2 Davis V. Child, Davies, R. 71, 12th Rule of Adm. Practice. 3 The Brig Eagle, Bee's Adm. R. 78 ; Woodruffs. The Levi Dearborne, 4 Hall's Law Jour. 97. 4 4 Wheat. 438 ; see also St. Jago de Cuba, 9 Wheat. R. 409 ; Davis v. New Brig, 1 Gilpin's R. 473 ; The Brig Nestor, 1 Sumn. 74 ; The Schooner Marion, 1 Story's R. 68 ; Harper v. New Brig, 1 Gilpin's R. 536. CH. YI.] AUTHORITY OF THE MASTER, ETC. 185 force any lien which he had against her for the articles fur- nished. The ship continued to be the property of Stevenson, the merchant, during the said voyage, and after her return, it was not sold or disposed of in any way by him until the 3d day of October, IS 16, when, finding himself embar- rassed in his pecuniary affairs, and obliged to stop payment, he executed an assignment to the claimants of his property, including the ship General Smith, in trust for the peiyment of all bonds for duties due by said Stevenson to the United States, and for the payment and satisfaction of his other creditors. Another libel was filed by the administratrix of Thomas Cockrill, deceased, for iron materials and work fur- nished to prepare the said ship for navigating the high seas. The District Court of Maryland ordered the ship to be sold, and decreed that the libellants should be paid out of the pro- ceeds the amount of their demand for materials furnished. The Circuit Court affirmed this decree pro forma, and the cause was brought by appeal to the Supreme Court. Here it was declared that the admiralty rightfully possessed a ge- neral jurisdiction in cases of material-men, and that had the suit been in personam, there would have been no hesitation in maintaining the jurisdiction of the District Court ; but when the proceeding is in rem, to enforce a specific lien, it is incumbent on those who seek the aid of the Court, to establish the existence of such lien in the particular case. That where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, fol- lowing the civil law, gives the party a lien on the ship itself for his security, and he may well maintain a suit in rem in the admiralty to enforce his right. But in respect to repairs and necessaries in the port or state to which the ship be- longs, the case is governed altogether by the municipal law of that State, and no lien is implied unless it is recognized by that law. Now, it has been long settled, whether origi- nally upon the soundest principles it is now too late to inquire, that by the common law, which is the law of Mary- 16* 186 MARITIME LAW. [CH. VI. land, material-men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until he is paid for the repairs any more than any other artificer. But if he has once parted with the possession, or has worked upon it with- out taking possession, he is not deemed a privileged creditor, having any claim upon the ship itself. Without, therefore, entering into a discussion of the particular circumstances of the case, the Court were of opinion, that there was not, by the principles of law, any lien upon the ship. <§, 241. It must be understood that, according to the mari- time law, it is not in the power of any one to give an im- plied lien on a ship, but the shipmaster. The necessities of commerce require that, when remote from his owner, he should be able to subject his owner's property to that lia- bility without which it is reasonable to suppose he will not be able to pursue his owner's interests. But when the owner is present the reason ceases, and the contract is inferred to be with the owner himself, on his ordinary responsibility, without a view to the vessel as the fund from which com- pensation is to be derived.! ^^d it must be further under- stood, that when the domestic ship appears in the guise of a foreign ship, the lien of the material-man will attach. If the owners falsely hold her up as a foreign ship, whilst in the home port, there is no reason why she should not be subjected to the liabilities which she has incurred in that character. The privilege of the material-man depends not on her actual character, but on his knowledge and belief of that character. And the owners are effectually precluded by their own act from denying her foreign character.^ When the lien of the material-man has once attached, and no act 1 The St. Jago de Cuba, 9 Wheat. R. 409. 2 Ibid. CH. VI.] AUTHORITY OP THE MASTER, ETC. 187 has been done by the party inconsistent with its present existence, it is protected even against the title acquired by the government by forfeiture, provided the creditor had no knowledge of the offence by which the forfeiture was in- curred,^ and against the title subsequently acquired by a bond fide purchaser without notice, ^ and against a prior bot- tomry-bond,'^ and against a judgment in favor of the United States.-^ <§. 242. The common law, as we have observed in a pre- ceding section, is the municipal law of most of the States as to supplies furnished to domestic ships. But the laws of several of the States have made provision for the security of material-men. By an act of the legislature of Pennsylva- nia, it is provided that ships and vessels of all kinds, built, repaired, or fitted within the Commonwealth, shall be sub- ject to a lien for all debts contracted by the master or owners thereof for work done, or materials found or provided in the building, repairing, filling, or furnishing, or equipping of the ,same, in preference to any other debt due from the owners thereof. A similar provision in the statute laws of New York, gives a lien to shipwrights, material-men, and suppliers of ships, for the amount of their debts, whether the ships are owned within the State or not. This lien, existing by the local law, may be enforced by a suit in rem in the admi- ralty. The jurisdiction is concurrent with the jurisdiction of the State courts.^ The lien is enforced, because it is of a maritime nature, and the moment its existence is esta- blished, the jurisdiction of the admiralty attaches to it propria vigor e.^ 1 The St. Jago de Cuba, 9 Wheat. R. 409. 2 The Barque Chusan, 2 Story's R. 45G. 3 The Jerusalem, 2 Gallison's R. 345. 4 The Scattergood, Gilpin's R. 1. 5 The General Smith, 4 Wheat. 438, note ; Davis v. A New Brig, 1 Gil- pin, 473 ; The Schooner Marion, 1 Story, C. C. G8. 6 Ibid. Peyroux v. Howard, 7 Peters, 324. 188 MARITIME LAW. [CH. VI. <§, 243. It was formerly held, that a party m whose favor a lien would otherwise have existed, waived it when he entered into an express contract. No person can in any case, says Duller, retain, where there is a special agreement, be- cause then the other party is personally liable. ^ In that case, as the law was formerly interpreted, if the party wished to retain his lien, he should specially reserve it in his agree- ment. And Lord Ellenborough, in the case of Stevenson v. Blakelock,^ laid down the general rule to be, that when there is an express antecedent contract between the parties, a lien, which grows out of an implied contract, does not arise. And the doctrine declared in this case by Lord Ellenborough, was strictly in accordance with the general current of the Eng- lish decisions. But it was thought unreasonable, and it has since been deliberately overthrown. In Hutton v. Bragg,^ it was settled, that an express contract for a specific sum is not of itself a waiver of the right of lien ; but to produce that effect, the contract must contain some stipulation incon- sistent with the continuance of the lien, or from which a waiver of it may be fairly inferred. And such is now the established doctrine in this country. There were, however, several early cases in the admiralty, in which the doctrine of the English law as formerly declared, was adhered to. Thus, in ea; j9a?-ie Lewis,'* Mr. Justice Story held, that where the parties enter into a personal contract for a specific sum, it is a discharge of the implied lien resulting by operation of law. He observed, however, that the authorities, which had never been doubted or denied, seemed unreasonable, and that upon principle he could not say that a personal contract was a waiver of the lien. 1 Nisi Prius, 45. 2 1 M. & S. 535, 543. 3 2 Marsh. R. 339, 345 ; S. C. 7 Taunt. R. 14 ; see also Phillips v. Rodie, 15 East, R. 547 ; Burley v. Gladstone, 3 M. & Selw. 205 ; Cowell v. Simpson, 16 Ves. 275. 4 2 Gallis. 483 ; see also Murray v. Lazarus, 1 Paine's C. C. R. 576. CH. VI.] AUTHOKITY OF THE MASTER, ETC. 189 <§. 244. The doctrine, as now recognized, being that an express contract for a specific sum, is not of itself a waiver of the right of lien, it becomes important to inquire in what cases a party who otherwise would have a specific lien, will be held to have waived it. It is conceded, that in every case where there is an exclusive personal contract there is no lien ; because in that case the credit is given to the master or owner, and not to the ship. And the party cannot subse- quently, when he finds that the security which he delibe- rately elected to take is worthless, resort to the ship. Yet, even here he may maintain a suit against remaining proceeds in the registry, although he could not originate a suit against the ship itself.^ Parting with the possession of the thing upon which the lien attaches, is a waiver of it by the common law. Giving credit is also considered, both by the common law and the civil, as inconsistent with the existence of a lien.- In the case of Raitt v. Mitchell,^ Lord Ellenborough held, that a lien is wholly inconsistent with a dealing on credit, and can only subsist where payment is to be made in ready money, or there is a bargain that security shall be given the moment the work is completed. He said there could be no lien without an immediate right of action for the debt, and that did not accrue until the period of credit expired. The ground upon which this doctrine rests is very evident. In the first place, at common law, as we have already observed, a lien does not exist independently of possession. When the party parts with the possession, he parts with his lien. Hence, when the artificer, a shipwright for instance, under- takes to repair a ship and receives possession, and agrees to give credit for a certain period, the giving of such credit repels the presumption of a right of lien, for it cannot be supposed that the parties intended that the shipwright should retain the possession of the ship and prevent her employ- 1 The John, 3 Rob. 234 ; Zanc v. The Brig rrcsident, 4 Wash. C. C. R. 453; Gardner v. The Ship New Jersey, 1 Peters's Adm. R. 223. 2 Dig. Lib. 18 tit. l,c. 19. 3 4 Camp. 146. 190 MARITIME LAW. [CH. VI. ment by the owner during the whole time of the credit. The law, therefore, in such cases, interprets the contract between the parties upon rational principles, and deems the lien waived by consent.^ In equity and at common law taking bills of exchange for the sum due will repel the im- plication of lien. Because a right to detain for the future event of bills is inconsistent with giving bills.^ <§> 245. We have thus stated several cases, in which a lien will be presumed, at common law, to be waived. The mari- time law, in the same cases, except perhaps in the last, pro- ceeds upon a different principle, and presumes the lien to exist. The dissimilarity in the doctrine of the two systems of law arises from this, that by the maritime law a lien may exist, and usually does, independently of possession. And as parting with the possession does not destroy the lien, it follows that giving credit, either indefinitely or for a fixed period, is no extinguishment of it. There is no inconsistency in giving credit for supplies, and at the same time retaining the lien on the ship for the value of those supplies. In fact, it would be utterly inconsistent with the professed object of all such supplies, to retain the possession. That object is to procure necessary repairs and supplies for the purpose of completing the voyage. But how is the voyage to be com- pleted, if the material-man is to hold possession of the vessel in order to secure his lien for the necessary repairs and sup- plies ? The maritime law presupposes a credit given, a de- lay of payment, an intentional postponement of the right to enforce the claim in rem, at the same time it creates the lien. It would be absurd to declare that the material-man should have a lien on the ship for his supplies, whenever, in case of necessity, the master, not having funds, is compelled, in order to proceed on his voyage, to obtain such supplies, and yet at the same time to declare, that if the ship left the port 1 The Brig Nestor, 1 Sumn. R. 73, 80. 2 See Brooks v. Bryce, 26 Wend. 367. CH. yi.] AUTHORITY OF THE MASTER, ETC. 191 without payment of his demand, the lien sliould be extin- guished, when the very case supposed is, that the master has no immediate means of payment. How is he to pay with- out funds ? And if he has funds, what use is there in the enhanced expense of a credit ? If he has funds he will pay at once, and have the work done, or supplies furnished at cash prices. It is only when his funds fail, that he will ask a credit for the owners upon the security of the ship. The effect of denying the lien in such cases would be to compel the master to break up the voyage, or to resort to the extra- ordinary expedient of a bottomry-bond upon onerous inte- rest, to the serious injury of the owner. The maritime law, in cases of material-men, as in other cases, where it gives a tacit hypothecation or lien, proceeds upon a different princi- ple. It gives the lien upon the ship as an auxiliary to the personal security of the owner. It does not require the lien to be enforced before the voyage is completed. It allows the party to give credit, because it is for the general benefit of navigation and trade. ^ <§> 246. What will constitute a reasonable time for the en- forcement of a maritime lien, after the debt is due, and the credit, if any, has expired, must depend upon the circum- stances of each particular case, and is not a point susceptible of any definite or universal formulary of interpretation.- The admiralty will not, however, sit for the purpose of enforcing stale claims. It requires, in parties who seek its aid to enforce specific liens, reasonable diligence, making, in considering the question of diligence, all proper allowance for circumstances which have interposed to create delay, and over which they had no control. ^ <§) 247. Whether the acceptance of a negotiable promissory note is a waiver of a lien depends, as it is not a maritime 1 The Brig Nestor, 1 Sumn. R. 73, 84. 2 The Bark Chusan, 2 Story's H. 455, 4G'J. 3 The Brig Nestor, 1 Surnn. R. 73. 192 MAEITIME LAW. [CH. VI. contract, upon the lex loci contractus. If by the local law, the note is deemed an absolute payment of the debt, then the lien is discharged. Bat, on the other hand, if by the lex loci contractus, the note is but a conditional payment of the debt, and the creditor at the hearing offers to surrender it, the lien exists, and may be enforced in the admiralty. ^ In the case of Ramsay v. Allegre,^ the plaintiff very properly contended that a suit in rem could be maintained, not- withstanding the acceptance of a negotiable promissory note as conditional payment, that being not an extinguishment of the debt, but only a suspension of the remedy, during the time allowed for its payment, and that if the note was un- paid, the party might resort to his original right of action, as if no note had been given. But the court did not deem it necessary to consider the general question, whether the juris- diction of the court was waived by the appellant's taking the note as conditional payment, because it did not appear by the record that the note had been tendered to be given up, or actually surrendered, and hence the libel could not be maintained. Where a bill of exchange is accepted, not as absolute payment of the debt, it must be governed, I presume, by the same rule that is applicable to the case of taking a negotiable promissory note as conditional payment. If the bill is dishonored, then the holder stands precisely on the same ground as if no bill had been given. There certainly is nothing in the case of The William Money ^ inconsistent with this view of the subject. There, a mariner was tendered his full wages in cash, but being desirous to remit money to England, the ship's agents at Calcutta, at his request, gave him a bill for £40, payable six months after sight, on the owners in London. The owners in the meanwhile became bankrupt, and the bill was dishonored. On these facts appearing. Lord Stowell said that the seaman might have taken his wages in money at Calcutta, but instead of money 1 The Bark Chusan, 2 Story's R. 470. 2 12 Wheat. R. 611. 3 2 Hagg. Adm. R. 136. CH. YI.] AUTHORITY OF TUE MASTER, ETC. 193 he preferred a bill of exchange as an accommodation to him- self ; he then made his election and must stand by his risk. The decision proceeded \vholly on the ground that there was an election between the money tmidered and the bill of ex- change. The same result might follow, as in this case, if the party in whose favor a lien exists should take a bill of exchange on a firm not connected with the ship, and upon the same ground that he preferred and had taken other secu- rity, and thereby had lost his remedy against the ship. I say the same result might follow because it might be deemed an absolute payment of the debt. But it would be other- wise, I apprehend, where the bill is on the owners them- selves, without any previous tender of cash payment. The remedy, in that case, would be suspended, certainly, until the event of the bill could be known, but if it became value- less then the remedy against the ship revived and might be enforced. <§. 24S. We have seen that the jurisdiction of the admiralty with respect to repairs upon a domestic vessel, where the proceeding is in rem, depends upon the municipal law. If no lien is allowed by that law, then a suit in rem cannot be maintained. But with respect to repairs upon a foreign vessel, and every vessel is foreign when in the ports of a State to which it does not belong, the jurisdiction depends, in the absence of legislation by Congress, upon the general maritime law. It is independent of the local law, and cannot be limited or governed by it. The States have no power to enact laws restricting the lien which the maritime law gives foreign vessels, or which are in any manner incon- sistent with it. Hence a State law which declares that the lien on a foreign vessel shall be deemed to be waived, if not enforced before the vessel leaves the State, is treated by the courts of the United States as absolutely null and void. In the case of The Bark Chusan,' which belonged to owners residing > Story's R. 455, 462, 404. MAR. 17 194 MARITIME LAW. [CH. VI. in Massachusetts, and was libelled for repairs done in New- York, this subject was discussed at length. It was con- tended by the claimants that the contract and lien were to be governed by the law of New York, by which the lien ceased when the vessel left the State, that the local law applied to both foreign and domestic vessels, and that it was competent for a State to pass laws regulating the maritime lien on foreign vessels. Mr. Justice Story, in delivering the opinion of the court, said, " This statute is, as I conceive, perfectly constitutional, as applied to cases of repairs of domestic vessels, that is, of vessels belonging to the ports of that State. And if the present were the case of materials and supplies furnished to a ship belonging to New York, and the lien was sought to be enforced in the admiralty courts of the United States, I should have no doubt that the lien created by the law of that State, and not existing by the general maritime law, must be governed throughout by the law of that State, and that when the ship left the State, it would cease. But in cases of foreign ships and the supplies fur- nished to them, the jurisdiction of the courts of the United States is governed by the Constitution and laws of the United States, and is, in no sense, governed, controlled, or limited by the local legislation of the respective States. The Con- stitution of the United States has declared that the judicial power of the national government shall extend ' to all cases of admiralty and maritime jurisdiction,' and it is not compe- tent to the States, by any local legislation, to enlarge, or limit, or narrow it. In the exercise of this admiralty and maritime jurisdiction, the courts of the United States are exclusively governed by the legislation of Congress, and in the absence thereof, by the general principles of the maritime law. The States have no right to prescribe the rules by which the courts of the United States shall act, nor the juris- prudence which they shall administer. If any other doctrine were established, it would amount to a complete surrender of the jurisdiction of the courts of United States to the fluctuating policy and legislation of the States. If the latter CH. VI.] AUTHORITY OF THE MASTER, ETC. 195 have a right to prescribe any rule, they have a right to pre- scribe all rules, to limit, control, or bar suits in the national courts Suppose a State legislature should declare that there should in future be no lien of seamen for their wases on any ship foreign or domestic, or no lien for salvage on any ship foreign or domestic, will it be pretended that such a law would be obligatory on the courts of the United States in the exercise of admiralty and maritime jurisdiction ? If it would be, a more forcible and complete device to dry up and extinguish the jurisdiction of the courts of the United States in admiralty cases could scarcely be imagined. The truth is that the admiralty and maritime jurisdiction of the courts of the United States, given by the Constitution, covers not merely the cognizance of the case, but the jurisdiction and principles by which it is administered. It covers the whole maritime law applicable to the case in judgment, without the slightest dependence upon or connection with the local jurisprudence of the State upon the same subject. The subject-matter of admiralty and maritime law is withdrawn from State legislation, and belongs exclusively to the national government and its proper functionaries." "^ 249. Where the local law gives a shipwright a lien for materials furnished and labor bestowed in the construc- tion of a vessel, the admiralty has jurisdiction to enforce it by process in rem, even before the vessel is launched or employed in maritime affairs. The jurisdiction depends not on the locality but the subject-matter. And all civilians and jurists agree that contracts for the building of ships stand upon precisely the same ground as contracts for repairing, supply- ing, and navigating ships. They are maritime contracts, for maritime service, and the jurisdiction as rightfully at- taches in the one case as the othcr.^ It must appear, how- 1 The Jerusalem, 2 Gallis. 317; De Lovio v. IJoit, Ibid. M^t; Davis i'. A New Brig, Gilpin's R. 473 ; Read v. The Hull of a New Rrig, 1 Story's R. 244. 196 MARITIME LAW. [CH. VI. ever, that the vessel is of the size and build fitted for mari- time employment, and that her business is to be maritime navigation, or at least navigation upon waters which are, in some part thereof, tide-waters, or navigable to and from tide- waters. It is not every case where a lien exists by the local law or the general law, that the admiralty professes and exercises jurisdiction ; the lien must arise from some business, employment, or work and labor connected with maritime affairs, or navigation, or shipping. ^ 1 Read v. The Hull of a New Brig, 1 Story's R. 244. CH. Til.] BOTTOMRY AKD RESPONDENTIA BONDS. 197 CHAPTER VIT. OF BOTTOMRY AND RESPONDENTIA BONDS. <§, 250. A BOTTOMRY-BOND is a contract for a loan of money on the bottom of a ship, pars pro toto, as a security for repayment. It is moreover stipulated that if the ship is lost. in itinere, by any of the perils enumerated in the contract, the lender shall also lose his money ; but if the ship shall arrive safe, then he shall be paid back his principal and also the interest agreed upon, called marine interest, however this may exceed the legal rate of interest. In the Roman law, which treats largely of these contracts, it is called /cc/nis naii- iicum, or usura maritima, and the high interest which is permitted and which is to reimburse the lender, (who in all cases and not the borrower, is to run the risk,) is therein de- nominsited periculi pretium, or the price of the hazard which the lender incurs.^ «^ 251. A bottomry-bond is a contract not of a universal nature and form, but depending upon the particular form of the instrument, varying in different countries, and variously modified by the municipal laws. Although usually given for the necessities of the ship, or for the cargo, or for the voyage, and supposed to be limited to those purposes ; yet in the case of the Brig Draco,^ it was held to be by no means necessary to the validity of a bottomry-bond, when made by the owner, that the money should be intended or employed for the ob- jects of the voyage. The owner, it was said, could make 1 2 Marshall's Ins. 733 ; The Alias, 3 Hagg. Adm. R. 48, 53. 2 2Sumn. R. 157. 17* 198 MARITIME LAW. [CH. VII. such use of the money as he pleased, without reference to the ship. It was sufficient if the money was lent on the bottom of the ship, at the risk of the lender for the voyage. The true definition of a bottomry-bond was said to be, a contract for a loan of money on the bottom of the ship, at an extraordinary interest, upon maritime risks, to be borne by the lender for the voyage, or for a definite period. <§, 252. The question may well be asked upon what grounds can the admiralty assume jurisdiction of a contract of the character of the so-called bottomry-bond, in the case of the Brig Draco. It was a transaction begun and completed on land. It had no reference whatever to maritime business. The money was loaned '' not to fit out, or repair or supply the brig, or to purchase a cargo for her, or for any purpose connected with the voyage, or navigation of the brig, but for the general purposes of" the borrower. How can a con- tract of this nature be styled a bottomry-bond, so as to give the admiralty rightful jurisdiction over it ? Can it in any proper sense be said to fall within the definition of a mari- time contract ? A bottomry-bond is founded on the necessi- ties of navigation and the exigencies of commerce. The extraordinary interest is allowed for the benefit of com- merce and to enable maritime adventures to be prosecuted. But when such interest is reserved, and the money is neither employed nor designed to be employed with reference to the ship nor the voyage, does not the very foundation of a bot- tomry-bond fail ? The lender, in such a case, may be pro- tected against any liability arising from the municipal laws against usury, because he becomes the insurer of the ship and his contract " runs a desperate contingency of winds, seas, and enemies," which makes it " a fair contract on a real hazard." It does not, therefore, fall within the statute of usury. As between the parties such a contract is doubt- less binding, but so far as it creates any lien on the vessel which may be enforced in the admiralty, or which can affect the rights of third persons, without notice, as a bond fide purchaser for instance, there would seem to be no sufficient CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 199 grounds, either of principle or authority, upon which to up- hold it. Such a contract may constitute, under the muni- cipal law, a mortgage. In that case it must stand or fall upon the principles that appertain to mortgages. But it is clear that of mortgages of the character indicated, the admi- ralty has no rightful jurisdiction. ^ <§> 253. A bottomry-bond may be on time as well as on a specific voyage. It is sufficient if the money be lent upon the bottom of the ship, at the risk of the lender, for the stipulated period. ^ When made by the owner it is immate- 1 Vide The Highlander, 2 Wm. Rob. 1 10 ; The Ship Medora, 2 W. & M. 107; see also upon this subject, 1 Conkling's U. S. Adm. 216; also The Duke of Bedford, 2 Hagg. Adm. R. 294. 2 The Brig Draco, 3 Sumn. Rep. 157 ; The Ship Fortitude, 3 Id. 228 ; Thorndike v. Stone, 11 Pick. 183. In this latter case, a bond was given for money on bottomry, to run for three years at twelve per cent, interest. The bond included the freights of the ship. The obligor was to pay the obligee, from time to time, half the ship's gross earnings, and to make other pay- ments if he chose on the bond, and the interest was to cease on the amount of principal so paid ; the obligee was to retain all payments so made whether the ship should be lost or not, and the ship and freights were to stand hypothe- cated for the unpaid balance, and at or before the end of three years the obligor was to pay the remaining sum, with the stipulated interest, deducting such sums as the obligee would be held by law to pay for general average, &c. , dur- ing the three years, in the same manner as if he had been an underwriter, and in case of a total loss by perils insured against, in a form of policy referred to, the obligor was to pay the obligee such salvage as he would be entitled to if he had been the underwriter in such policy, and the obligor was to pay the obligee half the gross earnings not before paid over, deducting such sums as the obligee would be held to pay for general average, &c. The obligor also gave a mortgage of real estate to the obligee to secure fulfilment of the conditions of the bond. It was objected to the validity of this bond lliat the payment of the money borrowed, was secured in such a manner as to make it a certainty, that the lender would receive his money with twelve per cent; that it was secured by a mortgage of real estate, as well as by a mort- gage of the ship, and by an assignment of half the freight and earnings for the term of the loan, and that the loan was upon time and nut for a voyage as usually made. But it was held to be a sufficient answer to these objec- tions, that if the ship should be lost within the time of three years, for which the money was lent, the bond-holder was to lose all the money which should 200 MARITIME LAW. [CH. VII. rial whether it be in the home or a foreign port.i Bat the case is widely different when the money is borrowed on bot- tomry by the master. It must be in a foreign port, and it must be shown that the advances were made for repairs or supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship. And no presumption should arise in the case, that such repairs or supplies could be procured upon reasonable terms, with the credit of the owner, independently of such hypothecation.^ If the owners of the vessel are present, the power of the master to hypothe- cate ceases. If, however, only a minority of them are present and they assent to the hypothecation, or unreasona- bly dissent, then the master's authority remains good.^ In then be due upon the bond. Putnam, J., said : "It is the essence of the contract of bottomry and respondentia, that the lender runs the maritime risk to be entitled to the maritime interest. The rate of interest and the manner of securing the payment of what may become due upon such con- tract, are to be regulated by the parties. The court regards such considera- tions only for the purpose of ascertaining whether they were colorably put forth to evade the statute of usury." i Brig Draco, 2 Sumn. R. 157. It was said by Chase, J., in delivering the opinion of the Supreme Court of the United States, in the case of Blaine v. The Ship Charles Carter, 4 Cranch, 328, that " in the case of a bottomry-bond executed by an owner in his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottom, for it is in his power to execute an express transfer or mortgage." This, however, was a mere dictum, the point not being in judgment. In the case of Wilmer v. The Smilax, 2 Peters's Adm. Rep. 295, note, the District Court of Maryland sustained the admiralty jurisdiction upon a bottomry-bond given by the owner of the vessel in the home port. The same principle was recognized in the case of Cornish v. The Murphy, 2 Browne's Civ. and Adm. Law, p. 22. And in the case of The Mary, 1 Paine, 671, Mr. Justice Thomp- son sustained a bond given by the owner in a foreign port and intimated an opinion that the admiralty iad the same jurisdiction when the bond was made in the home port. In the case of the Brig Draco, 2 Sumn. 157, Judge Story said he had no difficulty in overruling the objection that the admiralty jurisdiction does not extend to bottomry-bonds given by the owner in the home port, where there is an express pledge as security. See also the case of The Barbara, 4 Rob. R. 1. 2 The Sloop Mary, 1 Paine, 671 ;, 'The, Aurora, 1 Wheat. R. 96. 3 3 Kent, 172. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 201 the case of The Randolph, ^ Hopkinson, J., said: "I con- sider the residence or presence of some of the owners of this schooner, at the place where the repairs were made and the money taken up, as sufficient to destroy the validity of this bond." It should be observed that in this case, the owners of three fourths of the schooner were present, and the de- cision of the learned court must be understood with refer- ence to that fact. «§. 254. It is the vital principle of a bottomry-bond, exe- cuted by the master, that it should have been taken where the owner was known to have no credit, no resources for obtaining necessary supplies. It is that state of unprovided necessity that alone supports these bonds ; the absence of that necessity is their undoing. If the master takes up money from a person who knows that he has a general credit in the place, or at least an empowered consignee or agent, willing to supply his wants, the bottomry-bond in such a case, is a void transaction, not affecting the property of the owner, only fixing loss and shame upon the fraudulent lender ; but when honorably transacted, under an honest ignorance of this fact, an ignorance that could not be removed by any reasonable inquiry, it is the disposition of admiralty courts to uphold such bonds, as necessary for the support of com- merce in its extremities of distress, and as such recognized in the maritime codes of all commercial ages and nations.- >§, 255. The lender on bottomry is bound to exercise rea- sonable diligence in order to ascertain whether the repairs and supplies for which the master is at liberty to contract are wanting. That fact it is incumbent on him to prove. But he is not bound to show that there was a positive necessity. It is sufficient if there is an apparent necessity, so far as the lender is able upon due inquiry and due diligence to ascer- 1 Gilpin's R. 457. 2 The Nelson, I Ilagg. R. 169. 202 MARITIME LAW. [CH. VII. tain the facts.^ And when it is once established that the repairs and supplies were necessary in the sense of the law, it is incumbent upon the owners who assert that they could have been obtained upon their personal credit, to give some solid proofs in support of their assertion, unless indeed it is apparent from the circumstances of the case.^ If the exist- ence of the personal credit is made to appear and also that the lender by reasonable inquiry might have ascertained the fact, the bottomry-bond ceases to have any binding eflfect. <§> 256. If the master acts fraudulently, if he gives a bot- tomry-bond when he might have obtained the repairs or sup- plies on the personal credit of his owner, the innocent lender, and he is innocent if he uses every reasonable effort to ascer- tain the actual facts and then remains in ignorance, is not to be the victim of the fraud. And for very obvious reasons. The master appears to the world as the confidential agent of the owner, the representative of his interests in all quarters of the globe, wherever the demands of commerce call him, and as such, and within the scope of his employment, enti- 1 The Ship Fortitude, 3 Snmn. 228. Necessary repairs and supplies are such as are reasonably fit and proper for the ship under the actual circum- stances, and not merely such as are absolutely indispensable for the safety of the ship or the accomplishment of the voyage. But, said Story, J., in the case above cited, " there is a manifest difference between that necessity which will justify repairs, and that superadded necessity which will justify the giving of a bottomry-bond. To justify the giving of a bottomry-bond it is not only essential that there should be a necessity for the repairs, but that there should also be a necessity for resorting to a bottomry-bond in order to procure the proper funds to defray the expenditure. If the master has funds of his owner in his own possession, or if he can procure funds upon the per- sonal credit of the owner, he is not ordinarily at liberty to resort to a bot- tomry loan. In short, it is only when this is the only or the least disadvanta- geous mode of borrowing, that the master is at liberty to resort to it, as a dernier resort. The giving of a bottomry-bond is, therefore, properly said to be justifiable only in a case of great extremity, of urgent necessity, or of extreme pressure. In cases of bottomry the expressions may be appropri- ate, when they would be utterly inapplicable to common cases of repairs." 2 The Virgin, 8 Peters, 538, 550 ; The Ship Fortitude, 3 Sumn. 228. CH. Vir.] BOTTOMRY AND RESPOXDENTIA BONDS. 203 tied to confidence. Certainly there can be no satisfactory- reason for making an innocent party, dealing on the faith of a person thus situated and thus held out to the world, sulfer the consequences of that person's fraud instead of the owner who employs him, and thereby enables him to procure the credit. <§. 257. We have observed that the form of a bottomry- bond is different in different countries, and, it may be added, in the same country. They are usually drawn up by mer- chants who are unacquainted with technical language or the exact form of legal instruments. It is therefore the disposi- tion of admiralty courts to construe contracts of that nature liberally, and to treat them tenderly. Where the bill of bot- tomry not only pledges the ship, but in terms " grants, bar- gains and sells " her, with the usual proviso, that on payment of the money and the stipulated interest, the whole is to be void, the clause of sale does not vary the character or opera- tion of the instrument. It is still deemed to be a contract of bottomry. For such was evidently the intention of the par- ties, as well as the legal import of the language they employed express it.^ <^ 258. As the form of bottomry-bonds is different, so is their authority. In some countries they bind the owner or owners; here they do not. But although the owners are described in terms to be bound, when, by the law of the par- ticular country they cannot be bound, that is held to be no objection to what the bond can do. The courts of admiralty do not take these bonds m toto, as is done in other systems of law, and reject them as unsound in the whole if vicious in any part. But they separate the parts, reject the vicious and respect the efficiency of those which are entitled to operate.^ <^ 259. A bottomry-bond must express the obligation to be 1 Robertson v. U. Ins. Co. 2 Johns. Cas. 250. 2 The Nelson, 1 Hag?. Adm. R. IG'J; The Virgin, 8 Peters, 539. 204 MARITIME LAW. [CH. VII. on the sea risk. But this may appear from the tenor of the instrument, without being expressed in exact terms. When the money is to be paid at such a time, " after the ship arrives at her port," it is held that these terms are sufficient ; because it is saying in effect, if the ship never arrives at her port, or is lost npon her voyage, the money is to be lost, and that is a sufficient description of a sea risk.^ So also, when it is stipulated by the owner, thus : ''I bind myself, my ship and tackle, &c., to pay the sum borrowed with twelve per cent, bottomry premium in eight days after my arrival in the port of London," it is held that the words " my arrival " must be understood to mean, " my arrival with the ship, or my ship's arrival." The personal arrival of the master unconnected with the ship, is a matter which it cannot be supposed that either party contemplated, it cannot be supposed that the lenders looked to him personally or to his personal means, nor that he intended to pledge himself personally and abso- lutely for the payment without regard to the means with which he might be furnished by the ship and her freight.^ <§> 260. Various as is the form of a bottomry-bond, there are certain particulars that usually are and properly ought to be expressed, such as the occasion of borrowing, the sum, the premium, the ship, the voyage, the risks to be borne by the lender, and the subjection of the ship itself as security 1 1 Hagg. 169. In the case of the Atlas, the instrument called a bot- tomry-bond, contained an express clause, that the sum secured should be paid within thirty days after intelligence of the loss. Lord Stowell, in giv- ing his opinion, said, that it appeared to be a case which the powers of the admiralty court did not enable him to conduct to any satisfactory result either of jurisdiction or of merits, being wholly unsettled in the first of these quali- fications and very much out of the reach of legal inquiry in the latter. The suit was dismissed upon the ground that the very essence of bottomry, the sea risk, which alone could give jurisdiction to the admiralty, was wanting. On an appeal to the Court of Delegates, it was decided that as maritime interest was reserved, and maritime risk excluded from the bond, it was void. 2 Simonds v. Hodgson, 3 B. & Adol. 50,56. CH. VII.] BOTTOMRY AXD RESPONDENTIA BONDS. 205 for the payment. 1 Of course a particular description of the voyage would be impossible, when the voyage itself is not under the control of the party making the bond. And there- fore the validity of a bottomry given upon a hired transport in the service of the government, and consequently without any fixed voyage, liable to be sent to any part of the world, according to the exigencies of commerce, is very properly upheld. Very serious inconveniences, it has been said, might ensue, and the public service, instead of being bene- fited, might be subjected to very injurious obstructions, if courts of admiralty were to hold that all bottomry-bonds given on such vessels were necessarily invalid.^ «§) 261. It is an essential ingredient of a bottomry-bond, where marine interest is reserved, that both principal and interest should be put at risk. If they are payable at all events, or, if there is collateral security given for them, which is payable at all events, no matter by what name the contract is called in the instrument of writing, which con- tains it, it is not a bottomry.-^ ' Abbott on Shipping, p. 205. 2 The Jane, 1 Dods. Eep. 461. 3 Jennings v. Ins. Co. of Penn. 4 Binn. 244 ; Rucker v. Conyngham, 2 Peters's Adm. Rep. 295 ; Thorndike v. Stone, 11 Pick. 187. In the case of Jennings «. Ins. Co. of Penn. the court did not decide whether a bottomry may not be made to secure a sum of money, with legal interest, payable at all events and accomr'*"'^'^ ^^'^'^^ collateral personal security. But Judge Story is of opinion, that the authorities establish a right of hypothecation in such a case. For if d suit will lie in the admiralty for advances for the necessary supplies of the ship abroad, without any instrument upon the im- plied hypothecation of the maritime law, the mere expression of that hypothe- cation in a formal instrument would seem not to alter the nature of the juris- diction or hypothecation. Story's Notes to Abbott on Shipping, p. 203. But in answer to this view of the subject, it should be observed, that when a party in whose favor an implied lien exists, gives it up and takes an express hypothecation, the nature and character of that hypothecation remain to be determined. If it amounts to no more than a mere mortgage, then it must be governed by the principles that are applicable to mortgages. We think it clear, that in the sense of our law, an instrument of the character we are now considering does not constitute a bottomry-bond. A bottomry is founded MAR. 18 206 MARITIME LAW. [CH. VII. *§> 263. It was said, in the case of the Sloop Mary,^ that if marine interest is not expressly named in the contract, it will be presnmed to be included with the advances and in- serted in the bond as principal, for it is not supposable that the lender gratuitously took upon himself the perils of the sea. Certainly, it will rarely occur that the lender will put his money at an extraordinary risk without an ex- traordinary rate of interest. But, I apprehend, that it is not ab- solutely necessary that there should be a reservation of more than the legal rate of interest to constitute a valid bottomry- bond. The essential element is, that the money is borrowed for the purposes of the voyage, and is put at risk.^ on a sea risk, and defeasible by the destruction of the ship in the course of her voyage. " But if the bond is not defeasible by any such casualty, if it is so conditioned, that whether the ship sinks or swims, whether she arrives at her destined port or is lost in the ocean, it makes no difference," and the money is to be paid at all events, such an instrument, so conditioned,. lacks one of the principal features of a bottomry. In England, the admiralty has no jurisdiction of such a contract. The Atlas, 2 Hagg. 57. Here, where the jurisdiction is more ample, it might take cognizance of it, provided the consideration of the contract had reference to the ship or the voyage. Other- wise it would not be a maritime contract. The subject-matter for which the ship is pledged constitutes the general test of the jurisdiction, and not the thing pledged. In the case of The Ship Medora, 2 W. & M. 108, Woodbury, J. said : " At some of the custom-houses in this country and in India^ and perhaps some other places, a bond like this may be called a bottomry- bond, when on a vessel's bottom as security, and when only for legal interest, and payable at all events, though such is not the usual definition of such a bond in admiralty courts generally, and though it cannot have the hioh privileges of a real bottomry -bond." We apprehend that such an instru- ment can only be considered as a mere mortgage, and subject to all the rules that appertain to that species of security. 1 Paine's R. 670. 2 Jennings r. Ins. Co. of Penn. 4 Binn. 244 ; 2 Johns. Cases, 250. Since the text was written, I have seen the case of the Emancipation, 1 Rob. 124, 130. Dr. Lushington, in that case, said : " I am aware that it is not abso- lutely necessary that a bottomry-bond should carry maritime interest, and that a party may be content with ordinary interest ; but when the character of an instrument is to be collected from its contents, and when the argument in support of the bond is that the advance of the money was attended with risk, it is a material circumstance, that only an ordinary rate of interest CH. til] bottomry and respoxdentia bonds. 207 <§> 263. A bottomry-bond made by the master vests no absolute indefeasible interest in the ship on which it is fomided, but gives a claim upon her which may be enforced with all the expedition and efficiency of the admiralty pro- cess. The rule is expressly laid down by writers of ac- knowledged authority, and will be found consistent with the principles of the civil law, upon which the contract of bottomry is held to give a claim upon the ship.^ <§> 264. We have seen, that in the place of the owner's residence, the master has no authority to take up money on bottomry. A contract of that nature, necessary and benefi- cial as it is in most instances, under the actual circumstances of the ship and voyage, at the same time deprives the owner of a great part of the profits of a successful voyage. Hence in the home port, where the owner resides, and can exercise his own judgment upon the expediency or propriety of bor- rowing money upon such onerous terms, the master is restrained by the maritime law from acting. But the case is different where the necessity for borrowing arises in a foreign port. There, as we have already observed, the master is empowered to make a bottomry-bond, binding the interests of his owner. <§> 265. As to what is to be deemed a foreign port, in the sense of our law, so as to enable the master to hypothecate the ship, becomes at once a question of very obvious import- should be demanded." In the case of The Nelson, 1 Hagg. 181, Lord Stowell, in commenting upon the fact of the requirement of a bottomry-bond by the merchant for his security, but " without any interest whatever," ob- served, " I cannot dismiss this part of the case without adverting to a rather novel display of mercantile disinterestedness on the part of Nousc & Co. An offer of money without any interest, what can that mean ' It is the most unmercantile transaction imaginable. On 'Change, it would work the effect of the miraculous ages to offer money withont interest." 1 Blaine v. The Ship Charles Carter, 4 Cranch, 3-J8, 332 ; Abbott on Shipping, p. 197. 208 MARITIME LAW. [CH. VII. ance. In the case of Selden v. Hendrickson/ it was held by Chief Justice Marshall, that a port in one State was not the place of residence of owners who live in another State. He accordingly sustained a bottomry-bond that was made by the master in New York, the owner residing in Rich- mond, in Virginia, and having no agent in New York to act for him. In giving his opinion. Chief Justice Marshall, said, " In the absence of the owner, the master is by him- self substituted for him ; he is intrusted with the vessel for the purpose of performing the voyage, and must necessarily act for the owner in all cases where he is incapable of acting for himself. This rule has no connection with territory or with jurisdiction. In reason, then, the power should exist whenever the necessity exists ; and where there is no positive law modifying a rule thus originating, it would seem strange to insist that the power of the master to act, because the owner is absent, should not commence with his voyage, but should commence only on his passing the limits of the nation, however wide or however narrow those limits might be. It would be strange if a vessel belonging to Eastport might be hypothecated by the master at the port of St. An- drews, because the owner was absent, and yet could not be hypothecated at New Orleans, St. Louis, or the mouth of the Columbia." <^ 266, In the case of Hooper v. Whitney,2 it was held that the distinction between foreign and home ports, in rela- tion to the master's power to hypothecate the ship, has no reference to the government of the country, but to the proximity or remoteness, the facility or difficulty of commu- nication between the place where the master acts and the place where the owner resides. The doctrine declared in this case, Chancellor Kent says, is reasonable and just, whilst 1 1 Brockenbrough's Rep. p. 396. 2 This case was determined in the Commercial Court of New Orleans in 1839. Vide 3 Kent's Com. p. 172, note. en. YII.] BOTTOMRY AND RESPONDENTIA BONDS. 209 the rule adopted in the case of Selden v. Hendrickson, would, in many cases, be very unreasonable, as for instance, between the city of New York and Jersey City.^ <§. 267. We cannot but think that the rule adopted in the case of Hooper v. Whitney is founded upon the correct princi- ple. In the case of the Trident, ^ where a bottomry-bond was made in Portsmouth, in England, by the master of a ship, the owner residing in Scotland, Dr. Lushington upheld it. He observed, in giving his opinion, that in his apprehension, the validity of bottomry-bonds does not depend upon the mere locality of the residence of the owner, but upon the absolute necessity of the case ; where the master is in such a condition that it is impossible for him to meet the neces- sary disbursements, and he has no means of procuring money but upon the credit of the ship.^ 1 3 Kent's Com. 172, note. 2 1 W. Rob. R. 29. 3 In the case of The Rhadamanthe, 1 Dods. Rep. 202, the validity of the bottomry-bond was contested upon the ground that it was executed in a home port, (namely in Cork in Ireland, the owner residing in England,) and that by the general maritime law, the power of the master to execute a bottomry-bond could not be exercised except in a foreign port. Lord Stowell, in pronouncing judgment, said : " It has been already determined in this court that the ports of Ireland are for the purposes of hypothecation, to be considered as foreign ports, and nothing has occurred to alter the opinion of the court, or to mduce it to depart from the rule laid down in a former case, except the mcorporation of Ireland with this country by union. I do not know that that circumstance w^ld necessarily have the effect of producing .-ny material distmction, but I /• 1 . • 1 ;j„j ^^\r.\r^r, iinon the point, smce the case does not forbear to give a decided opinion "P"" '"^ i ' require it.'' In the case of La Isabel, 1 Pods. Rep. 273, his lordship after statin- the circumstances under which the bond was executed, proceeded .is follows- "Now what are the grounds on which the validity of this bond is contested ? Why, in the first place it is said that the master has no right to hypothecate his ship and cargo, except in a foreign country, and that the present transaction took place within tlie limits of the kingdom in whicli the owners resided. But it was not in the same province of that distracted king- dom that the transaction took place ; nor could the master, under the circum- stances in which he was placed, have applied to his owners for assistance. If indeed, he had had an opportunity of corresponding with the owners, it 18* 210 MARITIME LAW. [CH. VII. <§, 268. It seems to be taken for granted, both in the English and American decisions, that the master is restrained from giving a bottomry-bond, if he has goods of his own, or funds of his own, or personal credit to procure the necessary- repairs and supplies.! At the same time, as agent of the owner, he cannot for his security take a bottomry-bond to indemnify himself, nor is there any distinct recognition by the law of any implied lien upon the vessel for his advances. But certainly there can be no valid reason why the master should be compelled to act, to employ his own funds, goods, or credit in the service of another, and then be left without any tangible security, any claim upon the property which his funds or credit may have saved from destruction. We have seen elsewhere, that by our law, he has a lien on the freight for his security, and to that extent is protected. But in reason he is entitled to a more ample security — to a lien on the ship. •^ 269. As a general proposition, it maybe laid down, that an agent of the ship-owner cannot take the security of a bottomry-bond for his advances. It is said, and with propri- ety, that a party is not at liberty to act as the agent of the would have been his duty to have done it ; and I should, under such circum- stances, have Hbld him not to have been in that state of extreme necessity in which alone thb law allows to the master the power of hypothecation. It is true, that it is usually required as a condition necessary to the validity of bonds of this kind, that they should be executed in a foreign port, but the law does not look to the mere locality of the transaction. The validity or invalidity of the bond does not rest on that circumstance only, but upon the ex- treme difficulty of communication between the master and his owners. Occasions may arise in which the different ports of the same kingdom may be as much separated and cut off from all communication with each other, as if they were situated in the most distant parts of the globe, and such was the case with respect to the different ports of Spain at the time when this transaction took place." 1 The Zodiac, 1 Hagg. 320 ; The Sydney Cove, 2 Dods. 11 ; The Hero, 2 lb. 139 ; Rucker v. Conyngham, 2 Peters, 295; The Hannah, Hop. Rep. 176, 185 ; Cupisino v. Perez, 2 Dall. 194. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 211 owner, and at the same lime to take upon himself the character and privileges of a stranger, to act as if there were a necessity, when no necessity exists. But there are cases in which an agent may be justified in taking the security of a bottomry-bond. " It can be no part of his duty to advance money without a fair expectation of being reimbursed, and if he finds it unsafe to extend credit to his employers beyond certain reasonable limits, he may then surely be at liberty to hold hard, and to say, ' I give up the character of agent,' and, as any other merchant might, to lend his money upon bond to secure its payment, with maritime interest. If in such a case, he gives fair notice that he will not make any further advances as agent, and affords the master an opportu- nity of trying to get money elsewhere, and the master is unable to do so, but is obliged to come back to him for a supply, then he is fairly at liberty, like any other merchant, to advance the money on a security that is more satisfactory to himself." ^ «§, 270. Even where the agent continues to act in his capacity of agent, it would seem he may take a bottomry- bond, with maritime interest, to indemnify himself for ad- vances to the ship. In the case of The Hero,^ it was said that, in a case where the agent had given credit for all the disbursements of the ship, and found, contrary to his expectations, that they amounted to more than he calculated, and went beyond any advances which he might reasonably be called on to make, on the mere personal credit of his employers, then if there was no time to look to other quarters for assistance he might be possibly justified in resorting to this species of security, giving the earliest notice of the necessity under which he acted. Under such circumstances, he might not be out of the reach of the protection which a 1 The Hero, 2 Dods. Rep. 139, 144, Lord Stowcll. 2 2 Dods. Rep. 13!) ; sec also Lavinia v. Barclay, 1 Wash. C. C. R. 49; Ross V. The Ship Active, 2 Id. 22G. 212 MAMTIME LAW. [CH. VII. bottomry-bond would afford him. Such a power, however, liable as it is to perversion and abuse, ought to be cautiously- admitted, and the circumstances averred as the justifica- tion of its exercise to undergo a very severe scrutiny. <§> 271. It is no objection to the validity of a bottomry- bond, that it was given to the consignees of the cargo, by a master, whom they, as a measure of necessity, had substituted to the original master, who had deserted — the necessity of the bond and the fairness of the transaction being esta- blished.^ Nor is it a valid objection to the validity of such a bond, that it was given to a consignee of the cargo and agent of the charterer of the ship, whilst at the time and on the spot there was a consignee of the ship, but who was unwilling to act.^ For the inability to obtain funds from an authorized agent is deemed to be, so far as the master is concerned, an equal predicament of distress as if no funds were in existence. «§, 272. In several of the earlier American decisions, it was held that a consignee could not take a bottomry-bond. In the case of Liebart v. The Ship Emperor,^ although the cir- cumstances of the transaction showed that the advances were originally made upon the personal credit of the owners, yet in addition to that fatal objection, it was assumed by the dis- trict court, that the master had no power to hypothecate the vessel to consignees. And the court of appeals, whither the case was carried, in affirming the judgment of the inferior court, is reported to have said, "No authority is shown, and none can be shown, because none ought to be, that an hy- pothecation can be made to a consignee ; great mischiefs might arise if captains could hypothecate to consignees." 1 The Alexander, 1 Dods. Rep. 278 ; The Rubicon, 3 Hagg. 9. 2 The Nelson, 1 Hagg. 169. 3 Hopk. R. 163. S. C. Bee's Adm. R. 339. This case was decided in the year 1785. CH. VII.] BOTTOMRY AXD RESPONDENTIA BONDS. 213 In the case of Rucher v. Conyngham,^ Judge Peters said, that in general, he thought there was a legal impropriety and invalidity in a consignee taking a bottomry-bond from the master. The practice might lead to abuses and collusions, to charge the owner with unwarrantable and unnecessary usurious premiums. But, he added, " I will not say that there may not be cases where the consignee is not bound, more than any other lender, to advance for repairs, without taking the ship as security for a loan on maritime interest. A consignee, not in the habit of dealing with or crediting an owner, and not having any goods, funds, or means of secu- rity at the time, seems not under any obligation to risk his property, without the usual and adequate compensation and security." <§, 273. A bottomry-bond given by the master of a ship to a consignee, is very properly regarded with some degree of distrust. All the circumstances of the transaction should be and are scrutinized with a good deal of rigor. But when the fairness and propriety of the transaction are made to ap- pear, the bond, as before stated, is upheld.^ And it seems that a bottomry-bond taken in a foreign country by an agent of the charterers of the ship, not in his own name, but in the name of the charterers themselves, is' valid, and will be sup- 1 2 Peters's Adm. R. 295, 307 ; see to the same effect Read v. Com. Ins. Co. 3 Johns. R. 352. 2 3 Kent's Cora. 172, 360. In the case of The Ship Medora, 2 Wood. & Minot's Rep. 92, it was said by Woodbury, J., that "even an express bottomry-bond, if given to a consignee, will not always hold if the credit seems to have been otherwise at first given to the master or owners, and if an express hypothecation was not resorted to originally, because the owners were little known, or their credit was limited. Much less then should an implied lien on the ship arise in favor of a consignee and continue after she sails and after taking a bill of exchange on time, when an express lien will not always hold, if created in favor of a consignee. And more especially should it not usually hold, as there being a consignee to give credit and make advances, this circumstance repels the necessity of an hypothecation, either express or implied, and which necessity alone empowers the master to make an express one." 214 MARITIME LAW. [CH. YII. ported. In the case of The Ship Venus, ^ where a ship was chartered on a voyage to Bristol, in England, and back to Boston, and on the homeward voyage was compelled to go into an intermediate port to refit, where the necessary sum for repairs was advanced by a person connected in business with the charterers, and who took in the name of the char- terers a bottomry-bond for the amount, the District Judge of Massachusetts upheld the bond so given. He said that although the charterers might have advanced their money and have recovered the amount on the covenant in the char- ter-party by the owner to keep the ship in repair, yet they were not bound so to do ; and by entering into the bottomry contract, they waived their remedy on the charter-party for the advances made for repairs. <§> 274. If an agent, consignee, or any third person, should have funds in his hands belonging to the owner of the ship, or there should be a previous indebtedness on his part, he cannot, under such circumstances, lend money to the master on bottomry. He is bound to use the funds or satisfy his debt, and there would of course be no necessity for the bond.^ Nor can a part-owner take a bottomry-bond on the share of another part-owner for repairs done to the vessel. The part-owner being himself personally responsible for the re- pairs, cannot lend money to the master on bottomry to pay his own debts, or debts for which he is liable in common with the other part-owner.^ <§) 275. If a bottomry lender in fraud of the owners, and by connivance with the master for improper purposes, ad- vances his money on a new voyage not authorized by the instructions of the owners, his bottomry-bond may be set aside as invalid. But if the master deviates from his in- 1 See a report of this case in Abbott on Ship. p. 208, note. 2 The Hebe, Dr. Lushington, vide Abbott on Ship. p. 205. 3 Patton V. The Randolph, Gilpin's Rep. 457. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 215 structions without any participation or cooperation or fraud- ulent intent of the bottomry lender, tlie security of the latter for his advances bond fide made for the relief of the ship's necessities will remain good.i In the case of The Rilance,- it appeared that the ship was freighted from London to Cal- cutta and back. The lenders, \vho resided in Calcutta and had been employed by the master as agents, with a view to their own profit, induced him to remain and undertake a series of voyages in that part of the world, in defiance of letters of instruction from his owners in England. The bond was adjudged to be void. There was nothing to satisfy the court that the ship was in that state of necessity as to want a bottomry-bond. If a necessity existed, it was a necessity arising from conduct of the parties in whose favor it was executed. <§> 276. A valid bottomry-bond cannot be made to secure antecedent advances, or a preexisting debt. Although a pressing necessity might have existed at the time the advan- ces were made or the debt incurred, yet when the bond is actually made, such necessity has passed away. The bot- tomry is not necessary to effectuate the objects of the voyage, a predicament which alone constitutes the solid foundation of a maritime hypothecation.^ It is hardly necessary to add, that a bottomry-bond made by the master for his own pur- poses, or to secure a debt of his own, would be fraudulent, and hence void.^ And it would be equally invalid if given for the benefit of the cargo. Thus, where a ship was cap- tured and carried into a port of the captor's and there libelled, 1 The Virgin, 8 Peters's R. 538, 552. It was said in this case to set aside a bottomry-bond given under the circumstances stated in tiie text, would im- pair, in no small degree, the general confidence of the commercial world in their security, and would overturn the great maritime policy upon which they have been hitherto held sacred and privileged liens. 2 3 Hagg. R. CO, 74. 3 Hurry v. Hurry, 2 Wash. C. C. R. 145; The Ship John, 1 Id. 293. 4 Abbott on Ship. p. 209 ; Keith v. Murdock, 2 Wash. U. 297. 216 MARITIME LAW. [CH. VII. upon a claim being put in by the master, the ship and a part of the cargo were given up. To procure the release of the residue, the master executed a bottomry-bond upon the ship. It was held that he acted without authority, for to pledge the ship for the benefit of the cargo does not belong to the na- ture of his trust. The bond, therefore, was declared to be void.^ <§. 277. Where a ship is actually arrested for a preexisting debt, and is relieved therefrom by a third party, who stipulates for a bottomry interest, the necessity of the occasion will jus- tify the master in giving it, if he has no other sufficient funds or credit, by means of which he could redeem the ship from the arrest. We have seen that material-men and others, who furnish supplies to a foreign ship, have a lien on the ship, and may proceed in the admiralty to enforce that right. In such a case a bond fide creditor who pays such debts and relieves the ship from an arrest, stands upon the same ground with one who originally, in a case of necessity, advanced money on bottomry, to enable the ship to be repaired. 2 <§, 278. When a bottomry-bond is given to pay off a prior one, it must stand or fall upon the same grounds that would have sustained or discharged the original bond. The subse- quent lenders can only claim as the virtual assigns of the original lenders, and the same defects which belonged to the 1 Fontaine v. The Columbian Ins. Co. 9 Johns. R. 29. 2 The Aurora, 1 Wheat. R. 96, 105. It was said by the court in this case, that it did not by any means follow, because a debt sought to be en- forced by an arrest of the ship, might uphold an hypothecation in favor of a third person, that a general creditor would be entitled to acquire a like inte- rest. It would seem against the policy of the law to permit a party, in this manner, to obtain advantages from his contract for which he had not origin- ally stipulated. It would hold out temptations to fraud and imposition, and enable creditors to practise gross oppressions, against which even the vigi- lance and good faith of an intelligent master might not always be a sufficient safeguard in a foreign country. See also Greely v. Waterhouse, 1 App. R. (Maine,) 9 ; and Bray v. Bates, 9 Met. 237. CH- YII.] BOTTOMRY AND RESPONDENTIA BONDS. 217 original title pass along with the muniments of that title under the assignment.^ <§. 279. It does not affect the validity of a bottomry-bond, that the repairs and supplies were ordered by the master be- fore the bond was given, if at the time, they were ordered upon the faith, and with the intention, that a bottomry-bond should ultimately be given to secure the payment of them.- In the case of the La Ysabel,^ it was objected to the bond, that the money was advanced before the bond was given. But the objection was overruled, and it was held to be suffi- cient, that it was the understanding of the parties at the time, that the money should be secured by means of bot- tomry. When that fact is made to appear, it is of no conse- quence whether the money was advanced at once and the bond immediately entered into, or whether the master received it from time to time in different sums and then gave a bond for the whole amount. <§> 280. Where the necessity for the loan exists, the bot- tomry lender is not bound to see to the application of the money. The law imposes no such obligation upon him. If the master squanders the money, or diverts it from the pur- 1 The Aurora, 1 Wheat. R. 96. It is proper to mention, in this place, that by the common law, a bottomry-bond, being a chose in action, is not assignable so as to enable an assignee to sue upon it in his own name, or to set off the amount against a demand upon himself. It might, however, be made available in a court of equity. In the admiralty, on the other hand, a bottomry-bond is a negotiable interest, which may be transferred and put in issue by the person so acquiring it. Abbott on Ship. p. 197, 198 ; The Re- becca, 5 Rob. Adm. Rep. 102. 2 The Virgin, 8 Peters, 552 ; vide The Wave, 11 Law Rep. 211, a very recent case. 3 1 Dod. Adm. Rep. 273. Writers on maritime law are divided upon iho question, whether a loan on bottomry is good, if the ship is actually at sea when it is effected. The Supreme Court of the United States, in tiic case of Conrad v. Atlantic Ins. Co. 1 Teters's Rep. 386, held that a respondentia loan (and a bottomry loan stands on the same ground,) is valid after the ship has sailed and the goods are at risk. MAR. 19 218 MARITIME LAW. [CH. VII. poses for which it was loaned, the innocent lender is not to suffer from his fraudulent conduct. He is not responsible for the honesty of the confidential agent of the ship-owner. If he has reasonable ground for believing that the money is fairly borrowed, the bond will be upheld, whatever may be the subsequent conduct of the master.^ <§, 281. When bills of exchange are given as collateral se- curity for a bond of bottomry, the bills do not destroy the validity of the bond,^ nor do they produce that effect even if the bond is indorsed as collateral security for the bills, pro- vided such security was contemplated on the advance.^ But, in all cases it must be understood that the bottomry, to be valid, must be the original and primary security. When that fact stands clear and undisputed, it is no objection that the bottomry lender required the twofold security of a bill of exchange in addition to the bond.^ The bill of exchange must share the fate of the bond. Until the vessel arrives safely at the end of her voyage, the loan is at the risk of the lender, and if she is lost, nothing is due upon the bill more 1 The Virgin, 8 Peters's R. 538 ; The Jane, 1 Dod. R. 461. 2 The Augusta, 1 Dod. R. 283. 3 The Tartar, 1 Hagg. Adm. R. 1. The Nelson, 169, 179 ; TheEman- cipation, 1 Rob. 124. In this latter case it was laid down that the validity of a bottomry is not affected by the circumstance that it was given for the security of bills of exchange draionfor advances for the ship. But this must be understood with reference to the circumstances of the particular case. The lender must take the bottomry as the primary security. If he trusts originally to the personal credit of the owner, a subsequent bond for the same advance is void. In the case of the ship Medora, 2 Woodbury & Minot's Rep. 92, it was said by the court that where a bill of exchange is taken and secured in the express bottomry-bond, of course it is no discharge of the lien created by the bond, as it is not alone looked to. Such are many of the cases reported. Or if taken as collateral security drawn on other persons. But if a bill of exchange is taken by a consignee or agent for the amount, it is prima facie evidence that he looks to it rather than the vessel, and especially if it gives time, and difference in the exchange is deducted, as in this case. 4 The Ariadne, 2 Wm. Rob. R. 421. CH. Vn.] BOTTOMRY AND RESPOXDENTIA BONDS. 219 than upon the bond. It therefore follows, that the owner is not bound to honor the bill until the arrival of the vessel.^ <§» 282. A bottomry-bond supersedes all prior liens upon the v^hip, and is preferred to every other claim or privilege for the voyage, on which it is founded, except the claim for seamen's wages.^ The claim of a mariner for wages, it was said in the case of The Sydney Cove,^ stands on very ditfer- ent ground from the claim of a bond-holder, and that the hypothecation of a ship could not divest his interests, not even the sale of it, except it was made under the authority of a competent court. That a seaman's claim for his wages was sacred as long as a single plank of the ship remained. A bottomry is entitled to priority of payment over mortgages, and over any prior insurance, and is preferred to the title of a vendee without notice.^ And if the lien of seamen for their wages has been discharged by the bottomry lender, he has a resulting right over against the owners, who are per- sonally liable for such wages, in the same manner as he would have if they had previously mortgaged the ship, and he is permitted to have the same priority and lien on the proceeds of the ship which the mariners themselves would have.^ <§, 283. It will be understood, from what has already been said, that a later bond is entitled to priority of payment over a former. This course of payment is contrary to that adopted in the case of common bonds, where those of a 1 The Hunter, Ware's Rep. 253. 2 The Madonna, D. Idra. 1 Dod. R. 40. 3 2 Dod. R. 1, 13. 4 1 ConlSing's Adm. 220 ; The Charles Carter, 4 Cranch, Rep. 328 ; The Ilersey, s'llagg. Adm. R. 404, 407; The Duko of Bedford, 2 Ilagg. Adm. R. 102 ; The Mary, Paine's R. 671 ; The Draco, 2 Sumn. R. 157 ; 3 Kent's Com. 358. 5 The Kammerhcvie Rozcncratz, 1 Ilagg. Adai. R. 02; The Virgin, 8 Peters, R. 538. 220 MARITIME LAW. [CH. VII. subsequent date can only be enforced after all former de- mands shall have been first paid and satisfied. In this species of security, entered into upon the pressure of neces- sity, the order of payment is wisely reversed, since without the subsidiary aid of a later bond the property would be totally lost, both to the owners and the former bond-holders.^ ^ 284. A bottomry-bond does not constitute an indelible lien upon the vessel. It creates only a defeasible interest, and it becomes void by an omission to inforce it within a reasonable time. The maritime law requires a bottomry lender to be particularly vigilant in prosecuting his claim. Hence, if he suffers the ship to make several voyages without asserting his lien, and executions are levied upon the ship by other creditors, he loses his lien on the ship.^ 1 The Rhadamanthe, 1 Dods. Rep. 204 ; The Charles Carter, 4 Cranch's R. 328. 2 Abbott on Shipping, p. 216, note 3 ; The Charles Carter, 4 Cranch's R. 328 ; The Brig Nestor, 1 Sumner, 85 ; The Rebecca, 5 Rob. R. 94. In this latter case, Lord Stowell said, " There is a principle of limitation in every system of jurisprudence, to be derived out of the nature of things, which entitles the court to avail itself of the universal maxim, vigilantibus non dormicntihus jura suhveniunt. And in questions of bottomry, more especially, the court is bound to expect particular vigilance, because, although bonds of this kind are to be supported with a high hand, when clear and simple, they are, in many respects, things to be narrowly watched. Bottomry is a transaction which affords great opportunities of collusion, and therefore on the very account of the importance given to these bonds, they are to be pursued with very active diligence, in order that the court may have the opportunity of considering them in their recent origin with a view to all the circumstances on which their honest validity depends." In the case of The Ship Medora, 2 W. & M. 92, Woodbury, J., observed, that in the case of implied liens he had met with no cases where the lien had been sustained beyond the close of the next voyage. And he was of opinion that whether the lien was express or implied, it should not extend beyond the next voyage, where new interests of third parties as to the vessel have intervened. There are certainly many and powerful reasons for adopting this limitation. The existence of these liens upon the ship is unknown to the public, and for the protection of third persons they should be extin- guished as soon as possible after they become payable. Vide The Bark Clarence, 14 Law Rep. 453. CH. VII.] BOTTOMRY AXD RESPONDENTIA BONDS. 221 >§. 2S5. If, after the risk on the bottomry-bond has com- menced, the voyage or adventure is vohmtarily broken up by the borrower, in any manner whatsoever, whether by a voluntary abandonment of the voyage or adventure, or by a deviation, or otherwise, the maritime risks terminate, and the bond becomes presently payable.^ But if the proposed voyage be abandoned before the risk has commenced or been incurred, then the contract is turned into a sim'ple and abso- lute loan at the legal rate of interest.^ >§« 286. Where the voyage has never been performed, but the ship has been lost, as, for instance, by capture, and after- wards restitution in value has been decreed, though the bottomry holder loses his remedy on the bond at common law, upon the ground that the voyage was never performed, that the capture was a loss of the vessel within the condi- tion of the bond, he is still entitled to recover his portion of the proceeds in the nature of salvage."^ But it is an unset- tled point whether he might not sue in the admiralty against the owner, as having such proceeds in value in his hands subject to the lien.'* <^ 287. If a bottomry-bond is given in time of peace, and is a fair transaction, without any view of infringing the rights of war, and hostilities intervene, and the vessel is captured, the bond falls with the capture, and will not be recognized as a subsisting interest in the prize courts of the captors, even in favor of a subject of the capturing power. This doctrine was declared in the case of The Tobago.^ 1 The Draco, 2 Sumner's Rep. 157, 193. 2 3 Kent's Com. 350. 3 Applcton V. Crowninshiel'J, 3 Mass. R. 443 ; 8 Mass. R. 340, S. C. 4 Abbott on Ship. Story's Notes, p. 216, note 5. 5 5 Rob. Adm. R. 194. Sir William Scott, in pronouncing judgment m this case, after observing that there was no precedent for the demand, pro- ceeded as follows : " The person advancing money on bonds of this nature, acquires by that act no property in the vessel ; he acquires the jus m rem, 19* 222 MARITIME LAW. [CH. VII That was the case of a claim on behalf of A. B., a British merchant, for the interest of a bottomry-bond, executed to him by the master of the ship, which was a French vessel, previous to hostilities. But it was held, that as the property of the vessel continued in the former owner, who had merely given a right of action against it, but nothing more, there but not the^^Ks m re^ until it has been converted and appropriated by the final process of a court of justice. The property of the vessel continues in the former proprietor, who has given a right of action against it, but nothing more. If there is no change of property, there can be no change of national character. Those lending money on such a security, take this security sub- ject to all the chances incident to it, and amongst the rest the chances of war. But it is said that the captor takes cum onere, and therefore this obligation would devolve upon him. That he is held to take cum onere is undoubtedly true, as a rule which is to be understood to apply where the onus is immedi- ately and visibly incumbent upon it. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the owner of the ship, because the owner of the ship has the cargo in his pos- session, subject to that demand by the general law, independent of all con- tract. By that law he is not bound to part with it but on payment of freight, he being in possession, can detain it by his own authority, and wants not the aid of any court for that purpose. These are all characters of Xhejusin re, of an interest directly and visibly residing in the substance of the thing itself. But it is a proposition of a much wider extent, which affirms that a mere rioht of action is entitled to the same favorable consideration in its transfer from the neutral to a captor. It is very obvious that claims of such a nature may be so framed as that no powers belonging to this court can enable it to examine ihem with effect. They are private contracts passing between parlies who may have an interest in colluding ; the captor has no access whatever to the original private understanding of the parlies in forming such contracts, and it is, therefore, unfit that he should be aflfected by them. His rights of capture act upon the property without regard to secret liens possessed by third parties. In like manner his rights operate on no such liens, where the property itself is protected from capture. Indeed, it would be almost impossible for the captor to discover such liens in the possession of the enemy, upon properly belonging to a neutral. The consequence, there- fore, of allowing generally the privilege here claimed would be, that the captor would be subject to the disadvantage of having neutral liens set up to defeat his claims upon hostile property, whilst he could never entitle himself to any advantage from hostile liens upon neutral property. This court, therefore, excludes all consideration of liens or incumbrances of this species." See also the Marianna, 6 Rob. 24 ; Tlie Francis, 8 Cranch, R. 418 ; The Mary, 9 Cranch, R. 126. CH. Vn.] BOTTOMRY AXD RESPONDENTIA BOXDS. 223 was no change of national character, and that the rights of capture acted upon the property, without regard to secret hens possessed by third parties. It was intimated, however, that the court in the other branch of its jurisdiction, might be disposed to uphold a bond of this character, when brought directly before it. <§» 288. A bottomry-bond given by the master of a ship which is a cartel, in an enemy's port^ for necessary repairs, is valid, and may be enforced in our Courts, notwithstanding the lender be an enemy. This principle was determined in the case of The William Penn.^ That was a libel in the district court on an hypothecation of the Ship William Penn, given at Jamaica, for repairs made on her and advances for her outfit, to enable her to perform her voyage to the United States. The owner of the ship was admitted to claim, and he pleaded that the instrument of hypothecation was exe- cuted during war, and that the libellants were alien enemies, residing in Jamaica. The replication stated that the vessel was employed by the United States as a cartel, to bring to the United States, from Jamaica, a number of American pri- soners ; and having as such commenced her voyage, was compelled by stress of weather to put back to refit and procure provisions, on which account these advances were made, and without which she would not have performed her voyage. To this replication there was a demurrer and joinder by the libellants. The district court dismissed the libel, from which decision the cause came by appeal to the circuit court. Judge Washington, after considering the rules of the common law, in cases of alien enemies, and declaring that they did not apply, in all their rigor, to courts acting under the general law of nations, proceeded as follows : '' The only remaining question is, can a contract made with an alien enemy, by the master or owner of a cartel vessel, in 1 1 Peters's C. C. R. 106. 224 MARITIME LAW. [CH. \T:I. relation to the navigation of that vessel, upon the service in which she is engaged, be enforced in a court proceeding according to the rules of the civil law, and having jurisdic- tion of the subject-matter. What is the character of a cartel vessel, and of the persons concerned in her navigation ? The flag of truce which she carries throws over her and them the mantle of peace. She is, pro hac vice, a neutral, licensed vessel, and all persons concerned in her navigation, upon the particular service in which both belligerents have employed her, are neutral in respect to both, and under the protection of both. She cannot carry on commerce under the protec- tion of her flag, because this was not the business for which she was employed, and for which the immunities of that flag were granted to her. She is engaged in a. special service, to carry prisoners from one place to another, and whilst so engaged she is under the protection of both belligerents in relation to every act necessarily connected with that service. It follows, that all contracts made for equipping and fitting her for this service, are to be considered as contracts made between friends, and consequently ought to be enforced in the tribunals of either belligerents having jurisdiction of the subject. The agreement of the two nations, by their agents, to make her a cartel, amounts to a license by both to perform the service in which she is employed, and sanctifies all the means necessary to that end. Upon these principles, I am of opinion that the libellants were capable of maintaining this suit, and that the plea of the claimants ought to be over- ruled." *§, 289. It should be observed, that the master may hypothe- cate the freight by a bottomry-bond, under the same circum- stances of necessity that would justify him in giving that security on the ship.^ When the freight is pledged by the hypothecation, it means the freight of the whole voyage, 1 The Ship Packet, 3 Mason, 255 ; The Zephyr, Id. 34 ; The Gralitu- dine, 3 Rob. R. 240. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 225 and not merely from the intermediate port, where the repairs and supplies are furnished, to the final port of discharge. ^ <5> 290. If the vessel arrives safe, or is lost from its own defect, or the fault of the master and mariners, or from any cause not falling within the perils enumerated in the contract, the borrower must return the sum borrowed, together with the maritime interest.- If payment is delayed, the sum lent and the maritime interest constitute the principal upon which common interest is allowed from the time the principal be- came due. And for the whole sum the borrower is person- ally bound as well as the property pledged.-^ <§. 291. If the bottomry-bond is not discharged within the time prescribed, upon application to the court of admiralty a decree of sale will be passed, if necessary, and the vessel subject to the bottomry lien will be sold by the marshal of the district. The assets will be marshalled by the court where the interests of shippers are concerned, and the property of the owner and master, (where the property of all is bound,) will be first applied to discharge the bond.'* If various de- mands are mixed up in the creditor's bond, some of which would sustain an hypothecation and others not, it is his duty so to exhibit them to the court that they may be separately weighed and considered.^ •^ 292. If the maritime interest reserved be exorbitant, the courts of admiralty will exercise, but with great caution, a control, in the way of a reduction of it. And this from the 1 The Zephyr, 3 Mason, R. 341. 2 3 Kent's Com. 354. 3 The Ship Packet, 3 Mason, R. 255; 3 Kent's Com. 355. 4 The Packet, 3 Mason, R. 255. 5 The Aurora, 1 Wheat. R. 90. " It would be perilous indeed," said the Court in this case, " if a court were called upon to grope its way through the darkness and intricacies of a long account, without a guide, and decide upon the interests of the ship-owner by obscure and doubtful lights which here and there might cross the path." 226 MARITIME LAW. [CH. YII. necessity of the case. " The contract, even if made by the owner himself, may be a contract made nnder an undue advantage taken of his distress. Bnt it is not generally made by the owner, but by the master, who represents him, and not by the special appointment of him for that purpose, but only by the operation of law acting upon an emergent and unprovided necessity, probably sometimes incurred not with the greatest prudence, considering that it is to impose the payment of an obligation upon another person, and therefore where there is a manifest want of such prudence it requires some degree of correction. But the presumption is in favor of the original contract, and admiralty courts are inclined to take the agreement as it stands, and not to dis- turb it, unless it be somehow vitiated by the party who ob- jects to it, by showing that there are manifest errors in the calculation, or in the basis upon which it has been made. But this is a power that will be very cautiously exercised, and for obvious considerations. A court in a distant part of the globe can form only an imperfect measure of the distress exis|ing and of the difficulty of obtaining the needful sup- plies at the place where they are furnished. The money is to be advanced for persons unknown and resident in a fo- reign country ; it is to be advanced upon an adventure which may totally fail of success, and the money maybe irrecover- ably lost." 1 «§> 293. Where there are several bonds, and one is secured on the ship and freight, and another upon the ship, freight, and cargo, upon a principle of equity, a court of admiralty will marshal the assets and satisfy one claim from the cargo, and the others from the ship and freight. ^ In case of disas- ter to the vessel, subject to the bottomry lien, the lien at- taches to whatever is saved from the wreck, and to its pro- ceeds. Bat the lien, of course, is secondary to equitable 1 Lord Stovvell, in the case of the Zodiac, 1 Ilagg. 320. 2 The Trident, 1 W. Rob. Rep. 29, 35. CH. VII.] BOTTOMRY AXD RESPONDENTIA BONDS. 227 claims for average contribution in cases of jettison, ransom, (Scc.^ It is proper to observe, in this place, that where a bot- tomry suit has been once commenced and abandoned, a court of admiralty will not support a second suit on the same bond, unless under strong circumstances. - Of Respondentia Bonds. <§. 294. A contract, similar to a bottomry-bond, upon the cargo of the ship, is called a respondentia. Indeed, the ship and cargo may be pledged in the same instrument. If the goods arrive safe, the sum lent is to be repaid with maritime interest If lost from any of the perils enumerated in the contract, the bond is discharged. As the goods are, from their nature, to be sold or exchanged in the course of the voyage, the lender has no lien on them, but must look solely to the personal responsibility of the borrower. Of course such lien may be created by express contract of the parties, but even then it amounts only to an equitable lien upon the salv- age in case of loss.^ Chancellor Kent is of opinion that 1 3 Kent's Com. 360; 1 Conkling's U. S. Adm. 225. 2 The Fortitude, 2 Dod. R. 58. A court of admiralty is governed by the same rule in other cases, as well as in a proceeding to enforce a bottomry- bond. Since the text was written I have seen a brief report of a very re- cent decision of the English court of admiralty in a case of collision. An American ship was arrested and bailed in a cause of collision promoted by the owners of the ship and cargo damaged, and the damage pronounced for. A claim for damage to the cargo was preferred before the registrar and merchants. Subsequently it was ascertained that the damage to the cargo was to a greater extent, and they arrested the ship in a fresh action. Held, that the action could not be maintained, the parties and cause of aclion being the same. 14 Law Rep. 514. 3 The Atlas, 2 Hagg. Adm. R. 58 ; 2 Park on Ins. 8G9 ; 3 Kent's Com. 354. With respect to the lien created by a contract of respondentia, I have followed the authority of Chancellor Kent. In the case of Del. Ins. Co. r. Archer, 3 Rawle, 220, Gibson, C. J., in giving the opinion of the court, said : " It seems to be held both by the English and American courts, that the lender takes the risk only of a total loss, but that any part of the pro- perty which arrives, goes to the lender without regard to whether it be great 228 MARITIME LAW. [CH. VII. money may be lawfully loaned at respondentia without any pledge of the goods, and without there being any cargo on board. He says the weight of authority is in favor of these maritime loans where nothing is hypothecated. And this applies equally well to the ship as to the cargo. It is suffi- cient, if the money is loaned upon the mere hazard of a specific voyage, without any security either upon the ship or cargo. ^ '^ 295. It was held, in the case of Conrad v. The Atlantic Insurance Company,^ that it is not necessary that a respon- dentia loan should be made before the departure of the ship on the voyage, nor that the money loaned should be em- ployed in the outfit of the vessel, or invested in the goods on which the risk is run. It matters not, it was said by the court, at what time the loan is made, nor upon what goods the risk is taken. If the risk of the voyage be substantially and really taken ; if the transaction be not a device to cover usury, gaming, or fraud ; if the advance be made in good faith, for a maritime premium, — it is no objection to it that it was made after the voyage was commenced, nor that the money was appropriated to purposes wholly unconnected with the voyage. *§. 296. We propose to consider the cases where the mas- ter is authorized to pledge the cargo. It is agreed, that in a case of necessity, where the master cannot procure advances for the ship on the security of the ship he may sell a part of the cargo or hypothecate the whole. If the repairs of the ship produce no benefit or prospect of benefit to the cargo, the or whether it be small, so that it does not exceed in value the amount of the loan, has never, I believe, been doubted anywhere." The form of a respon- dentia bond used in Philadelphia is unlike that used elsewhere, and is pecu- liar to that city. Vide Gibson v. Phil. Ins. Co. 1 Binn. 405 ; Ins. Co. Penn. v. Duval ; 8 S. & R. 138. 1 3 Kent's Com. 355, 356. 2 1 Peters's U. S. Rep. 386. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 229 master cannot in that case bind the cargo. But, though the prospect of benefit may be more direct and immediate to the ship, it may still be for the preservation and conveyance of the cargo, and when it is so it is justly to be considered as done for the common benefit of both ship and cargo. ^ <§> 297. Where the master has a direct authority from the principal owners of the cargo to hypothecate it, his act under such authority binds the other owners.^ But the power of the master to sell or hypothecate the cargo ceases upon the arrival of the ship at the port of destination, unless, indeed, he has a special authority for that purpose from the owners. His power ceases, for his control as master over the cargo is then gone, and in judgment of law it is in the possession of the consignees. And his right as master is not helped by the fact that he is in whole or in part consignee of the cargo, for if he is, then the application of the cargo or its proceeds, after such arrival, to the ship's necessities, is deemed an application by him as consignee, and not as master, and he is responsible for such application to the owners of the cargo, as a breach of trust.^ <§> 298, The master is not bound to select any particular part of the cargo, specie dollars, for instance, and apply it to the necessary repairs of the ship, rather than hypothecate the whole. He is invested with a discretionary power as to the choice of means. He is to supply the wants of the ship at as little sacrifice as possible. This principle was declared in the case of The Ship Packet. In that case objection was taken to the conduct of the master in giving 1 The Gralitudine, 3 Rob, Adm. R. 210 ; Ilussey v. Christie, 13 Ves, Jr. 599 ; Ross v. The Ship Active, 2 Wash. C. C, R. 226; The Packet, 3 Mason, R. 255. 2 The Rhadamanthe, 1 Dod. 208. 8 U. S. Ins. Co. V. Scott, 1 Johns. R. 106 ; Abbott on Ship. p. 214, note. MAR, 20 230 MARITIME LAW. [CH. VII. the bottomry-bond ; that as he had specie dollars on board belonging to some of the shippers, he was bound to apply this money in the first instance to the relief of the ship, before resorting to the extraordinary measure of bottomry. But it was held, that there was no absolute rule, which compels the master at all events, and under all circum- stances, to make use of money of third persons, which he happens to have on board. The general principle was de- clared to be, that he is bound to act with a reasonable dis- cretion. If he has money on board, and the use of that will be the least sacrifice, he ought to resort to it in the first in- stance. But there may be cases in which the use of such money would be the greatest sacrifice that could be made, and the whole objects of profit in the voyage might thereby be defeated. Thus, the use on an outward voyage to China or the East Indies, of Spanish dollars, being the principal property on board, and shipped for the purchase of a return cargo, might defeat the object of the voyage. In a case therefore, of this nature, much must be left to the master's discretion, and he must exercise it conscientiously for the general interest. If he acts bond fide, and with reasonable care, the rights of all parties are bound by his acts, although it should afterwards be found that he had committed an error of judgment, and might have acted in a more beneficial manner.^ <§> 299. Where there is a clause in a respondentia-bond, that the vessel shall have on board, on both passages, goods to the value of the sum borrowed, the contract, in case of loss, is reduced, (provided there were not the stipulated quan- tity of goods,) in proportion to the diminished value, and for the difference in amount, together with ordinary interest, the lender may maintain a suit in personam, against the borrower. The contract, under such circumstances, is con- sidered as a contract to risk so much of the amount lent, The Ship Packet, 3 Mason, 2.58. CH. VII.] BOTTOMRY AND RESPONDENTIA BONDS. 231 as shall be covered by the property on board. If goods to the full amount of the loan are on board, the whole loan is at risk ; if a less amount, then the risk is pro tanto.^ 1 Franklin Ins. Co. v. Lord, 4 Mason, 218 ; 3 Kent's Com. 357 ; 1 Conk- ling's Adm. 225. 232 MARITIME LAW. [CH. VIII. CHAPTER VIII. OF GENERAL AVERAGE. <§. 300. Lege Rhodia cavetur, ut si levandtB navis gratia jactus mercium /actus sit, omnium contrihutione sarciatur, quod pro omnibus datum, est.^ "It is provided by the Rhodian law, that if goods are thrown overboard in order to lighten a ship, the loss incurred for the sake of all, shall be restored by the contribution of all." Such is the celebrated Rhodian law dejactu. Adopted nine hundred years before the birth of our Savior, observed by the maritime states of antiquity, and fourteen centuries after its promulgation incorporated into the Digest of Justi- nian, and thus handed down from the ancients to the moderns, it has for the long period of nearly three thousand years been the recognized law of all commercial nations. The demands of modern commerce have multiplied to an indefinite extent the cases to which the doctrine of jettison has been applied. But the principle of the original law has been preserved, if not invariably adhered to. The Rho- dian law de jactu is the germ of the whole doctrine of average. •§.301. " Averidge, in the merchant's law, is used or taken for a certain contribution, that merchants and others do pro- portionably make towards their losses who have their goods cast into the sea for the safeguard of the ship or of the goods and lives of them in the ship in the time of tempest, and this contribution seems to be so called because it is propor- tioned after the rate of every man's averidge or goods carried. 1 Dig. 14, 2, De Lege Rhodia de Jactu. CH. VIII.] OF GENERAL AVERAGE. 233 It is derived from the French word 'ara;-/e.'"i Averase is not limited to cases of jettison, as would seem from the language of the Rhodian law and the definition of MoUoy. The Rhodian law expresses a principle which may be and is applied to a variety of cases. The Romans applied it to the case of a ransom from pirates. The sum paid to redeem the ship was to be restored by general average contribution. Si Jiavis a piratis redcmpta sit. omnes conferva debere? % 302. In treating of Average, we shall consider, 1st. When a jettison is justifiable ; 2d. What damages, losses, and expenses are to be contributed for ; and 3d. What must contribute, and according to what rule. We shall endeavor to arrange under these three divisions, so far as it is pos- sible or compatible, the subjects appropriately belonging to each. First. When a jettison is justifiable. In a case of immi- nent peril of actual distress, when the ship is endangered by the tempest, or driven upon rocks or shallows by its vio- lence, or pursued by pirates or enemies, or placed in any other perilous extreme, whatever measure extricates her, promotes the common benefit. If, in such circumstances, a jettison be made and the object is accomplished, that is, the safety of the ship and the remaining cargo be secured, then what was saved must pay for what was lost. The goods must be thrown overboard with premeditation, the mind and agency of man concurring in the act.^ If possi- ble, the most weighty and least valuable articles first. "The utensils of the ship," says the French Ordinance de la Marine, "and other things that are least necessary, heaviest, and of least value first." "* The master should consult with the 1 Molloy, De Jure Maritimo, chap. 6, 5. 2 Digeslorum, Lib. xiv. Title 2, ^ 3. The reader, by referring to this title of the Digest^will find other cases in which the principle is applied. 3 3 Kent, 186 ; Stevens on General Average, p. 9 ; Abbott on Sliipping, p. 571. 4 Sect, xxiii. 1, art. 3. 20* 234 MARITIME LAW. [CH. VIII. officers and crew, if the case admits of delay. It serves to repel the imputation of rashness ; but it is not absolutely necessary.^ The question is not, whether there was previous consultation, but was the jettison demanded by the immi- nence of the peril. " Consultation, indeed, is demonstrative proof that the act is voluntary. But I should think, if it sufficiently appears that the act occasioning the loss was the effect of judgment, it is sufficient."^ " The rule of con- suiting the crew is rather founded in prudence, in order to avoid dispute, than in necessity." ^ The crew, on the other hand, are not authorized to make a jettison of any part of the cargo, even in a case of distress, without the order of the master. This is the general rule without reference to ex- treme cases. ^ «§> 303. If the goods were thrown overboard by alarm, or were swept away by the waves, or forced out of the ship by the violence of the storm, or if the object of the jettison was not attained, that is, if the ship and remaining cargo were not preserved in consequence of the sacrifice, there is no contribution ; or if there was no possibility of saving the goods at the time of sacrificing them. Thus, in the case of Crocket v. Dodge,^ where it appeared, that a schooner had been scuttled and sunk, in order to save her from being destroyed by a quantity of lime which had taken fire, and which had ceased to have any available value, it was held, that, although the vessel was preserved in consequence of the measure which had been adopted, yet the owners of the lime had no claim against the owners of the ship for con- tribution, upon the principle of general average, because, at the time of the sacrifice of the lime, its loss had become 1 13 Peters, 343 ; Col. Ins. Co. v. Ashby et al. 2 4 Binn. 520; Sims v. Gurney, Chief Justice Tilghman. 3 Lord Kenyon, 1 East, 2-20 ; Birkley v. Prergrave. 4 The Nitnrod, Ware, 14, 15. 5 3 Maine, 190. See also Benecke, Phillips's edition, p. 110. CH. Vin.] OF GENERAL AVERAGE. 235 inevitable. It was said by the court, that if the lime, in the condition it then was, could by no possibility be saved, it was of no value, and the owner lost nothing by the course pur- sued. "^ 304. It is observed by the editors of the American Lead- ing Cases,^ in commenting upon the case of Crockett v. Dodge, that it may be doubtful whether this decision did not not go too far, in transfusing the inquiry from the question, whether the peril by which the loss was actually occasioned was the voluntary act of the assured, to the wholly diflerent point of examining into the imminence of the danger which that sacrifice was intended to avert. Unless the danger threatening the whole adventure is extreme, there can be no right to choose that part which shall be destroyed for the be- nefit of the rest, and where this election has produced a bene- ficial result, it is no answer to a claim for contribution to show, that, but for the sacrifice, the whole would probably or cer- tainly have been lost. Certainly the case of Crocket v. Dodge established no such principle as this. If so, it would lay the axe at the root of the whole doctrine of average. It was not upon the ground, that the part sacrificed would inevitably have been lost in the common ruin, had not its voluntary destruc- tion been the price of safety to the rest, that contribution was refused. But the part destroyed was the only part beyond the possibility of being saved. Its presence threatened the ship with destruction. It was without value, except as an element of mischief. By anticipating its destruction, the ship was preserved. As the court very justly observed, the owner of the lime lost nothing by the course pursued. His property had ceased to possess any available value. Why, then, should the ship be made to contribute for a loss which had become inevitable ? ^ 1 Vol. ii. 562. 2 Abbott on Shipping, ch. 10, ^ 2 ; Columbian Ins. Co. v. Asliby, 13 Peters, 338. 236 MARITIME LAW. [CH. VIII. «§, 305. If the jettison be rendered necessary from the ship being too heavily laden to encounter the ordinary perils of the sea, the loss arises from the wrongful act of the master, and does not constitute a case of contribution. We do not use the phrase, "perils of the sea," in its precise, technical sense, but to denote those accidents of storm and gale, that may naturally be expected on that element, and which a seaworthy vessel, if not overladen, may outride. We do not mean, of course, those inevitable perils or accidents which human prudence could neither foresee nor prevent. It is laid down by writers on maritime law, that if the jettison was merely to lighten a ship too heavily laden by the fault of the master in a tranquil sea, no contribution is due.^ This proposition standing alone is self-evident ; but it would seem to imply more. It would seem to say, that the duty of the master is performed when he so lades the vessel, that she can navi- gate a tranquil sea with safety. But, certainly, this is not the measure of his obligation. Surely, if a ship is so heavily laden, that in a storm, it is compelled from that cause, to throw overboard the excess of its cargo, a loss so clearly attendant upon the fault of the master cannot claim contri- bution. The principle is the same in this case, as when, for the purpose of running a ship into her port of destination, it is necessary to lighten her. The master, says Pothier, who knew, or ought to have known, the capacity of the port to which he was bound, is in fault for having too heavily I In the case of The Columbian Ins. Co. v. Ashby, 13 Peters, 338, Mr. Justice Story, in delivering the judgment of the court, seemed to have no doubt that where lime is destroyed, as in the case of Crockett v. Dodge, the owner is entitled to contribution, upon the principle of general average. " Suppose a cargo of lime," he asked, " were accidentally to take fire in port, and it became necessary, in order to save the ship, that she should be submerged, and the cargo was thereby totally lost, but the ship was saved with but a trifling injury, would it not be a case of contribution 1 " The point was not before the court, but even an obiter dictum of so learned a jurist as Judge Story, is entitled to the highest respect. But for the reasons stated in the text, we adhere to the doctrine announced in Crockett v. Dodge. CH. Vni.] OF GENERAL AVERAGE. 237 laden her. It is therefore, in this case, the fault of the master, and, in consequence, not general average.^ "§> 306. No contribution is due, if the goods thrown over- board were stowed upon deck.- Goods so laden increase the difficulty of navigation, and obstruct the management of the vessel. Hence, it is the policy of the law to discourage their being placed in such situation. If goods are stowed upon deck, without the consent of the shipper, and are thrown overboard for the common benefit, the ship-owner must bear the loss. An important exception has been in- grafted upon the general principle, by repeated adjudications, and that is, the immunity of the ship-owner, in cases where the shipper is bound by a general custom. Hence, goods may be carried on deck, even without the consent of the owner, where the usage of the trade is such, and thrown overboard for the general benefit, without giving the owner of them any claim, either against the master for stowing them in this manner, or against the other shippers for contribution, even though the shipper of the lost goods paid full freight. ^ Where the custom exists, notice of the custom and the actual position of the goods must in all cases be presumed.'^ If the goods are carried on deck in pursuance of the usage of a particular trade, the owner of the vessel is liable to contribute for a loss by jettison. Thus, in the case of Gould V. Oliver, it was held that the owner of certain timber shipped at duebec for London, and of which jettison had been made during the voyage, was entitled to contribution from the ship-owner, although the timber was laden on deck by the ship-owner, under a privilege reserved to him by the general usage and practice of the voyage, known to both the 1 Conlrat De Louage, n. 1 16. Vide Laws of the Sea, p. 133. 2 Ordinance de la Marine, liv. 3, tit. 8, art. 13 ; Code de Commerce, art. 421 ; 22 Pick. 108 ; 13 Maine, 185 ; Dodge v Barlol, 5 Maine, 286 ; Smith v. Wright, 1 Caines's Rep. 43 ; 3 Kent's Com. 239. 3 Abbott, p. 580, note, and the authorities tliere cited. 4 Dodge V. Bartol, 5 Maine, 286. 238 MARITIME LAW. [CH. VIII. contracting parties.^ " Upon the best consideration," said Chief Justice Tindal, delivering the judgment of the Court of Common Pleas, '' that we can give to this question, refer- ring at the same time to the foreign authorities and to the few decisions which have taken place in our own courts, we think the plaintiff entitled in this case to contribution against the ship-owner As to the authorities in the English courts, there is no one which states directly that goods laden on deck shall in no case be entitled to contribution. The question, whenever it has arisen in our courts, has been between the owner of the goods thrown overboard and the underwriter. And the rule generally established, seems to have been, that for the goods so laden the underwriters are not responsible. But in the case of Da Costa v. Edmonds,^ it was left to the jury to say, whether there was a usage to carry on deck goods of the description of those thrown over- board, and the jury, having found such usage, the under- 1 4 Bing. A. C. 134 ; Abbott, p. 585. 2 This was an action (Da Costa v. Edmonds, 4 Camp. C. 142) on a policy of insurance at and from London to Lisbon. The insurance was declared by the policy to be " on forty carboys of vitriol." These carboys were placed on the deck and carefully lashed to the ship's side. A storm arose during the voyage, and a heavy sea having broken several of the carboys, the vitriol caught fire, and for the preservation of the ship, it was necessary to throw the whole overboard. The ship and the rest of the cargo arrived safe at Lisbon. It appeared that carboys of vitriol are very frequently carried on the decks of ships, but that it is likewise usual to stow them below, bedded in sand, in which situation they are considered safer. It was con- tended for the underwriters, that they were not liable, as no communication was made to them of the manner in which these carboys of vitriol were to be carried, and it is a general principle, that underwriters are not liable for goods stowed on the deck. Lord Ellenborough left it to the jury to say whether it was usual to carry vitriol on the deck, and whether these carboys were properly stowed. If there was a usage to carry vitriol on deck, the underwriters were bound to take notice of it without any communi- cation, and all they could require was, that these carboys should be properly stowed in the usual manner. On the other hand, they were not liable if the goods were carried on the deck without such a usage, or if they were not stowed there in a skilful and proper manner. The jury found for the plaintiffs. CH. Vin.] OF GENERAL AVERAGE. 239 writers were held liable. The case now under consideration does not, indeed, arise between the same parties, but appears to fall within the same principle of decision." The princi- ple established in Gould v. Oliver had previously been deter- mined in this country, in the case of Brown v. Cornwcll.^ It was subsequently recognized by the Q,ueen's Bench, in the case of Millard v. Hibbert,- where the question arose in an action between the ship-owners and the underwriter. The declaration alleged, that on a certain voyage certain pigs were shipped on board the vessel, and that from stress of weather, it became necessary, for the preservation of the vessel and her cargo, to throw the pigs overboard, by reason whereof the plaintiffs in respect of their interest in the hull, had to pay a proportionable part of the value of the pigs, and sus- tained a general average loss. Plea, that the pigs so thrown overboard had been stowed on the deck, by reason whereof the defendant was not liable to contribute any average loss sustained by their jettison. Replication, that at the time of the jettison, the vessel was on a voyage between Waterford and London, and that the pigs were stowed on deck, accord- ing to the usage of the shipping trade between Waterford and London. On special demurrer to the replication, on the ground that it did not allege that the defendant had notice of the custom, held, that the plea was bad, as the mere fact of stowing the pigs on deck was no answer to the action. The practice seems to have been, observed Lord Dcnman, not to lay it down as a rule of law, that, for goods stowed on deck, the owner of them shall be excluded from the benefit of general average, but to receive the evidence of com- mercial men respecting the usage of the trade, and the gene- ral understanding of those engaged in it and in insuring, which may obviously vary, and require, from time to time, fresh evidence and different explanations.-'^ 1 1 Root, CO. 2 2 Gale & D. 142. 3 Where the usage ia the particular trade warrants the master in carrying deck goods, the co"nsent of the shipper to have tliem so carried, does not 240 MARITIME LAW. [CH. VHI. <§> 307. Mr. Stevens mentions an exception made by Pothier to contribution, and that is the absence of the bill of lading.i The Ordinance de la Marine makes the same exception. " Effects for which there is no bill of lading shall not be paid for, though thrown overboard ; but if they are saved, they shall nevertheless contribute."^ The reason assigned is, that when there is no bill of lading, it is pre- sumable that the goods were brought secretly into the ship, without the captain's knowledge. But the fact may be ascertained by inquiry, and the presumption rebutted by proof. <§> 308. If the ship and remaining cargo are immediately saved by the jettison, and are subsequently wrecked, what is preserved from the wreck must contribute to what was sacrificed. For the object of the sacrifice was attained, that is to say, the extrication of the ship from present, impending peril. The subsequent catastrophe was in consequence of another and different peril. But if the goods thrown over- board be recovered, and the vessel afterwards lost, the goods saved do not contribute, because the loss of the vessel arose from an accident. This principle is applied to various other cases that come within its reason. Thus, if goods be put into- boats or lighters to float the ship when aground, or to pre- vent her stranding, and the boats are lost, it is considered as a jettison, and those who received the benefit must contri- bute. But if the ship be lost and the boats saved, the latter shall not contribute. In the former case, the boats were lost in consequence of a voluntary act for the good of all. In the latter, the ship was lost from accident.^ If after contri- relieve the ship-owner from contribution in the event they are thrown over- board. The consent, in this instance, adds nothing to the authority of the master, and subtracts nothing from the obligations of the ship-owner. Be- sides, when the usage exists, the consent is implied. 1 Stevens on Average, p. 14. 2 Sect, xxiii. art. 1, 12. 3 Stevens on Average, p. 15 ; 1 Phillips on Ins. 337. CH. Viri.] OF GENERAL AVERAGE. 241 but ion has been made, the goods throw overboard are reco- vered, the owners are bound to restore to the contributors wliat they have received. Tliey are entitled, however, to deduct therefrom the damage sustained by the goods, from the jettison and the necessary expenses attending the reco- very of them.^ *§> 309. We are to consider, Secondly, what damages, losses, and expenses are objects of contribution. Whatever is sacrificed for the common benefit must be restored by the common contribution. Generalitcr placers potest, damnum pro utilitate communi factum, commune esse, utque in variis speciebus id obtinere aliunde constat, sic ex lege RJiodia, cum maxime obtinet in jactur There is no distinction as to the property sacrificed, whether it be ship or cargo, a part or the whole. If in imminent peril to both, one is voluntarily sacrificed to avert that peril and the object is accomplished by the sacrifice, then, omnes conferre debere. The loss sustained by the sacrifice is to be borne as general average, by the surviving cargo, or the surviving ship, whichever it may ciiance to be.'^ Those who gain the benefit must contribute for those who sustain the loss. Nemo debet locupletari aliena, jactura. <§. 310. Emerigon distinguishes between a stranded ship that is again set afloat, and one that is shipwrecked in con- sequence of the stranding. In the former case the damages are general average, in the latter they fall upon the owners.'' 1 Ord. de Marine, sect. 23, art. i. 22. - Byiikcr. Quest. Priv. Juri, lib. 4, ch. 34, inlrod. 3 Caze V. Reilly, 3 Wash. C. C. Rep. 298; Columljian Ins. Co. v. Ashby, 13 Pelers, Rep. 331 ; Walker v. United States Ins. Co. II Sergt. & R. GI ; Sims V. Gurney, 4 Binn. 513. 4 1 Emerigon, ch. 12, p. 408. " The damages resulting from the strand- ing of the vessel, if the stranding be done voluntarily, fur the coninioii safety, are general average; provided, always, that the ship be again set afloat; for if the stranding be followed by shipwreck, then il is save who can." MAR. 21 242 MARITIME LAW. [CH. VIII. It is agreed by the foreign jurists, and our jurisprudence presents no conflicting adjudications upon tiie point, that when a ship is vohintarily stranded for the common benefit, and is got off again, the damage she suffers in consequence of the stranding, and the expenses and charge of putting her afloat, are general average. But in the case of Bradhurst v. CoUimbian Insurance Company,^ the Supreme Court of New- York recognized the distinction made by Emerigon, and held that when the ship is totally lost it does not present a case for contribution. Chancellor Kent, in delivering the opinion of the court, put it upon the ground, that when shipwreck follows stranding, the loss is imputable more to casualty than design ; that in such a case, the cargo is saved, if at all, tanquain ex incendio^ and the rule is " save who can." This reasoning is inconclusive. A statement of the case would seem to confute it. The ship and cargo are placed in imminent peril ; the master for the common safety strands the ship ; the act is a hazardous one ; the result may be shipwreck ; he encounters all the hazard. His inten- tion, primarily, is not to destroy the ship ; but for the com- mon good, he places her in a situation that may cause her destruction. His intention embraces all the contingencies of his act. When one performs an act, knowing that certain consequences may flow from it, and those consequences do follow, he is equally responsible, in law and in morals, for the results, as if he directly intended them. It is no answer that he hoped or expected a different result. His hopes, wishes, and expectations, as to the event, as they did not control it, neither can they release him from the responsi- bility of it. This principle, sometimes harsh in its practical operation, is also beneficially applied. Thus, when goods are put into lighters to prevent the ship from stranding, if they are lost, they must be contributed for. Yet. their loss was not directly intended. On the contrary, the hope and probability were that they would be saved. But for the 1 9 Johns. 9. CH. VIII.] OF GENERAL AATIRAGE. 243 safety of the ship they were exposed to great danger. Their loss was the direct consequence of the exposure. In this case, and the case of stranding, the object is attained. In the former the safety of the ship ensues; in the latter the safety of the cargo. And shall contribution be made in the one case and refused in the other, upon grounds that apply equally to both? In both cases, the loss flowed from the act and not directly from the design. <§, 311. Subsequently to the decision of the Supreme Court of New York, in the case of Bradhurst v. Columbian Insurance Company, directly opposite adjudications were made by the Circuit Court of the United States, for the Pennsylvania District,^ the Supreme Court of Pennsylvania,^ and finally by the Supreme Court of the United States.^ The latter decision determined the rule of American law. "In the case of stranding," said Judge Story, in deliver- ing the judgment of the court, "whatever is saved, is saved by the common sacrifice of the ship, although the damage to her may have been greater than was expected. Surely, the question of contribution cannot depend upon the amount of the damage sustained by the sacrifice, for that would be to say that if a man lost all his property for the common benefit, he should receive nothing, but if he lost a part only, he shall receive full compensation. No such principle is applied to the total loss of goods sacrificed for the common safety ; why, then, should it be applied to the total loss of the ship for the like purpose? It may be said that unless the ship is got off, the voyage cannot be per- formed for the cargo, and the safety and prosecution of the voyage are essential to entitle the owner to a contribution. But this principle is nowhere laid down in the foreign authorities, and certainly it has no foundation in the Roman 1 Cazew. Richards & Rcilley, 3 Wash. C. C. R. 298. 9 Gray et al. v. \V;iln, 2 Sergt. & llawle, 22'J. 3 Columhian Ins. Co. v. Ashby & Stribling ct al. 13 Peters, 331. 244 MARITIME LAW. [CH. VIII. law. It is the deliverance from an immediate, impending peril, by a common sacrifice which constitutes the essence of the claim. Bat in truth, it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average. If the whole cargo were thrown overboard to insure the safety of the ship, the voyage might be lost, but, nevertheless, the ship must contribute to the jettison. Why, then, if the ship is totally sacrificed for the safety of the cargo, should not the same rule apply ? " After a review of some of the leading opinions in foreign jurisprudence, the court proceeded to say : "In respect to domestic authorities, we have already had occasion to intimate that there are con- flicting adjudications. In Bradhurst v. The Columbian Insurance Company, 9 Johns. Rep. 9, the Supreme Court of New York held, that where a ship is voluntarily run ashore for the common good, and she is afterwards recovered and performs the voyage, the damages resulting from this sacri- fice are to be borne as a general average. But that where the ship is totally lost, it is not a general average. The ground of this opinion, as pronounced by Mr. Chief Justice Kent, seems mainly to have been, that this was the just exposition of the Rhodian and Roman law, and that the weight of authority among the foreign jurists clearly supported it. With great respect for the learned court, we have felt our- selves compelled to come to an opposite conclusion, as to the true interpretation of the Roman text, and of the continental jurists. We agree with the learned court, that when a ship is voluntarily run ashore, it does not, of course, follow that she is to be lost. The intention is not to destroy the ship, but to place her in less peril, if practicable, as well as the cargo. The act is hazardous to the ship and cargo, but it is done to escape from a more pressing danger, such as a storm, or the pursuit of an enemy or pirate. But, then, the act is done for the common safety, and if the salvation of the cargo is accomplished thereby, it is difficult to perceive why, because from inevitable calamity the damage has exceeded the intention or expectation of the parties, the whole sacrifice CH. Vni.] OF GENERAL AVERAGE. 245 should be borne by the ship-owner, when it has thereby accon)plished the safety of the cargo. If one mast is cut away, and thereby another mast is, unexpectedly and unin- tentionally, also carried away by the falling of the former, it tjas never been supposed that both did not come into the common contribution. If, in the opening of the hatches, and the jettison of some goods to lighten the ship, other goods are unexpectedly and unintentionally, but accidentally, injured or destroyed, it has never been doubted that the latter were to be brought into contribution, to the extent of the loss, or damage done to them. It is not like the case of saving from a fire, tanquain ex incendio, save who can. Bat it is like the saving the cargo from destruction by fire, by the scuttling and submersion of the ship. Upon princi- ple, therefore, we cannot say that we are satisfied that the doctrine of the Supreme Court of New York can be main- tained; for the general principle certainly is, that whatever is sacrificed voluntarily, for the common good, is to be recompensed by the common contribution of the property benefited thereby." <§. 312. "Where the voluntary act of the master and crew is the leading, immediate, and efficient cause of the strand- ing, however imminent the peril may be, the case is one of general average. But where the voluntary act is merely incidental to, but not the direct occasion of, the stranding, though it may accompany it, and may accelerate or slightly modify it, it can hardly be considered that every such case is one of contribution by what is not destroyed." ^ Such is the doctrine, Mr. Phillips, in his work on Insurance, says, may safely be deduced from the American decisions.^ Where 1 2 Phillips on Ins. 101. 2 Meech v. Robinson, 4 Wharton, 3()0 ; Mutual Safety Ins. Co. v. Cargo of ship George, Admiralty U. S. Dist. Cl. Southern District New Yorlc, 3 N. Y. Legal Observer, 20G ; S. C. 8 Law Kep. 361 ; 3 Kent, (5lh edit.) 239, 240. 21* 246 MARITIME LAW. [CH. VIII. the peril is so pressing and imminent that the stranding is inevitable, and the voluntary act of the master and crew merely anticipates the period of time when it would take place, it is not a case of general average. But where the situation of the ship is such that the power of voluntary actioa remains, so that, notwithstanding the fury of the elements, the point of stranding may be selected, and benefit results from the change in the course of the ship ; or if the place where she actually takes the ground is of such a nature as to involve less danger to the cargo, than that to which she was drifting before her course was altered ; the circumstances of such a case, it seems, constitute a claim for contribu- tion.^ «§, 313. The case of Meech v. Robinson ^ will illustrate the first of the preceding propositions, and the case of The Mutual Insurance Company v. The Cargo of the Ship George,^ the last. The action in Meech v. Robinson was assumpsit for money had and received. The plaintiffs (A. B. Meech & Co.) were the owners of a brig called the Talla- hasse, which was chartered by the defendant for a voyage from Philadelphia, where she was lying, to the port of Tam- pico. The vessel was stranded on her outward voyage, and the proceeds of what was saved received by the defendant, and this action was brought to recover the proportion of general average to which the plaintiffs alleged that they were entitled. On the trial before Sergeant, J., at a court of Nisi Prms, held at Philadelphia on the 7th of December, 1838, the plaintiff gave in evidence the deposition of Edward Walford, the master of the vessel, taken under a commission to New York, the material parts of which were as follows : " The vessel cleared for Tampico on the 14th of August, 1837. She proceeded safely on her voyage till the 5th of 1 2 American Leading Cases, 563, 564. 2 4 Wliart. 360. 3 8 Law Reporter, 361. en. VIII.] OF GENERAL AVERAGE. 247 September following, when she met with rough and tem- pestuous weather, in consequence of which she sprung the spokes of her wheel, and split the barrel thereof. On the 6th of September, (the next day,) obliged to bear away to make repairs and to get water, having only one cask of water on board for the supply of ten men. On the 7th September, completed repairs and obtained a supply of water, and pro- ceeded to sea. Nothing material happened till the 16th September, at 5 hours 30 minutes, p. m., when we came to anchor off Tampico bar, in ten fathoms water. On Sunday, 17th September, at 7 a. m. a pilot came on board, and refused to take the brig in, alleging that there was too heavy a sea on the bar. The pilot, however, ordered the brig to be got under way, and to proceed nearer the mouth of the river ; the pilot then went on shore. After the pilot departed, he (the wit- ness) ordered the topsail and mainsail to be double reefed, and then furled all the sails. At noon that day had stiff breezes from the eastward, and hazy weather. At 7 o'clock, p. M., same day, experienced a heavy squall from the north to north-north-east, when it blew so heavy that the brig could not carry sail ; in fact, no canvas could stand the storm. The witness then ordered anchor paid out to the better end of both chains ; at the same time a very heavy sea sweeping the decks fore and aft. Witness then sent a man up to send down the fore royal yard, but the storm was so violent that the man was swept out of the rigging into the sea, and was drowned. At nine o'clock, p. m., the wind at north-east, brig drifting very fast ; let go the kedge anchor, and veered out hawser. At ten o'clock, a. im., parted the hawser and small chain, brig still drifting, and the wind at the north-east, and being on a lee shore, where we could not carry sail, found it necessary for the preservation of the lives of the crew, (the loss of the vessel was noio beyond doubt, being in four fathoms water, and the land within a mile of the brig,) to nm the vessel ashore, and accordingly we slij^pcd the best bower chain, put the brig before the wind, and at abou| ten minutes after two o'clock she struck. At the time the brig 248 MAEITIME LAW. [CH. VIII. Struck, she was under double reefed fore-topsail and mainsail. As soon as the brig struck, witness ordered more sail on the vessel to drive her well up on shore. At daylight cut away our masts, and found the brig a quarter of a mile from the shore in four feet of water, buried in sand five feet. The boats were then launched, and immediately swamped with two men, who escaped with difficulty by swimming ashore. Rafts were now made, and after lashing the men to the rafts, the crew reached the shore." On his cross examina- tion, the witness said, " Her situation was most desperate. She would have gone ashore at all events. The mode in which witness raiT ashore saved the lives of the crew, and tended to save a larger proportion of the cargo. If she had not been run ashore, the crew would have been lost with probably all the cargo of the brig." The jury found a special verdict as follows: '-We find that the plaintiffs were the owners of the brig Tallahasse, which was chartered by defendant to sail from Philadelphia to Tampico, and was lost on her outward voyage, in manner described in the deposition of Edward Walford ; the facts stated in which, the jury find. The vessel and cargo were condemned and sold, and the proceeds of salvage for the benefit of whom it might concern, amounting to $1,263.75, were received by the defendant. If the court are satisfied from the testimony, that the plaintiffs, as owners of the vessel, are entitled to contribution and general average, then a verdict to be entered for the plaintiffs for the sum of $720.07, otherwise a ver- dict," &c. Kennedy, J. The case before us does not seem to come within the principle of any of the cases cited by the counsel for the plaintiffs. Sims v. Gurney, 4 Binn. R. .513, has been relied on. It would be sufficient, however, to say that that case was not one where the ship was wrecked, or any appre- hension entertained that she was in danger of being so ; but a case merely where she, as it was firmly believed, about to be unavoidably driven on shore, without the least risk of being wrecked by it, was, for the purpose of conducting her CH. Vlir.] OP GENERAL AVERAGE. 249 to a place where the creio and cargo alone, not the vessel, might be saved with greater certainty, voluntarily stripped of her masts, together with the sails and rigging appertaining thereto. It may also be observed that the correctness of the decision in this case has been questioned, and the authority of it, though no ways applicable to this case, shaken at least, if not overruled by Walker v. United States Insurance Com- pany, 11 Sergeant & Rawle, GO. The sacrifice of the masts, sails, and rigging of the vessel, being volnntary and deter- mined on witli a view to save the cargo, as well as the lives of the crew, may, perhaps, have been the subject of general contribution. But beyond this, the principle of the case may well be doubted. Gray v. Wain, 2 Sergeant & Rawle, 229, has also been cited by the counsel for the plaintiff. The only matter, however, settled in it was, that a volnntary stranding of the ship, for the purpose of preserving the ship and cargo, the greater part of the cargo being thereby saved, but the vessel wholly lost, entitled the owners thereof to general average for this loss. The case of Caze v. Reilley, 3 Wash. C. C. R. 298, which is to the same effect, and was decided before Gray v. Wain, was also adduced in support of the plaintiffs' claim. But the stranding of the vessel in each of these two last cases, being considered as clearly voluntary, presents at once, an obvious difference between these and the present. In the former, for aught that appears, the vessel might have been kept out at sea, and have weathered the storm, so that the act of running them ashore was purely one of free agency on the part of the masters, the agents of the owners thereof, and done for the benefit of all concerned, thus bringing these cases within the reason of the rule which lies at the foundation of every case of general average Doubtless it is a general rule, constituting a part of the law of every commercial country, which has been acknowledged and acted upon from time immemorial, that if a part of the ship or cargo is voluntarily sacrificed to save the remainder from some impending danger, the owners of what is saved must contribute for the loss. To this rule, 250 MARITIME LAW. . [CH. VIII. however, there are some exceptions ; as where goods, for instance, on deck, are thrown over, it is held, in general, that no contribution can be claimed. But it is clear that the case in hand does not fall within either the terms or the reason of the rule. The running of the vessel ashore, here, can with no propriety be said to have been voluntary. Nor can it, indeed, be well said that the loss of the vessel was occasioned thereby. For according to the evidence of the master, which is all that we have, and all that the plaintiffs rely on to establish their claim, the vessel being on a lee shore, where she could not carry sail, they found it necessary for the preservation of the lives of the creiv, as the loss of the vessel was then certain beyond a doubt, being in four fathoms water, and the land within a mile of her, to run her ashore, and, accordingly, they slipped the best bower chain, put the vessel before the wind, and in a short time struck the land. In his cross-examination, he further states, that her situation was most desperate^ that she would have gone to the shore at all events ; but the mode in which the wit- ness run her ashore saved the lives of the crew and tended to save a greater proportion of the cargo. From this, it is per- fectly manifest that the loss of the vessel had become inevitable, as the consequence of the peril then present, and in such case, when the acts of the crew were intended to alleviate, instead of avoiding, such consequence, it seems hardly to be voluntarily incurring a loss. But Mr. Benecke, in his work on Insurance, ch. 5, p. 219, in which, says Chief Justice Abbott, in his publication on Shipping, 343, there is much learning combined with practical experience, meets the present case in so many words, and declared that " if the situation of the vessel were such as to admit of no alterna- tive, so that without running her ashore, she would have been unavoidably lost, and that measures were resorted to for the purpose of saving the lives or liberty of the creia, no contribu- tion can take place, because nothing in fact was sacrificed.''^ Here the plaintiffs sacrificed nothing ; their vessel was doomed to inevitable destruction by the peril of the sea which sur- CH. Vin.] OF GENERAL AVERAGE. 251 rounded her The loss of the ship in question appear- ing then to be inevitable, must therefore be borne by the plaintiffs, who were owners of her. This, says Mr. Stevens, the Digest and all authors are agreed on, for you cannot in equity convert a loss, which is inevitable, into a claim, for the preservation of property." Judgment accordingly. It will be remarked that in this case, there was no change in the direction of the vessel, no act of volition, except the acceleration of a catastrophe which could not be avoided, and this to preserve the lives of the crew, without regard to the cargo. <§) 314. We come now to the case of The Mutual Safety Insurance Company v. The Cargo of the Ship George, where there was a different adjudication, founded upon a ditlerent state of facts. The suit in this case, was commenced by three insurance companies, underwriters on cargo and freight, by a libel filed to recover the share of general average alleged to be due them by certain cargo shipped on board the Ship George, on account of a voluntary stranding of the vessel, to save it from foundering in consequence of a lealc at sea. The underwriters had accepted an abandonment and paid a total loss on the vessel and freight. The George, being insured by the libellants, (all the three companies having underwritten the vessel to the valued amount of $12,000 — $4,0U0 each — and one of them. The Mutual Safety Insurance Company having underwritten the freight to the amount of ^4,400, on a valuation of $6,800,) sailed in May, 1841, from New Orleans for Trieste, with a cargo of cotton consigned to the respondents, Reyer & Schliclc. When about six days out, the vessel met with heavy weather, and sprung a leak. The leak increased, and the captain, after a fruitless attempt to make the harbor of Nassau, finally, in order to save the vessel and cargo from foundering, ran The George on shore on a reef about three quarters of a mile from the shore at the west end of the Grand Bahamas. The vessel and freight were wholly lost. 252 MARITIME LAW. [CH. VIII. the former being sold as a hulk for a trifle, and after aban- donment to the underwriters a total loss was paid by them. A large portion of the cotton was saved, and the proceeds came to the hands of the defen ^ants, Macy & Son, on account of Reyer & Schlick, t'of owners or consignees. This libel was filed on the' grouncrchat the proceeds of the cargo were bound to contribute in general average to the loss of the vessel and freight. A foreign attachment was prayed for, against the defendants, Reyer & Schlick. There was little dispute on the facts. The answer of Barclay & Livingston, the agents of Reyer and Schlick, insisted that the vessel was run ashore to save the lives of the master and crew, and that the most expedient course had not been pur- sued in running the vessel on shore. The answer of J. Macy & Son admitted the funds in their hands. The only witness examined was Thomas S. Minott, master of The George. He testified that between the 17th and 22d of May, the leak had averaged from two hundred to twelve hundred strokes per hour, that the water was four feet in the hold, and increasing, when he determined, on the 28th, to run her ashore. The wind was light, with little sea. He testified positively that he run the vessel ashore to save vessel and cargo, and that he did not consider any life in danger, as they had good boats, and the weather was mode- rate. That if the cargo had been thrown overboard, the leak might have been stopped, if it was in the upper works, but he did not know where it was. That he thought there was a chance, although a small one, of keeping the vessel free, even without running her ashore or throwing over cargo. That he selected the place of running her ashore with the view, and in the hope of saving both ship and cargo. On this state of facts, the respondents insisted upon Bradhurst v. The Columbian Insurance Company, 9 Johns. R. 39, that the vessel being lost no contribution was due ; but the court, on the author- ity of Columbian Insurance Company v. Ashby, 13 Peters, 331, held otherwise, and the following decree was entered in favor of the libellants. "This case having been beared upon the pleadings and proofs, and having been argued by CH. VIII.] OF GENERAL AVERAGE. 253 Mr. Sedgwick for the libellaiits, and by Mr. Lord for the claimants, and due deliberation being had in the premises, it is considered by the court, that the libellants are entitled to recover against the claimants, and against the proceeds of the cargo owned by them, and saved from the wreck of the ship George, a contributory part in general average in the propor- tion the value of the cargo saved bore to the cargo on board paying freight," &c. In this case, it will be seen, there was an act of volition, in. circumstances admitting of choice; that the vessel was run ashore to escape another and dilfer- ent peril ; that the place of stranding was selected, and with the view and hope of saving both ship and cargo, and that in consequence of the stranding a large portion of the cargo was saved. The reader will at once perceive the material grounds of difference in the facts between this case and that of Meech v. Robinson, and the reason of such opposite adju- dications. <5. 315. Every extraordinary expenditure voluntarily in- curred in the course of a marine adventure for the protec- tion of the interests of others, must be considered as general average, whether that interest has its origin in the ownership of the property at risk, or in its insurance against ioss.^ But any injury to a ship from storm, or any accidents to her in the ordinary course of the voyage, are not to be contributed for. Hence, the loss of a mast, in carrying an unusual press of sail to escape from an enemy, being no more than a com- mon sea risk, is not a subject of general average.- The master is bound to do whatever reasonable skill and care can do, or that is necessary to be done and within his power to do, before resorting to extraordinary measures, to save ship and cargo. And whilst doing this, he is only performing his duty, and any loss that may arise therefrom, does not 1 2 American Leading Cases, 571. In luce verba. Potter i\ Union Ins. Co. 3 Sumn. 27. 2 5 Bos. & Pull. 378 ; 3 Kent, 237. MAR. 22 254 MARITIME LAW. [CH. VIII. furnish a claim for contribution ; it must be borne by the ship-owner. '• The broken tools of an artificer being no charge upon his employer." ^ Mr. Stevens, in his valuable work upon Average, contends, as matter of argument, that the repairs of the damage sustained by a ship voluntarily stranded to prevent her foundering at sea, or driving on the rocks, or to escape the enemy, are not a fit subject for gene- ral contribution. In both these cases, he says, the motive is wanting. In neither case can it be said that the master and crew did that for the preservation of the ship and cargo, when, strictly speaking, the object was so much higher — the preservation of life or liberty. ^ If the question was open to controversy, these views would be entitled to much weight. But the maritime law, and repeated adjudications founded upon it, are clear and decisive in favor of the claim to con- tribution in these cases, <§. 316. In the case of Taylor v. Curtis,^ it was held, that the expenditure of ammunition, in resisting capture by a privateer, the damage done to the ship in the combat, and the expense of curing the wounded sailors,* are not a sub- ject of general average by the law of England. Gibbs, C. J., in delivering the judgment of the court said : " The losses for which the plaintiffs seek to recover this contribution, are of three descriptions ; first, the damage sustained by the hull and rigging of the vessel, and the cost of her repairs ; second, the expense of the cure of the wounds received by the crew in defending the vessel ; third, the expenditure of powder and shot in the engagement. Nothing in foreign jurists ought to govern our judgment on these points, unless they have been sanctioned by received principles, decided 1 AbboU, p. 576. 9 Stevens on Average 34-37. 3 6 Taunt. 608. * The expense of curing the wounded sailors is wova provided for by the statute of 11 & 12 Will.' 3, c. 7, and is made a charge on ship, freight, and cargo. en. Vm.] OF GENERAL AVERAGE. 255 cases, or the general usage of merchants. But we find none of these lights that might guide us. We have been so long involved in war, that similar circumstances must have been of general occurrence, and similar claims would have been made on the one side, and allowed and submitted to on the other, if they were founded in law ; but this has not been the case ; these losses must therefore be taken not to fall within the description of general average. If, however, it came within the principle, it would equally be due to the plaintiffs, though this were the first instance in which the claim had been preferred. The measure of resisting the privateer was for the general benefit, but it was a part of the adventure. No pcti^ticular part of the property was volunta- rily sacrificed for ilie protection of the rest. The losses fell where the fortune of war cast them, and there it seems to me they ought to rest. It therefore follows, that these losses were not of the nature of general average, and that the plain- tiffs cannot recover." <§. 317. No case similar to Taylor v. Curtis is to be found -in our jurisprudence. Unless that decision is to be deemed law in our courts, there are considerations which may ap- pear sufficiently important, should the question again arise, to induce an opposite adjudication. The law, certainly in its practical operation, should be uniform and consistent. Why then, it may be asked, should a distinction be made between the injury incurred from stranding the vessel and the injury resulting from defending her against the enemy or pirate ? In both cases the master chooses the least of two perils. In both cases the whole adventure is endangered, the ship most so. In both cases the extraordinary act is done for the ulti- mate safety of ship and cargo. In neither case can it be strictly said, that " a particular part of the "property is vo- luntarily sacrificed for the protection of the rest," the object being the protection and safety of the whole. Wc are un- able to perceive any essential grounds of distinction between the cases, and the foreign jurists make none. Were the question open, we should incline to the opinion that both ui 256 MAKITIME LAW. [CH. VIII. the case of stranding, and of defending the ship against an enemy or pirate, the master and crew are only performing a duty which falls within the ordinary course of the voyage, and that the loss or damage arising therefrom, should fall Avhere it should seem properly to belong, upon the under- writers who have received premiums for their risk. But since the principle of contribution is applied to the one case, there is no obvious and apparent reason why it should not be extended to the other.^ «^ 318. Where a ship is captured by the enemy and whilst in his possession, but before condemnation, a jettison is made in circumstances requiring it, and she is afterwards retaken, contribution is due for the goods or stores thrown overboard. The property is not divested by the capture, without con- demnation ; and any necessary sacrifice made for the com- mon benefit, whilst a spes I'ecuperaridi remains, is very pro- 1 By the ordinance of Louis XIV. and the code Napoleon [U Ord, clc la Ma- rine, liv. 3, tit. 4, art. 11 ; Code de Commerce, art. 263;) the cure of the wounds of seamen, suffered in defending the ship from pirates or enemies, as well as injuries to the ship, are made the subject of general average. But the injury must be received in actual combat, and the cargo must be pre- served from the hands of the enemy, in consequence of the combat, or there is no claim for general average. Pothier, De Louage, Mar. n. 143, 191. In the case of Reed v. Canfield, 1 Sumn. Rep. 193, where it was held that a seaman who is taken sick, or is injured, or disabled in the service of the ship, without any fault on his own part, is, by the maritime law, entitled to be healed at the expense of the ship, it was observed, that cases may occur, where a seaman may be entitled to a far different compensation, as when he has gone beyond the line of his duty, and saved the ship from impending perils. There he may be entitled to a more ample compensation in the na- ture of a salvage, to indemnify him for any wounds or injuries sustained in this extraordinary service. The case put by Cleirac and others, {Jugemens d'Oleron, arts. 6 and 7, and note by Cleirac; Consolato del Mare, c. 182, (c. 137 ;) 2 Pard. Collect. Marit. 152 ;) of wounds sustained in defending the ship against pirates, may be of this nature. But it then ^xohz.h\y falls under the head of a general average, for the benefit of all concerned, or of a salvage service, which entitles the party to a full recompense. That is not the pre- sent case, and it may well be left for decision, until it shall arise directly in judgment. CH. VIII.] OF GENERAL AVERAGE. 257 perly regarded as the subject of general average. This doc- trine was declared in the case of Price v. Noble,i where it appeared that the plaintiff's ship, on her voyage from Bahia to Gibraltar, with a cargo of sugar, tobacco, and hides on board, belonging to the defendant, was captured by a French privateer, which took out of her the captain and crew, ex- cept the mate and two of her men, and put on board of her a French prize-master and part of the privateer's crew, who shaped their course for Marseilles ; and a storm arising, they threw overboard for the necessary preservation of the ship, and with the assistance and approbation of the mate, whom they called to their assistance in navigating the vessel, the guns, two anchors, two cables, and other stores from the middle deck. On the following day the ship was retaken by the mate, with the assistance of some Italians in the Frenchman's service, and was carried into Gibraltar. Under these circumstances it was held, that the plaintiff was enti- tled to recover of the defendant his contributory share of the average loss. <§> 319. The necessary costs and charges incurred after capture, in reclaiming and procuring the restoration of the ship and cargo, and the expenses attending their preservation during their detention, are to be charged and allowed as a ge- neral average, to be apportioned on the ship, cargo and freight. - And where a vessel and cargo are captured upon suspicion of having enemies' property on board, and the master, before adjudication, pays money for a compromise and release of the property, this is a fit subject for average or contribution between the cargo and the vessel. The master of the vessel, said Sewall, J., in the case of Douglass v. Moody,^ becomes of necessity an authorized agent for the owners, freighters, insurers, and all concerned, when the progress of the voyage 1 4 Taunt. 121. 2 Spafibrd v. Dodge, H Mass. 60. 3 9 Mass. 518. 22* 258 MARITIME LAW. [CH. VIII. is interrupted in a foreign port, either by a capture as prize, or by other detentions and casualties ; and whatever he undertakes, and whatever expenses he may incur, fairly directed to the benefit of all concerned, these become a charge upon them re- spectively, and as the case may be, as much as when incurred under a special authority and license, or pursuant to imme- diate request. The request and authority are necessarily implied, when the master exercises his discretion and judg- ment fairly. When his determinations and proceedings are within any usual course of business, as in the event of sea damage when he provides suitable repairs necessary for the prosecution of the voyage, the expenses may be more readily acquiesced in ; but the case is not stronger than a provi- sion fairly made in a case of unusual and unforeseen casual- ties. <§> 320. Whatever damage immediately arises from the act of jettison or other act of nec6*ssity, although such damage was not contemplated, constitutes a case of general average. Hence, if in cutting away a mast for the general safety of the ship and cargo, or as a necessary consequence of that act, the cargo is damaged, this damage must be included in a general contribution. The injury to the cargo, by the cutting away of the mast, is to be considered equally with the mast, a sacrifice for the common benefit, a price of safety to the rest ; and it is founded on the clearest equity, that all the property and interest saved, ought to contribute their due proportion to this sacrifice .^ The same principle applies to the case of damage to the cargo, by opening the hatches to effect a jettison, or by cutting holes for more easily accom- plishing that purpose. And the injury to the vessel, from cutting her decks or sides to facilitate a necessary jettison is to be borne as a general average. ^ <§, 321. General average can only arise where the sacrifice 1 Maggrath r. Church, 1 Caines, 196. S Abbott, p. 577. CH. YIII.] OF GENERAL AVERAGE. 259 has been made for the common benefit, and has accomplished the object. 1 Thus, in the case of Scudder v. Bradford,- it appeared that while the vessel was dragging her anchors towards the shore, the master cut away the masts to prevent her drifting ; but this measure proved unavailing, and a total wreck from stranding ensued. The only hope, said Judge Putnam, was, that by cutting away the masts, the anchors might bring up the ship, and prevent her drifting towards the shore. If that measure had succeeded, this would have been a case for contribution ; but it did not succeed. It cannot be affirmed that the property which was saved from the wreck, was saved by sacrificing the masts. The forlorn hope failed. <§. 322. Where the loss or damage is attributable to the usual chances and accidents of the voyage, a subsequent sacri- fice consequent upon such loss or damage, does not consti- tute the whole a general average. If there is any contribu- tion, it must be proportioned to the value of the voluntary sacrifice. Hence, when the masts, spars, rigging, and sails of a vessel at sea were carried away by the violence of the weather, and after hanging by the vessel's side for half an hour, were cut loose for the preservation of the vessel and cargo, the owners were held not entitled to contribution, unless, indeed, for the loss incurred from separating the masts and rigging from the hull, after they were carried overboard by the violence of the weather. The contribution could only be proportioned to the value of those articles, when thus hanging by the side of the vessel.^ But generally, a sacri- fice which is only a necessary consequence of a specific injury, previously suffered, is not a subject of general ave- rage. 4> 323. A voluntary act, and a direction of it, to the com- 1 Williams v. SiifTulk Ins. Co. 3 Sumner, 510. 2 14 Pick. 13. 3 Nickerson v. Tyson, 8 Mass. 4C7. 260 MARITIME LAW. [CH. VIII. mon preservation, are essential requisites in a claim for ge- neral average. If, therefore, a part of the cargo, in an attempt to save it, without any regard to the safety of the ship and the residue of the cargo, is lost, there is no ground for contribution. This principle was settled in the case of Whittridge v. Norris.^ Whittridge, the plaintiff, shipped a keg of dollars on board the ship Hope, for which the defend- ant, as master, gave a receipt, to be carried on a voyage to Calcutta, for the plaintiff's account, and at his risk, there to be laid out in piece goods, he allowing one third of the net proceeds for freight and commissions. The ship, when under the care of a pilot, after her arrival in Bengal Bay, struck ground, and was thought in imminent danger of perishing. In this extremity, and impelled by fears which exceeded the danger, as it proved in the event, the master and crew, acting by the advice of the pilot, took to the boats and forsook the ship. At leaving her they attempted to save some articles of the lading, such as were most easily come at, and some kegs and bags of dollars, and amongst the rest the plaintiff's ad- venture, were put on board the longboat. In proceeding towards the shore, the sea running very high, the longboat was found to be overladen, and it became necessary, for the preservation of the lives of the people on board, to light- en the boat, and some of the heavy articles taken from the ship were thrown overboard. In this jettison the plaintiff's keg of dollars was lost, and the longboat, with the people on board, and the remainder of the articles taken from the ship, reached the shore in safety. The ship, which had been left with her sails standing, was seen on the next day drift- ing towards the same shore, and was immediately regained by the master and crew, and not having suffered any mate- rial damage, was taken, with the remainder of her cargo, to Calcutta. The question presented for the decision of the court was, whether upon these facts, contribution was due for the goods thrown overboard, either from the cargo saved 1 6 Mass. 125 ; see also 2 American Leading Cases, 563. CH. VIII.] OF GENERAL AVERAGE. -"^ in the Ship, or from that saved in the boats. It was held not to be a case of contribution. The reason in respect to the cargo saved in the ship is, that the goods were not taken out of the ship for the purpose of preserving the rest of the cargo ; and the reason in respect to the cargo saved in the boats is, that the goods in the boat and the jettison from it were thus exposed together in consequence of a previous peril, and for the purpose of saving what could be saved, without any mutual concert or design of the parties inte- rested There was no common engagement or common bene- fit intended. The crew lightened the boat, as they were justified in doing, to save their lives. The goods thrown out for the purpose of contribution were in no other situation than that of goods left on the ship. If the ship had per- ished, the event would have been precisely the same. It the goods lost in the jettison had been left m the ship, the danger from overloading the boat would not have been in- curred. The eventual safety of the ship and loss of pro- perty thrown overboard without any regard to the satety ol ihe ship, or of the other effects taken into the boat, afforded no case of contribution or average.^ <^ 324. When a vessel is accidentally stranded in the course of her voyage, and by labor and expense is set afloa^, and completes her voyage with the cargo on board he ex- pense bestowed for this object, as it produces benefit to al. so it is a charge upon all, according to the rules of appor Ling general average.^- But if the vessel be stranded ad ot go^t off, and the cargo is transported in l-§bters to te port of destination and thus saved, the expenses of liglU - a.e and transportation of the cargo are general average. The expenses are incurred in laboring for the safety and re every of the cargo from shipwreck, and the general coninbution s flunded on equitable principles. It is not the ordmary 1 Abbolt, p. 589, note. „ n- i i 2 Bedford Insurance Co. v. Parker, 2 Pick. 1. 262 MARITIME LAW. [CH. VIII. case of conveyance in another ship or boat, where the expense falls on the ship-owner, bat the ship and cargo are both in jeopardy, and in the joint effort and expense for the recovery of both, the ship is lost and the cargo saved.i if the cargo sustains damage during the passage in the lighters, such damage must be embraced in the objects of contribu- tion.2 The expense, also, of extra assistance to pump a ship, whilst seeking a port of necessity, is general average. ^ <§, 325. Where a ship is stranded, and a part of the cargo is immediately taken out and delivered at the expense of the ship-owner, at the port of destination, to the persons to 1 Heyliger v. The New York Firemen's Insurance Co. 11 Johns. 85. Jones, J., in Lewis v. Williams, 1 Hall, 431, said, the case of Heyliger v. New York Firemen's Insurance Co. 11 Johns. 85, was, in strictness, salvage and not eo nomine an average loss ; the stranding was a disaster which befel the ship from accident, and was not an act of volition, nor was there any sacrifice or exposure of any part of the common adventure intrusted to the charge and management of the master, for the common safety or benefit of all the interests in jeopardy. But in its leading features and practical re- sults, it was very analogous to that species of general average which is now before us, and the reasonable and just rules applicable to average contribution were applied to it by the court. And if the expenses incurred in saving the cargo from the wreck, when the stranding was not a sacrifice for the general safety, and the vessel was totally lost, were a legitimate charge upon that carjTo in common with the freight and materials of the wreck, on the princi- pie of a joint and common benefit conferred by those expenditures upon the whole, surely the expenses and damages resulting from the removal of goods from the lighters, and the greater exposure of the goods in the lighters for the purpose of rescuing the vessel and cargo from peril, must have as strong a claim to contribution from the cargo and freight which participated so largely in the benefit of that removal and exposure of the goods that were damaged. In that case stress was laid upon the agreement of the parties to attempt the deliverance of the vessel and cargo from the perils that sur- rounded them ; which was relied upon by the counsel as constituting a casus fcederis, which distinguished it from the common case of the transportation of the goods from the wreck, to the port of destination in a substituted vessel, and gave it the impress of a case of average and contribution, and the rea- soning of the court, is based upon tliat distinction. 2 Lewis V. Williams, 1 Hall's Rep. 430. 3 Orrok v. Com. Ins. Co. 21 Pick. 456. \ CH. Tni.] OF GENERAL AVERAGE. 263 whom it belongs, the part of the cargo thus witiidrawn must contribute, in proportion to itsvakie, towards the subsequent expenses of getting the ship atloal, and enabling her to complete her voyage. This principle was settled in the case of Bevan v. The Bank of the United States.^ The action was assumpsit, brought by the owners of a ship called the Edward Bonafle, which sailed in November, 1831, on a voyage from New Orleans to Philadelphia, against the defend- ants, who were the owners of the sum of $90,000 in specie, shipped on board this vessel. The plaintiffs sought to reco- ver the sum of $1,178.75 with interest, which they alleged to be the proportion the owners of the specie were bound to contribute towards certain charges claimed to be general average. On the trial, it appeared that the vessel arrived in Delaware Bay in the beginning of December, 1831, and after encountering various difficulties, became stranded and ice- bound near Reedy Island, in a situation of imminent peril. It was necessary to remove her cargo, as in the case of a wreck. Among the first articles landed was the specie in question. It was received on the ice in sleds, in the morning of the 16th of December, 1831, and immediately conveyed to the shore. It was then sent to Philadelphia, and on the following day delivered to the defendants, who afterwards paid $225, the amount of freight stipulated by the bills of lading. Eight weeks afterwards, the vessel reached Phila- delphia in safety, with the remainder of her cargo, which had been, in whole or in part, discharged into lighters, and afterwards reshipped. During this period of eight weeks, a large number of additional charges had been incurred for the safety of the vessel and the residue of her cargo. Kennedy, J., instructed the jury that the defendants were liable to contri- bute to the subsequently-incurred charges, the same as if the specie had remained on board. The jury accordingly found a verdict in favor of the plaintiffs for the sum they claimed. A rule for a new trial Avas granted. On the argument before 1 4 Whart. 301. 264 MARITIME LAW. [CH. VIII. the Supreme Court, it was contended by the counsel for the defendants, that when they received the specie, which was the only part of the cargo to which they had any claim, it could not be said, that after that, they had either actually or constructively any thing belonging to them on board of the vessel, or in charge of the owners of her, and having nothing on board, nor any thing in charge of the owners of the vessel, the expenses incurred subsequently could not be claimed to have been laid out on their account or for their benefit, in any way whatever, and, consequently, it being utterly impossible that they could derive any benefit from such expenditure, it would be unreasonable and unjust to make them liable to contribution for any part of them. They maintained that all connection between them and the vessel and the residue of the cargo, or concern with either, ceased immediately upon the actual receipt by them of the specie. Kennedy, J., in delivering the judgment of the court, said, the ground of objection presented by the defendants' counsel to the plaintifls' claim, was not only plausible, but on first view would seem to have great force in it. In order, however, to test it thoroughly, it would be proper to see what the practical operation of the principle contained in it would lead to; because, if it should be found to operate unequally upon shippers, whose rights and claims are in every respect similar and equal, and should at the same time put it in the power of the master of the vessel to throw the greatest proportion of the expense, incurred by the measures taken to save the vessel and cargo, upon whomsoever of the shippers he pleased, it w^ould be inexpedient and unjust to adopt a principle of such tendency. Suppose, then, for ex- ample, that a vessel with a cargo of the same kind of goods throughout on board, belonging to twenty diff"erent owners, each owning an equal quantity, is run on shore within eight or nine miles of the port of destination, for the purpose of saving her and her cargo from an impending danger, when it becomes requisite to unlade the vessel, and to convey the cargo thence by wagons to the place of delivery, in doing of 265 CH. YIII-] OF GENERAL AVERAGE. which two months are consumed, it is obvious, that according to the principle contended for on behalf of the defendants, the owner whose goods are first taken out of the vessel and conveyed immediately to him, will have comparatively but little of the whole expense to pay, whereas he who receives his -oods last will have perhaps more than twenty times as much to pav as the first. The charges being made general avera-e as 'to the first who receives his goods, down to the time of their being delivered to him, the Unst has to pay one twentieth part of these charges, and upon the same principle one nineteenth of the expenses at.'ending the saving and delivery of the goods to the second, and so on till his own turn comes, when he has to ..ay all the expense of saving his own portion of the carg.. K this wou d be the natural operation of the rule contended for by the defendants, -and that it would be in so^-ne cases that may arise I think is per- fectly clear — it w^ald work great injustice, because it would subject those whose goods are saved and delivered last to the payment of ^ portion of the expenses incurred in saving tho^e of tl:e first, without requiring the first to pay any part of the expenses incurred in saving the goods of the last, but leavin- them to pay the whole of it themselves. Thus, we seetha^t the rule would operate partially and unequally, with- out imposing the obligation of reciprocity, whicli seems to be at the very foundation of general average. To save the vessel and cargo upon such occasions, from the danger or peril with which they are threatened, frequently requires a series of acts to be performed, which may require weeks, el- even months, in order to effect every thing growing out of the danger which rendered it expedient to run the vessel on shore for the purpose of preserving her and the cargo from it This being the case, it is impossible to apportion the expense in such manner as to do equal justice to a I con- cerned, without including all the expenses incurred by the various acts and measures performed and taken, which served to preserve the vessel and every part of the cargo from the common danger with which all were threatened ; and makuig MAR. ^^ 266 MARITIME LAW. [CH. VIII. each one then concerned pay his proportionable part of the aagregate thereof, according to the vakie of his interest in the vessel and cargo, or either No case, and as it appears to me, no authority has been adduced which goes to sustain the principle contended for, and the distinction taken on the part of the defendants. <§> 326. Expenses incurred in consequence of an act of necessity, voluntarily done for the common benefit, are general average. Thus, where a ship met with an accident by a peril of the sea, in consequence of which she was necessarily compelled to go into port to refit, the expenses of unloading, reloading, storage, 329. The American decisions make no distinction in the causes of the injuries tiiat compel vessels to seek a port of necessity to repair, so far as the adjustment of the attendant expenses is concerned. If the injury arose from a voknitary sacrifice, or from a peril of the sea, in either case the wages and provisions of the crew from the time of putting away for the port, and every other expense necessarily incurred during the detention, for the benefit of all concerned, are to come under the head of general average.^ But the expense of the repair of the ship itself, where the injury arose from a peril of the sea, and not from a voluntary sacrifice neces- sarily made, for the common benefit, is a distinct charge upon the ship.- And in this our law agrees with the English. <§> 330. Upon the point, whether the wages and provisions of the crew, during a detention by an embargo or hostile seizure, are general average, the American authorities are divided. The courts of New York and Massachusetts de- cide, that in cases of embargo they are not/^ The Supreme Court of Pennsylvania, on the other hand, determines that they are.* Chief Justice Tilghman, in delivering the judg- ment of the latter court, in the case of the Insurance Com- pany of North America v. Jones et al. observed, that " The criterion of general average is, were the expenses ?iecessa?77y and unavoidably incurred for the general safety of the ship and cargo ? " And in cases of capture, the courts of New York hold that the wages and provisions of the crew during the detention are general average.^ "When it is considered," observed Judge Livingston, in Leavenworth v. Delafield, " that capture is a disaster which generally happens without 1 Vide Abbott, 5th Am. edit. Boston, 181G, pp. 595-G02, and the author- ities there cited. 2 4 Mass. 548, Padelford v. Boardman. 3 7 Johns. 431 ; 14 Mass. G6. 4 2 Binn. 547. 5 Leavenworth V. Delafield, 1 Caincs, 573. 23* 270 . MARITIME LAW. [CH. VIII. fault of the owner of goods or vessel, but by superior force, against which no human precaution can always provide, and that the expenses, here in dispute, are incurred in consequence of this vis major or casus fortuitus, and for the common benefit of all, it is not easy to assign a reason why they should be borne by one of the parties in misfortune, rather than another." In Spafford et al. v. Dodge et al.^ the Su- preme Court of Massachusetts declared a directly opposite judgment. Unavoidable detentions and losses, that arise from accidents beyond the control of the master, were held to be distinguishable from those cases where it was necessary to go into port, to repair damages sustained during the voyage from the perils of the sea. <§. 331. From this contrariety of decision, it is impossible to deduce any general rule. And when we turn to the fo- reign writers we find them equally contradictory, although the exclusion of the wages and provisions of the crew, dur- ing an embargo or arrest of the vessel, from a general ave- rage, unless the detention arose whilst the ship was in a port of necessity, would seem to have most advocates. There are very obvious reasons why the principle of general ave- rage should nor be applied to cases of this nature. The ship- owner is a common-carrier. His employment is attended with hazards and risks. He voluntarily encounters them. Why, then, should the cargo be charged with expenses which arise from the risks and incidents of the carrier's adventure ? The crew, says Pothier, are maintained during the detention at the exclusive expense of the owner, for he owes their ser- vices to the shipper for the voyage, and the price of their services is embraced by the freight. Besides, what single 1 14 Mass. 66. Where a vessel goes ashore in a storm, the labor and board of the master and crew during the time the ship is repairing damages, are not subject of general average. The master and seamen are attached to the ship and bound to do service ; but otherwise of the labor and board of extra hands hired to assist the seamen belonging to the ship. 2 Met. 140. CH. Till.] OF GENERAL AVERAGE. 271 characteristic do we here find of the case contemplated by the Rhodian law ? Does the delay, whether arising from embargo or hostile seizure, proceed from the act of the mas- ter, or persons belonging to the ship ? Is it for the general benefit ? ^ To neither of these questions can an aflirmative answer be given. " Why, then, should victualling and men's wages be deemed a general average any more than the inte- rest of money, and the damage caused to the cargo by the delay ? "^ But since the rule is settled in the principal com- mercial States of our Union, that the wages and provisions of the crew, when the vessel is compelled to go into port to repair an injury arising from a peril of the sea, are general average, it is difficult to perceive why the same general rea- soning that supports their claim to contribution in this case, will not equally entitle them to contribution in cases of de- tention from capture or the orders of a sovereign power. The detention in each case arises from necessity. In the one case, inevitable accident compels the master to go into port to refit. In the other cases, irresistible force is the cause of the delay. The mind and agency of the master and crew, so far as the primary cause of the detention is concerned, are no more voluntarily employed in the one case than in the others. For that which necessity compels one to do is not voluntarily done. We must yield to necessity, and obey its behests ; but in so doing, it cannot be said that we act from judgment and will. Since, therefore, the American courts include the wages and provisions of the crew, whenever a vessel goes into port from necessity, arising from a peril of the sea, it should seem that they were entitled, upon the ground of analogy, to be included whenever the necessity that detains a. vessel in port arises from capture or em- bargo. 1 Abbott, p. GOO. 2 Aflrian Verwer, an old writer on Insurance, quoted by Stevens on Average, p. 40. 272 MARITIME LAW. [CH. VIII. <§) 333. Where the master is compelled to sell a part of his cargo to obtain money for repairs and supplies reasonably fit and proper for the ship, mider the actual circumstances of the voyage, the loss the shipper sustains in consequence of the sale of his goods, thus necessarily made, must be borne as general average. In principle, it is like the sacrifice made in a case of jettison. Mr. Stevens justly observes, that it is the same thing to the merchant, when the goods are taken from under his control, whether they are sold or thrown into the sea.i The ship and remaining cargo are equally bene- fited in the one case as in the other, and equally bound to contribute. <§> 333, The costs which are incurred by going under pro- tection of convoy, in a case requiring such protection, and all consequent detention, is a subject of general average.^ So, also, the loss from cutting a cable, in order to sail with the convoy to avoid capture, is considered as general average. It is a sacrifice deliberately made, to avoid an impending peril, namely, the peril of capture. ^ *§) 334. We are to consider. Thirdly, What articles must cojitribute to general average losses and according to what rule. The Rhodian law, as it contains the principle of the 1 Stevens on Average, p. 21 ; The Ship Packet, 3 Mason, 255. A sale of a part of the cargo by the master of a ship, for the necessities of the ship, says Story, J., in this latter case, is in the nature of a compulsive loan, for the benefit of all concerned, and to enable the ship to prosecute her voyage. It bears a considerable resemblance to the case" of a jettison, for the owner is deprived of his property for the common good, and to him it must be immaterial whether the loss be by a sacrifice at sea or on shore. See also Giles v. Eagle Insurance, 2 Met. 140, where it was held, that when a ship goes ashore in a storm, and expenses are incurred in getting her off, and a part of the cargo is necessarily sold to pay such expenses, the loss on the sale of outfits is general average. 2 Jacobsen's Sea Laws, p. 349. 3 2 Phillips on Ins. 236. CH. VIII.] OF GENERAL A\T;RAGE. 273 doctrine of average, as now applied by commercial states, so it expresses the rule by which the losses incurred from a jettison are apportioned among the dillerent interests bene- fited by the sacrifice.i The general principle involved in the law de jactu has been extended to a variety of cases com- prehended in its reason, but doubtless not contemplated by its authors, whilst the application of the rule of apportion- ment has been confined within narrower limits than were originally assigned to it. The Rhodian law makes all the goods on board, including those belonging to passengers, and also their baggage, wearing apparel, rings, and other orna- ments worn upon the person, liable to contribute. But our law, as it exempts persons from contribution, so also it exempts whatever attaches to, or is merely accessory to, the person. <^ 335. The general rule is, that ship, freight, and mer- chandise, of whatever kind, and to whomsoever belonging, contribute. Goods contribute according to their value, and not according to their bulk or weight. The same rule applies to bullion and jewels put on board as merchandise. By some of the foreign codes, goods of thejdng are exempted from contribution to general average.^ But no such distinction is regarded in this country. Goods of the government equally with those of individuals, must contri- bute.-'^ Goods carried on deck, if thrown overboard, are not contributed for ; if saved, they must contribute. If mariners have goods on board, which they are privileged to carry, that circumstance does not exonerate them from contribution. Goods thrown overboard contribute in a general average equally with those saved, otherwise the proprietors of those goods would receive their full value, and pay nothing towards the loss.^ It is but reasonable that all the parties 1 Dig. 14, 22. 2 Jug. Oler. c. 8, No. 8. 3 United Stales v. Wilder, 3 Sumner, 308 4 Abbott, p. 008. 274 MARITIME LAW. [CH. VIII. interested in a marine adventure, or rather all the interests concerned, should bear a proportionable part of the loss sus- tained from a common calamity. ■§. 336. In a case of general average, where the cargo is thrown overboard, and no freight earned, contribution is due from the ship alone. The freight is not included.^ Where only pro rata, freight is earned, only pro rata freight contri- butes. The freight actually gained in the voyage, and not what the vessel would have gained, if the voyage had been completed, is the rule of contribution. ^ It may, perhaps, be superfluous to add, that the whole freight contributes only where the cargo is delivered at the port of destination. To ascertain the contributory value of the whole freight, one third is deducted from the gross amount.^ In Humphreys v. Union Insurance Company, Story, J., said that the practice in Massachusetts had long been, in cases of general average, 1 Tudor V. Macomber, 14 Pick. 34. 2 Maggrath v. Church, 1 Caines, R. 196. Freight is due 'pro ratd. when the consent of the merchant, either by words or actions, has been expressly- given or may be fairly inferred, to accept his goods at an intermediate port. In such case, the original contract is dissolved, and a new one arises by im- plication. Amroyd v. The Union Insurance Co. 3 Binn. R. 437 ; Hurtin v. The Same, 1 Wash. C. C. R. 530 ; Callender v. Insurance Co. of North America, 5 Binn. 525 ; Gray v. Wain, 2 S. & R. 229. In the case of the ship Hooper, 3 Sumner, 542, Mr. Justice Story stated the general principle of the maritime law to be, that no freight is due unless the goods are deli- vered at the place of destination. The only exception to the general rule is where the further prosecution of the voyage has been abandoned or waived by both parties. In that case, pro rata freight is due. 3 Humphreys v. Union Insurance Co. 3 Mason, 439; Bedford Com. Ins. Co. V. Parker, 2 Pick. 1 ; 2 Phillips's Insurance, 248. The Ordinance de Marine c. xxvii. xiii. provides that the master shall be paid the freight of goods thrown overboard, for the common safety, out of the contribution. "As the freight," says Pothier, in his work on Maritime Contracts, " is only due to the owner of a vessel as a kind of indemnity for her deteriora- tion and expenses incurred by the voyage, it is subjecting him to a double burden, to make him contribute for the entire value of the vessel and of the freight. Our ordinance, therefore, has adopted the middle course of making him contribnte for one half of the value of each." Vol. ii. n. 119, p. 411. en. YIII.] OF GENERAL AVERAGE. 275 to ascertain the contributory value of the freight by deduct- ing one third of the gross amount. The rule was, doubtless, originally arbitrary, but founded upon a general average esti- mate of the usual deductions of wages and expenses from the freight, in ordinary voyages. The object was to relieve each particular case from the embarrassment of miscalcu- lations and questions about small items, which could not always be fixed by evidence absolutely exact. It has the benefit of certainty and universality in its application, and this consideration outweighs any slight deviation from prin- ciple, which may possibly be involved in it. It as often works in favor of one party as the other. If such a practice, existing for a long time by the acquiescence of the whole commercial community, were now for the first time in ques- tion, I should not hesitate to adopt it as reasonable. But it has long been acted upon by the profession, and has received general sanction in our courts. It cannot now be departed from without removing landmarks. <^ 337. In Leavenworth v. Delafield, which was the case of a vessel captured and carried in for adjudication, but after- wards liberated and performing her voyage, it was held, that in the adjustment of the average, the freight should be valued at one half the gross sum agreed to be paid.^ The injustice, said Livingston, J., in delivering the judgment of the court, of making the ship and freight contribute for their full value, has already been stated. The first will be injured by the voyage, and oftentimes the whole freight received will not be equal to the expenses and disbursements to which the owner has been exposed. After the best reflection I have been able to bestow on the subject, I am for valuing the freight at one half the gross sum agreed to be paid. This rule may be deemed arbitrary; so will any that can be devised, and yet, perhaps it will come as near as any other in producing a contribution in proportion to the real interest 1 1 Caines, R. 573, 578. 27G MARITIME LAW. [CH. VIII. in jeopardy. The decision in Leavenworth v. Delafield, as it respects both ship and freight, should be understood with reference to the peculiar circumstances before the court, namely, that no disaster had occurred to injure the vessel or cargo. <§) 338. There are certain articles exempt from contribu- tion from policy. Thus, the mariners' wages do not contri- bute, except in the single case of the ransom of the ship.^ They are made contributory in this instance to encourage resistance. In all other cases they are exempt, lest, says Emerigon, the apprehension of loss should restrain them from executing the necessary measures of safety.^ <§) 339. The place at which the average is to be adjusted is the port of destination. If there is no special agreement to the contrary, such adjustment binds all parties. The weight of authority, both in England and this country is, that the items included, and the sums apportioned and paid according to the law of a foreign country, as a general average, in an adjustment made, there (and a foi'tiori, if enforced by the public tribunals there,) are quoad the items and the rule of apportionment, conclusive upon, and payable by, the under- writers here, as a general average, although not apportioned in the same manner, and not deemed items of general average by our law.^ But a foreign adjustment founded in mistake, and assuming a case of general average, where none exists, is not binding.'* In Thornton v. United States Insurance 1 Ordinance de Marine, § 29, art. xx. 2 Tome i. p. 602. 3 Peters v. Warren Insurance Co. 1 Story, 471 ; Simonds v. White, 2 B. & C. 805 ; Strong v. Firemen's Insurance Company, 20 Pick. 411 ; Strong V. New York Firemen's Ins. Co. 11 Johns. 323; Depau v. Ocea^ Insurance Co. 5 Cowen, 63 ; Clark v. Union Insurance Co. 7 Mass. 365. 4 Lennox v. United Ins. Co. 3 Johns. Cases, 178; 3 Kent, 243. The question in Lennox v. The United Insurance Co. was whether tbs plaintiff should recover a partial loss only, or the amount paid on the adjustment of a CH. Yin.] OF GENERAL AVERAGE. 277 Company,^ it was held, that in an action on a policy of in- surance, by the owner of a ship against the underwriters, the adjustment of a general average loss is not conclusive on the owner, but he may show that items of loss were omitted in such adjustment, which, by the laws of this coun- try, where the contract is entered into, should have been included. As between the parties, said the court, a foreign adjustment is conclusive. The party contributing can re- cover nothing back, the party to Avhom the contribution is made can recover nothing further, and he who has been com- pelled actually to contribute, on the basis of the foreign adjustment, can recover of his insurer the amount thus con- tributed, and nothing more. To this extent, we admit the conclusive character of a foreign adjustment, but have been unable to find adjudged cases to carry us further. We have general average at Lisbon, and it was decided that he should recover a par- tial loss only, on the ground that, according to our law, the staves on the deck of the vessel, thrown overboard in a storm to lighten her, could not be brought into a general average. What would have been the eflect of this adjustment, if the jettison had, according to the laws of this country, formed a proper item in making it up, is left undetermined. Vide Strong v. Fire- men's Insurance Co. 11 Johns. 332. The decision in Lenox r. The United Insurance Co. is not altogether satisfactory, and it was said by Jones, J., in the case of Lewis v. Williams, 1 Hall, 430, that the principle it established was untenable. The reasoning of the court went upon the ground liiat the rights of parlies who have entered into a contract of insurance at the home port, must be interpreted according to the kx loci contractus. And, there- fore, that the loss in this case, being only partial by the law of the State where the contract was made, the parlies were not bound by a foreign adjustment, which considered it a general average. Tiie parties, said the court, must be held to have had in view the law of the State wliere the con- tract was made. Without considering the question whether this was not a case for the application of the rule, that a contract, as to its validity, nature, obliiation, and interpretation, must be 'governed by the law of the place of performance, it would seem that the court proceeded on an erroneous princi- ple, for when, in the route of a voyage, the loss is occasioned by the perila insured against, which is made a general average, and settled, as it must ho, in the foreign port, (for the master can compel the adjustment,) the insured has a right to call on the insurer to reimburse what he has thus been obliged to pay. 1 3 Fairfield, 150. MAR. 24 278 MARITIME LAW. [CH. VIII. found no case, where the party to whom the contribution has been made has been restricted, in his claim upon his underwriters, to the sum apportioned as his share of the loss, by the foreign adjustment, when that sum fell short of a complete indemnity, according to the law of the place where the contract of assurance was entered into. If the foreign adjustment includes, as general average, what constitutes only a partial loss or particular average, according to the authorities, the adjustment is not binding upon the under- writers, either because the loss was not covered by the policy, or not coming within the term general average, is not therefore to be adjusted abroad, and we do not perceive any good reason against applying a similar rule m favor of the insured, in cases where, by the foreign adjustment, losses are excluded, which by the law of the place where the contract was made, are considered as falling within general average. .... We cannot admit that the contract is to be construed by foreign law or foreign usage, or that we are to resort to either to ascertain what losses are covered by it, or what is to be included in each description of loss.^ <§> 340. The ship contributes in general average according to her value at the port of destination ; but if she be lost under circumstances entitling her to contribution, her value is to be estimated according to the price she would have borne at the place whence the voyage commenced, deducting therefrom a reasonable sum for the expenses of carrying her there, and for any deterioration she may have suffered by wear and tear, up to the time the loss accrued. ^ In cases of jettison, on the contrary, the goods must be valued at the price they would have been worth at the port of delivery. " The person," says Chancellor Kent, " whose loss has pro- cured the safe arrival of the ship and cargo, should be placed on equal ground with those persons whose goods had safely 1 Vide preceding note. 2 Gray v. Wain, 2 Sergeant & Rawle, 229 ; 3 Kent's Com. 242. CH. VIII.] OF GENERAL AVERAGE. 279 arrived, and that can only be by considering his goods to have also arrived.^ <§> 341. If the voyage be broken up, and the vessel returns home, in the adjustment of the general average, the actual cost of replacing the goods sacrificed, if they can be replaced, if not, the invoice price, including shipping charges and pre- mium of insurance, is the standard by which to estimate their value. 2 Thus, a vessel loaded with ice, shipped at Boston for Charleston, while on the voyage met with a disaster on the south side of Cape Cod, when she had performed about one eighth part of her voyage. In consequence of the dis- aster, it became necessary to throw overboard the cargo of ice, and the voyage was broken up. The question arose as to the value at which it should be contributed for in general average, whether at the value in Boston, which was the expense of cutting, storing, and transporting to the vessel and shipping, or at the port of distress, where it could not have been sold, and was in fact of little or no value, or at Charleston, where, if it had arrived safely, it would have been of much greater value. It was held that the value of the cargo must be contributed for at the port of departure, and not according to the value at the port of distress, where it could not be sold, and probably had no value at all. Where, said Mr. Justice Putnam, giving the opinion of the court, the voyage is broken up near the port of departure, and the vessel has not adopted an intermediate port of destination, but has returned home, and the freight has not been saved by the jettison, the contribution to the general average should be between the ship and cargo upon the assumed value of the cargo at the port of departure.^ If there is no invoice in a case of this nature, then the value stated in the bill of lading is conclusive between the owner of the ship 1 Gray v. Wain, 2 S. & R. 229 ; 3 Kent's Com. 212. 2 Tudor V. Macomber, 14 Pick. 31. 3 Id. ; 2 Phillips on Insurance, 24.0. 280 MARITIME LAW. [CH. VIII. and the owner of the cargo. ^ The equity of the principle adopted in the case of Tudor v. Macomber would seem to be apparent. The description of cargo sacrificed may have risen in price since the purchase, and the invoice may, there- fore, be a wholly incorrect standard of its present value. The actual cost of replacing it is the proper criterion of its worth. <§> 342. When the vessel, from such misfortune as entitles to contribution, is compelled to return to the lading port, the rule in England is to make the goods contributory according to the invoice price ; for the price of sale is unknown.^ In that case, the goods are saved, and contribute to the repair of the ship ; but in Tudor v. Macomber, the cargo was wholly sacrificed, and the ship was made contri- butory to the loss. The difference of the circumstances in the two cases will suggest the reason of the rule adopted in the latter. In the Mutual Safety Insurance Company v. Cargo of Ship George,^ it was adjudged, that the cargo be valued, for the purpose of contribution, at the prices stated iu the invoice and bills of lading, or either, if both could not be produced, deducting therefrom salvage and other necessary charges incurred in consequence of the wreck of the ship. In this case, the ship was stranded and unable to return to the port of departure, or to adopt an intermediate port. She was wholly lost, the hulk selling but for a trifle, whilst the greater part of the cargo was saved. «§) 344. The reason of the rule estimating the value of the ship and cargo by a difl'erent standard, the one by the value at the port of departure, and the other at the port of dis- charge, are most satisfactorily stated by Chief Justice Tilgh- man, in Gray v. Wain.* In case of a jettison, he observes. 1 Tudor V. Macomber, 14 Pick. 34. 3 Abbott on Shipping, 607. 3 New York Adm. 8 Law Rep. 361. 4 2 S. & R. 229. CH. Yin.] OF GENERAL AVERAGE. 281 the rule is now fixed, that the goods thrown overboard, shall be valued at the price they would have been worth at the port of delivery. This is a just estimate, because it puts the owners of the lost goods upon the same footing with the owners of those which were saved, and it has the advantage of being easily reduced to practice, the price actually brought by the goods saved at the port of delivery, serving as a standard for those which were lost. But the case is differ- ent when contribution is to be made for a lost ship. We have no such standard there, by which the value can be regulated. The goods are intended to be sold at the port of destination ; and, being selected for that market, may be sup- posed in general to fetch a good price there. Not so the ship, which in many cases delivers her cargo and returns to the place where the voyage originated, her owners having had no intention to sell her at the port of delivery, which they may have known to be no market for ships. It would seem, therefore, more just to value the ship according to the price she would have borne at the place where the voyage com- menced, deducting the expense of carrying her there. <§. 344. The rule of adjustment acted upon in Leavenworth V. Delafield and in Gray v. Wain, was an arbitrary one. The value of the ship at the port of departure was ascertained by deducting one fifth from her value at the time of commenc- ing the voyage for supposed deterioration. This rule was deemed in those cases more equitable, more certain, and less liable to accidental fluctuation, than the valuation at the port of necessity. In Mutual Safety Insurance Company V. Cargo of Ship George,^ which was the case of a ship wholly lost by stranding, the hulk selling but for a Iriile, it was decreed, that for the purpose of contribution the ship should be estimated at her value at her port of departure, when the voyage commenced, such value to be proved on 1 8 Law Rep. 361. 24* 282 MARITIME LAW. [CH. Vin. the part of the libellants, (the valuation m the policy not being taken,) subject to such deduction for wear and tear up to the time of her loss as on the part of the claimants should be found to be reasonable, and also deducting all sums received by the libellants, on sale of said ship, or any part of her tackle or apparel after the stranding. Here the arbitrary rule of deducting one fifth from the value of the ship at the commencement of the voyage, for supposed deterioration, was discarded. The libellants were required to ascertain by proof the actual tear and wear of the vessel up to the time of her loss. Where the actual deterioration is susceptible of proof, there certainly can be no good reason for adhering to an arbitrary rule of estimation, which may work positive injustice. In Bell v. Smith,i it appeared that the vessel was so much deteriorated by the perils of the sea as to render a sale abroad necessary. It was held, that the sale determined the real value of the vessel, and that the owner was charge- able only on the amount for which she sold. <§. 345. In adjusting averages, the rule of deducting one third from the price of the new articles, such as masts, cables, and sails, to replace the old, is settled and universal. The usage is established, and in its practical operation must be sometimes favorable to one side, and sometimes to the other.^ The reason of this rule is obvious. The new articles will, in most instances, be of greater value than the articles lost. <§. 346. In the case of Simonds v. White,^ it was said that all nations were agreed upon the point, that the master is not compellable to part with the possession of goods, until the sura contributable in respect of them, be either paid or 1 2 Johns. R. 98. 2 Nickels v. Marine Fire and Marine Insurance Co. 11 Mass. 253; Dunham v. Com. Ins. Co. 11 Johns. Rep. 315. 3 Barn. & Cress. 805, 811. CH. VIII.] OF GEI^RAL AVERAGE. 283 secured to his satisfaction. The master and owners have a lien on the goods, and it is tiie master's duty to detain the cargo, until the contribution towards the average is either paid or secured.^ The lien attaches to the goods belonging to a sovereign power, as well as to those of individuals.- 1 Strong V. Firem. Ins. Co. 11 Johns. 321 ; The United States v. James Wilder, 3°Sumner, 308. 2 The United States v. Wilder, 3 Sumner, 308. In this case, the question whether the same lien exists in regard to goods belonging to the United States, as against the goods of individuals, was very fully discussed. " No exception," said Mr. Justice Story, " has ever been made in regard to the United States ; nor has any authority been produced to show, that it consti- tutes a known prerogative of any other government or sovereignty. I have examined the treatises upon the prerogatives of the crown of England, and I do not find there, or in any of the great abridgments of the law, under the title, prerogative, any such exception recognized, or even alluded to. The argument rests the objection upon the ground of public inconvenience, if it should be held, that whenever a lien exists against a private person, it is to be held, that the like lien attaches against the United States. And it is said, that in cases of contract for labor and services, or repairs, or supplies, with the United States, no lien can be presumed to exist ; but that the only remedy is an appeal, not to law, but to the justice of the government. There may, for aught I know, be a just foundation for a distinction as to liens, between the case of the government and that of a mere private person, in many cases of contract. It may, perhaps, be justly inferred, in many cases, from the nature of certain contracts and employments and services for the government, that no lien attaches thereto. Thus, for example, it may be true that no Hen exists for repairs of a public ship, or for materials fur- nished therefor, or for wages due to the crew thereof, or for work and labor performed upon the arms, artillery, camp equipage, and other warlike equip- ments of the government. In such cases, the nature and use of the articles, as the means of military and naval operations, may repel any notion of any lien whatever, grounded upon the obvious intention of the parties. Many other cases of a like nature might be stated, in which the inference against a lien might be equally cogent But that in all cases of contract made by the" United Slates, a like exemption exists, from the ordinary lien allaciicd thereto by the maritime law, is more than I know or am prepared to admit. On the contrary, it seems to me, that the nature of the contract itself may sometimes furnish a suitable fouiulation on which to rest the presumption of a lien. Take tlie case of a sbipmcul of goods, like the present, by the United States, on board of a coasting vessel for transportation from one place to anothe'r, under the terms of the common bill of lading, by which the goods are deliverable to the consignee or his assigns, he or they paying freight ; I 284 MAEITIME LAW. [CH. VIH. »§, 347. In our law, salvage charges are deemed a general average when incurred for the benefit of all concerned. ^ In must say, that I am not prepared to declare, that the ordinary lien for freight does not attach, in such a case, upon the very footing of the terms of the contract in the same manner as it would upon a shipment by a private per- son. But on this I give no opinion, for it is not the case in judgment. The present case is not one arising under contract, but by operation of lav?, and, if I may so say, in invitum. It is a case of general average, where, as in a case of salvage, the right of the party arises from sacrifices made for the common benefit, or labor and services performed for the common safety. Under such circumstances, the general maritime law enforces a contribution independent of any notion of contract, upon the ground of justice and equity, according to the maxim, qui sentit commodum, sentire debet el onus. And it gives a lien in rem for the contribution, not as the only remedy, but as, in many cases, the best remedy, and in some cases the only remedy ; as, for example, where the owner of the goods is unknown. Indeed, it may be asserted with entire confidence, that in a great variety of cases, without such a lien, the ship-owner would be without any adequate redress, and would encounter most perilous responsibility. The case of Scaife v. Tobin, 3 Barn. & Adol. R. 523, already cited, has sufficiently established this ; for in that case, it was held, that against a consignee of goods, not being the owner, no remedy for contribution in personam would lie, notwithstanding his receipt of the goods, and that against him the only remedy was the detention of the goods for the contribution, unless upon a special contract. It is said, that, in cases where the United States are a party, no remedy by suit lies against them for the contribution, and hence, the conclusion is deduced, that there can be no remedy in rem. Now, I confess that I should reason alto- gether from the same premises to the opposite conclusion. The very cir- cumstance, that no suit would lie against the United States in its sovereign capacity, would seem to furnish the strongest ground why the remedy in rem should be held to exist. And I do not well see how otherwise it would be practicable at all, or if practicable, how, without extreme peril to the ship-owner, any private ascertainment or settlement of the general average could be made at all. The United States would not be bound by any such ascertainment or settlement of the average. They might deny the correct- ness of the valuation and apportionment. There would be no remedy to compel a submission to the authority of any tribunal of justice ; and whether the ship-owner should ever receive any compensation or not, and what com- pensation, would depend upon the good will of Congress after, what is a most lamentable defect in the existing state of things, a protracted appeal, and after many years duration of unsuccessful and urgent solicitations to that body. And yet the contribution of every other shipper may be, and, indeed, must be materially dependent upon what is properly due and payable by the United States. I Peters v. Warren Insurance Co. 1 Story, 471. CH. VIII.] OF GEXERAL AVERAGE. 285 the case of Peters v. Warren Insurance Company,^ it was said that salvage is properly a charge apporlionable upon all the interests and property at risk in the voyage, which derive any benefit therefrom. But, although it is often in the nature of a general average, it is far from being universally true, that in the sense of our law all salvage charges are to be deemed a general average. On the contrary, these charges are sometimes a simple average or partial loss. We must, therefore, look to the particular circumstances of the case to ascertain whether it be the one or the other. So expenses incurred in capture are sometimes a general average and sometimes not. Thus, if the expenses are incurred for the benefit of all concerned, they are general average. But if there should be a capture of a neutral ship, solely on account of the cargo, which is owned by different persons who are shippers, if no proceedings are had against the ship, but are against the cargo only, the expenses occasioned thereby will be apportioned upon the owners of the cargo, and are but a partial loss thereof and not a general average. <§, 348. Where the same person is owner of the ship and cargo, and therefore ultimately of the freight, and he effects an insurance upon one or all of these interests, and a jettison or any other sacrifice be made for the common benefit of all concerned in the voyage, the underwriters on ship, cargo, and freight, or on either, as the case may be, must contribute as for a general average. The underwriters are ^ro tanto benefited by the sacrifice, and they are in a just sense bound to contribute towards it.^ Where the interests in a marine adventure are different, that is, where the ship and cargo are owned by two or more persons, and one of those interests being insured is injured or sacrificed under circumstances giving a claim for contribution, the insured is entitled to 1 Telers v. Warren Ins. Co. 1 Plory, 471. 2 PoUcr V. Ocean Insurance Co. 3 Sumner, 27, per Story, J. 286 MARITIME LAW. [CH. VIII. recover from the underwriter the totality of his loss, and to devolve upon him the execution of the claim for contribu- tion against the other interests. The loss arising from a peril within the policy, the insured has a right to look for his indemnity from the person who has engaged to indemnify him from the peril. i This doctrine was recognized and adopted in the case of Potter v. Providence Washington Insurance Company.^ There it appeared that the ship Jeffer- son, on a voyage from Providence to New Orleans, with a cargo on board belonging to the plaintiff, who was also owner of the ship, encountered a severe hurricane, during which the masts and rigging were voluntarily cut away by the master to avoid foundering, and the ship was so much wrecked and injured that she was obliged to put into New York for repairs, where, on a survey, it was found that she was injured more than her whole value, and accordingly was abandoned to the underwriters. The insured now claimed for a total loss of the vessel. The only questions made at the trial were, first, whether the cutting away the masts and rigging was a general average or not, to be borne by ship and cargo, for no freight was earned. Secondlij, if so, whether the defendants had a right to deduct from the plaintiff's demand, the amount which was due from him as owner of the cargo, or whether he was entitled to recover the total loss and leave the defendants to their remedy against the underwriters on the cargo for the general ave- rage. With reference to the first point it was held, that the loss sustained from cutting away the masts and rigging was a contributory loss, to be borne by all the property at hazard. Upon the second point, it was said by the court, that if the ship and cargo were owned by different persons, (it will be observed that they were owned by the same 1 Maggrath v. Church, 1 Caines, 196 ; Potter v. Providence Washington Ins. Co! 4 Mason, 298; iJohns. Rep. 412; Watson v. Mar. Ins. Co. 7 Johns. Rep. 57. 2 4 Mason, 298. CH. VIII.] OF GENERAL AVERAGE. 287 person,) then the ship-owner would be entitled to recover the whole amount of the loss, without first seeking to recover against the owners of the cargo their contributory share, and the underwriters would be left to recover their recompense over. The ship-owner, in such a case, is enti- tled to receive his full loss, by a peril insured against, without troubling himself with any remedies over against third persons. In this respect, the doctrine in Maggrath v. Church, 1 and the other cases in New York which succeeded it,2 was followed in preference to that of Lapsley v. United States Insurance Company.'^ But in this case, the different interests were owned by the same person, and it was said by the court, that a different rule might well apply. Here, the same hand that loses pays. As between this person and the underwriters on the ship, his real loss is only the con- tributory share of the ship to the loss. The other losses are borne by him as owner of freight and cargo, for which he is directly liable. If he actually repairs the loss, the expenses paid must be deemed expenses paid as well in his character of owner of the cargo as of the ship. To declare that he would, in such a case, be entitled to recover the whole ex- penses against the underwriters, would be to decide, that he might recover a sum which he was bound to pay on his own account — to recover that which he was immediately to pay back to the underwriters. The law does not justify such a doctrine.^ 1 1 Caines, Rep. 196. 2 1 Johns. 412 ; 7 Id. 57. 3 4 Binn. 502. 4 Sec Jumel v. Mar. Ins. Co. 7 Johns. 412 ; Williams r. Tlic London Ass. Co. 1 M. & S. 321. 288 MARITIME LAW. [CU. IX. CHAPTER IX. OF THE LAW RELATIVE TO THE COLLISION OF SHIPS. <§. 319. The deplorable frequency of marine disasters, in- volving an appalling loss of life and property, is a subject, demanding very severe scrutiny. The causes of these catas- trophes should be explored, and effective means employed to prevent their occurrence. Unquestionably a primary cause of shipwreck is the collision of vessels at sea. The Eng- lish " Shipping Gazette," within a recent period, reported during the three first months of one year,^ one hundred and ninety-two vessels sunk or injured from this cause. Could an accurate statement be framed of the number of lives lost and the amount of property destroyed in any one year from collision of American ships and steamers on the ocean, and on our lakes and rivers, it would furnish an awful but truthful description of this formidable danger. The seamen of our mercantile marine possess great daring, an adventu- rous spirit, and are prone to incur risks to accomplish an object.^ This is the explication of their wonderful achieve- 1 1844. 2 The reader may recollect Mr. Burke's description of the adventurous and daring spirit of American seamen. " And pray, sir, what in the world is equal to it? Pass by the other parts, and look at the manner in which the people of New England have, of late, carried on the whale fishery. While we are following iliem among the tumbling mountains of ice, and behold them penetrating into the deepest frozen recesses of Hudson's Bay and Davis's Straits, while we are looking for them beneath the arctic circle, we hear that they have pierced into the opposite region of polar cold, that they are at the antipodes, and engaged under the frozen serpent of the south, Falkland island, which seemed too remote and too romantic an object for the CH. IX.] THE COLLISION OF SHIPS. 289 ments, and partially of their terrible calamities. But the chief causes of collision are to be found in negligence, or in ignorance of, or inattention to the rules of law, which are but a repetition of the rules of the sea. AVe propose to consider in the following chapter the principles recognized in our courts upon this subject, and which constitute the standard by which to determine the responsibility of the colliding vessels. <§. 350. It is the duty of the master of a ship to use vigi- lance and care to prevent collision, whether at sea, at anchor, or in port. If it occurs from his negligence, fault, or mis- conduct, he is answerable to his owners, and both to the suffering ship to the entire extent of her injury.^ The liability of the owner for the acts of the master within the grasp of national ambition, is but a stage and a resting-place in tiie progress of their victorious industry ; nor is the equinoctial heat more discouraging to them than the accumulated winter of both the poles. We know that whilst some of them draw the line and strike the harpoon on the coast of Africa, others run the longitude, and pursue their gigantic game along the coast of Brazil. No sea, but what is vexed by their fisheries. No climate, that is not a witness to their toils. Neither the perseverance of Holland, nor the activity of France, nor the dexterous and firm sagacity of English enter- prise, ever carried this most perilous mode of hardy industry to the extent to which it has been pushed by this recent people, a people who are still, as it were, but in the gristle, and not hardened into the bone of manhood." Speech on Conciliation with America. 1 Abbott on Shipping, p. 300. The ancient maritime law exacted a full compensation out of all the property of the owners of the guilty ship, upon the common principle applying to persons undertaking the conveyance of goods, that they were answerable for the conduct of the persons whom they employed, and of whom the other parties, who suffered damage, knew nothing, and over whom they had no control. To this rule, England for a long time conformed, but Holland, having, for the protection of its own navi- gation, limited the remedy to the value of the ship, frci^lit, apparel, and furniture, England has recently fuilowcd the example, and estaldishcii by statute a like limitation. Statute 53 Geo. 3, cli. Ifji* ; Tiic Dundee, 1 Hagg. Adm. 109; Story on Bailments, p. 382. In America, no positive enaclmcnl has been made, and, therefore, the responsil)iliiy of the vessel and its owners stands upon the general maritime law. Story on Bailments, 38,'. MAR. 25 m 290 MARITIME LAW. [CH. IX. scope of his employment, is a principle of universal obliga- tion. It is consistent with reason and natural justice that a man should be responsible for the skill, diligence, and honesty of the agent whom he employs in the transaction of his business, and whom he holds out to the world as worthy of confidence. The principal may, in effect, be said to contract with those with whom he deals for the existence of these qualities in his agent, and for this reason, that unless the principals were so responsible, the business of the world could not go on, for those who dealt with an agent would have no remedy if they were deceived, and all just confidence in the ordinary course of trade would be de- stroyed. ^ But a wanton trespass is not an act within the scope of the master's employment, and the owners are not answerable for it. Where there is neither previous authority nor subsequent adoption of an act of illegal violence of a servant, the master is not liable for his tortious conduct. For to make principals responsible for the wilful and malicious aggressions of their agents would be not only to make them responsible for acts done out of the scope of their employ- ment, but would expose the principals to such risks as would impede the despatch of business and impose upon them too serious a responsibility. Fraud may be incidental to the employment of an agent, but force never can be.^ 1 The Druid, 6 Jurist, 144. 2 Ibid. In the case of The Richmond Turnpilve Co. v. Vanderbilt, 1 Hill's R. 343, it was held that the owner of a steamboat is not responsible in an action in the case for the ivilful misconduct of the master in running her against and injuring another boat. The same doctrine was previously de- clared by the same court, in the case of Wright v. Wilcox, 19 Wend. 343. Cowen, J., in giving the opinion of the court, said, " All the cases agree that a master is not liable for the wilful mischief of his servant, though he be at the time in other respects engaged in the service of the former." And the ground upon which the decisions proceed is, that when the servant com- mits a wilful trespass, it is a departure from the master's business, and an independent act, not connected with it. In the case of M'Manus v. Crickett, 1 East, 106, where the servant, while driving a chariot on the road, as authorized by his master, wilfully drove against the -plaintiff's chaise, CH. IS.] THE COLLISION OF SHIPS. 291 <§> 351. When collision occurs, and no fault is imputable to either party, where the misfortune arose from circumstances neither could control, from vis major, from storm and waves, then each party must bear his own loss. This rule is derived from the Roman law, and the English and American courts conform to it.^ It is repugnant, however, to the law of most maritime states, which divides the loss between the colliding vessels. The Danish and Prussian codes determine, that when two ships, under sail, without the fault of either party, by day or at night, run foul, the damages arising are to be divided between the parties. The Swedish code subjoins, Lord Kenyon said, that the act being wilful, the chariot might be considered for that purpose in the possession of the servant, as his special property, and not the master's. " When a servant quits sight of the object for which he is employed," he observes, " and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him." See also Bowcher v. Noidstrom, I Taunt. 568. In the case of Lyons v. IMartin, 3 Nev. & Perry, 509, it was said by Patteson, J., that the legal distinction was this: " that for a lawful act negligently done, the master was liable, but not for an act altogether unlawful." In the case of Ralston v. State Rights, 2 Gilpin's R. there was evidence in some sort, tracing the wrongful act of the master of the steamboat to the owner; but the late Judge llopkinson, before whom the cause was tried, would seem to agree with Mr. Reeve, in his work on Dom. Rel. 357, 358, who argues that when the servant commits a wilful trespass, as one of two innocent persons must suffer, it should be the one who put it in the power of the servant to do the injury, and that the reason is as strong that the master should run the risk of his servant's unruly passions as his want of care. It was said by Dr. Lushington, in the case of the Druid, G Jurist, 443, that, it should seem that in a case of general malice the owners would bo responsible, in a case oi particular malice they would not. Take the case of a steamer, going through a very crowded roadstead in a dark night, occasion- ing a collision", and destroying a ship and crew. In this case the owners would be liable for the recklessness of their servant, though tiie master would be indictable. Vide Dusar i>. Murgatroyd, 1 Wash. C. C. it. 13 ; Stone V. Kctland, 1 Id. 1 12. I Dig. 9, 2, 29. The Woodrop Sims, 2 Dods. Adm. R. 83 ; Reeves r. The Ship Constitution, 1 Gilpin, 579 ; Story on bailments, p. 382 ; 3 Kent, 184. 292 MARITIME LAW. [CH. IX. that the damage of both ships, their cargoes and freight, shall be equally divided. The law of Holland apportions the damages between the two ships, if it was done reciprocally. The Russian law conforms to the civil, and lets the loss fall where it lights.^ <§. 352. If the collision was occasioned by the fault of both parties, the cost of damage is to be divided equally between them. 2 It was said, in the case of Ralston v. State Rights,^ that this rule is applicable only where both parties are in fault at the time and in the acts which produced the colli- sion, and where the faults are not egregiously unequal. This may be a just and proper qualification of the general rule, but it is certain that the maritime law makes no distinction in apportioning the loss from difference in the value of the vessels, or the value of their cargoes, or the degree of their fault.4 <§. 353. It might be extremely difficult, said Lord Giff"ord, 1 Jacobsen's Sea Laws, p. 328, The ordinances of Wisbury, and the Hanse Towns, speak a common language upon this point. By the 50th article of the former, it is declared, that " if two ships strike against one another, and receive damage, the loss shall be borne equally between them, unless the men aboard one of them did it on purpose, in which case that ship shall pay all the damage." The 70th article contemplates the case of a ship under sail doing damage to another ship undesignedly, without being able to help it. In that case the loss is borne by both ships in equal propor- tion. The 67th article refers to the case of two ships striking together, and one of them perishing by the blow. Here, for what reason does not appear, but doubtless on account of the extraordinary loss, a different rule of appor- tionment is adopted. The damage is not paid equally, but pro raid, accord- ing to the relative value of the ships and the merchandise lost. And such, it would seem by the 1st article of title 10th of the Hanseaticum Maritimum, was the rule of apportionment adopted by that code. 2 The Woodrop Sims, 2 Dods. Adm. R. 85 ; 2 Shaw's Scotch Appeal Cases ; Hay v. Le Neve, 1 Bell's Com. pp. 579-582; Story's Bailments, ^609. 3 2 Gilpin's R. 4 The cargo receives the benefit, and must share the burden of the contri- bution in these cases of collision. Hay v. Le Neve. n. IX.] THE COLLISION OF SHIPS. 293 in the case of Ilay v. Le Neve/ to regulate the quantity of neglect on the one side and the other, and to apportion the damages by any other rule. This principle of apportionment '•' grows out of an arbitrary provision in the law of nations, from views of general expediency, not as dictated by natural justice, nor possibly quite consistent with it."- However, in a case of this kind, where both vessels are to blame, a court of admiralty will order the vessel most to blame to pay all the costs. That was the decree in the case of Rogers V. Brig Rival." Upon the facts of this case, said Sprague, J., and the answers of the experts, it appears that both vessels were to blame. In such case, it is the settled doc- trine of the admiralty, that the whole damage should be equally divided between the two vessels. I think the Rival was most in fault, and that she ought, therefore, to bear all the costs. <§> 354. Those views of general expediency, upon which the rule we are now considering is founded, are thus satis- factorily stated by Valin : 'f No better means," he says, "of making the masters of small vessels, which are liable to be injured by the slightest shock, attentive to avoid collision, than to keep the fear of paying for half the damages con- stantly before their eyes. And if it be said, that it would have been a shorter and more simple mode of adjustment to let each party bear the loss he had sustained, as arising from casus fortuitus, the answer is, that, then, the masters of large ships would have made light of collision with those of smaller burden. Upon the whole, therefore, no rule is so just as that of equal apportionment."^ 1 See the addresses of Lords Giflbrd and Stowell, in this case of Hay v. Le Neve, (2 Scotch Appeal Cases,) wliich was decided by the House of Lords in 1824. 2 De Vaux v. Salvador, 4 Adol. & Ellis, p. 420. Lord Dcnman. 3 9 Law Rep, 28. 4 Abbott on Shippinf^, p. 330. The question, as to tho liability of underwriters, in these cases of equal apportionment of the loss arising from 25* 294 MARITIME LAW. [CH. IX. <§> 355. Where the degree of fault is ascertainable, and it appears absolutely that one party is more culpable than the collision, is an important one. It has been decided both in England and in this country. The decisions, however, are directly variant. The learned reader will require no apology, for our citing at length, the two cases. In De Vaux v. Salvador, 4 Adol. & Ellis, 420 ; S. C. 6 N. & M. 713, which was assumpsit on two policies of insurance on the ship " La Valeur," it appeared at the trial before Lord Denman, C. J., that during the continuance of the risk under the second policy, the " La Valeur," was lying at anchor near Calcutta, in the river Hoogly, and whilst there, was by the violence of the current, which broke her chain cable, thrown into collision with a steamer, called the " Forbes," which was lying at anchor near her. Both vessels sustained damage and were repaired. The repairs of the " La Valeur" cost 800 rupees. The repairs of the "Forbes " amounted to 2800 rupees ; and the owner of the " Forbes " seized the " La Valeur," and demanded payment of those expenses from the captain. By agreement between the parties, this claim was referred to arbitration, and there being reasonable grounds upon the evidence for supposing that there had been some degree of neslioence on each side, the arbitrators decided that the whole amount of the damage sustained by the two vessels should be borne in moieties by the respective owners, and, therefore, they ordered that the owners of the " La Valeur " should pay to the owners of the " Forbes " 1000 rupees. This sum was accordingly paid ; so that each sustained loss to the extent of 1800 rupees. The plainiifF therefore claimed for average loss generally under the second policy, the sum expended in repair of damage to the " La Valeur " from collision with the " Forbes," and for the sum paid (1000 rupees) to her owner. No question was made as to the liability of the underwriters for the direct injury to the " La Valeur " from the collision, that clearly arising from a peril of the sea. The real point was, whether they were liable for the amount of damage (1000 rupees) apportioned on the "La Valeur." Lord Denman held that they were not, and rejected this item of claim. Upon a motion for a new trial, his opinion was supported by the Court of King's Bench. His lordsiiip, in delivering the opinion of the court, after disposing of other questions in the case, proceeded to say : " The other point appears to be entirely new, which circumstance is not so strong an argument against it, as against the former claim, because the event is likely to have been of much less frequent occurrence. But if we look for the principle on which Fletcher v. Poole was decided, it must obviously be that well-known maxim of our law, in jure, non remota causa, sed proxima speclalur, " It were infinite (says Bacon) for the law to consider the causes of causes, and their impulsion one of another, therefore it contenteth itself with the immediate cause, and judgeth of acts by that, or without looking to any further degree." Such must be understood to be the mutual intention of the parties ^o' CH. IX.] THE COLLISION OF SKIPS. 295 Other, although both are to blame, an equitable apportion- ment of the damages according to the delinquency of the to such contracts. Tiien how stands the fact? The ship insured is driven against another by stress of weather. The injury she tlius sustains is ad- mitted to be direct, and the insurers are liable for it. But the collision causes the ship insured to do some damage to the other vessel, ana whenever this effect is produced, both vessels being in fault, a positive rule of the court of admiralty requires the damage sustained by both ships to be added together, and the combined amount to be equally divided between the owners of the two. It turns out that ihc ship insured has done more damage than she h.is received, and is obliged to pay the owners of the other ship to some amount, under the rule of the court of admiralty. But this is neither a necessary nor a proximate effect of the perils of the sea. It grows out of an arbitrary provision in the law of nations, from views of general expediency, not as dictated by natural justice, nor (possibly) quite consistent with it, and can no more be charged on the underwriters than a penally incurred for contra- vention of the revenue laws of any particular state, which may have been rendered inevitable by perils insured against." The point here decided has since arisen in this country, and received a directly opposite adjudication. In the case of Peters t'. Warren Insurance Co. 3 Sumner, 389 ; S. C. 14 Peters, 99, the question in judgment was precisely the same as in De Vaux V. Salvador, and arising from a similar slate of facts. The case went to the Supreme Court of the United States, on a certificate of division from the Circuit Court of United Stales for the district of Massachusetts. Story, J., delivered the opinion of the court. He said, " The rule caitsa jnojinia, non remota spectalur, is correct, when it is understood and applied in its true sense, and as such it has been repeatedly recognized in this court. But the question, in all cases of this sort is, what, in a just sense, is the proxi- mate cause of the loss? The argument, in the present case, on tiie part of the defendants is, that the law of Hamburgh is the immediate or proximate cause of the loss now claimed, and the collision is but the remote cause. But surely this is an over-refinement, and savors more of metapiiysical than of legal reasoning. If the argument were to be followed out, it might be said, with more exactness, that the decree of the court was the proximate cause and the law of Hamburg the remote cause of this loss In :i just view of the matter, the collision was the sole proximate cause of the loss, and the decree of the court did but ascertain and fix the amount chargeable upon the Paragon, and attached thereto at the very moment of the collision. Tlie con- tribution was a consequence of the collision, and not a t-ausc. It was an incident inseparably connected, in contemplation of law, witii tiie .sinking of the galiol, and a damage immediate, direct, and positive from the collisiun." After considering the application of the maxim, cnusa jirojcima, non remota speclaiur, the learned judge proceeded to notice the case of Dc Xauk v. Sal- 296 MARITIME LAW. [CH. IX. respective parties, would seem to be the more natural and obvious mode of adjustment. But the general rule, arbitrary as it is, and likely, in its application to many cases, to work positive injustice, is, nevertheless, founded on considerations that render its existence advantageous to the interests of navigation. And the power which a court of admiralty will exercise, of throwing upon the party most in fault the burden of the costs, will make the rule, in its application to particular cases, less onerous and unequal. >§> 356, By the common law, differing in this particular from the maritime law, where collision occurs from the fault of both parties, neither can recover.^ The mischief is the result of the combined neglect of both, and both are in statu quo. Such is the reasoning, ^ This difference of adjudica- tion between the courts of common law and admiralty leads, observes Judge Conkling, to this remarkable result — that what is regarded in one court as an injury entitling the suf- ferer to redress, is, by another court of the same country, possessing a concurrent jurisdiction, held to furnish no title to reparation,"^ <§) 357. Where the collision is evidently the result of error, vador, and declared that " it was not supported by the analogies of the law, or by the principles generally applied to policies of insurance." Lord Den- man, after reading the decision in the case of Peters v. Warren Insurance Co,, addressed the following letter to the Hon. Charles Sumner. "Your report of Judge Story's sentiments on our decision in De Vaux v. Salvador had not escaped my memory, and his now recorded judgment makes me regret that we did not grant a rule to show cause, that a full discussion of the point might have been had. If it should arise again, the case of Peters v. War- ren Insurance Co. will at least neutralize the effect of our decision, and induce any of our courts to consider the question as an open one." Story's Life of his Father, vol. ii. p. 360. 1 Vanderplank t). Miller, 1 M. & M. 169; Vennall v. Garner, 3 Tyr, 85; Broadwell v. Swigert, 7 B. Mon. 39 ; Rathburne v. Payne, 19 Wend, 499 ; Simpson v. Hand, 6 Whart. 311 ; 3 Kent, 231. 2 3 Tyr. 85. 3 U. S. Adm. chap, on Collision. CH. IX.] THE COLLISION OF SlUPS. 297 neglect, or want of precaution, which error, neglect, and want of precaution is not directly traceable to either party, but is inscrutable or left by the evidence in a state of un- certainty, then the rule of the maritime law is, that the loss must be apportioned between the parties in equal moieties.^ But here again the common law differs from the maritime, and leaves each party to bear his own loss. And it would seem, from the language of the Court, in the case of the Catherine of Dover,^ that the rule is established in England, that in a case of inscrutable fault or blame, the loss must be sustained by the party on whom it has fallen. " The result of the evidence," said Sir Christopher Robinson, in summing up the facts to the masters of Trinity House, whom he had called to his assistance, " will be one of three alternatives ; either a conviction on your mind, that the loss was occa- sioned by accident, in which case it must be sustained by the party on whom it has fallen, or a state of reasonable doubt as to the preponderance of evidence, which will have nearly the same effect ; or, third, a conviction that the party charged with being the cause of the accident, is justly chargeable with the loss of this vessel, according to the rules of navigation which ought to have governed them." Mr. Justice Story thinks it somewhat doubtful whether the second alternative, stated by the learned judge, was intended to apply to a case where there was a collision by some fault, but whose was uncertain, or to a case where the question was, whether by accident or not. If his language, he says, was meant to apply to a case of inscrutable fault or blame, and that would seem to be the natural construction, then the rule in England would seem to be, not to apportion in a case of loss by inscrutable fault or blame. If it was meant to apply merely to the question of accident, then the question 1 Dig. 9, 2, 29 ; 1 Bell's Com. 579 - 582 ; The Scioto, Davcis, 3.'i9. In this laUer case, the doctrine stated in the text, was aflirmed by Judge Ware. 2 2Hagg. R. 145. 298 MARITIME LAW. [CH. IX. is Still open to controversy in England. If the question is still open to controversey, there is great cogency in the rea- soning of Mr. Bell in favor of .adopting the rule of appor- tioning the loss between the parties.^ Many learned jurists support the justice and equity of such a rule, and especially it has the strong aid of Pothier and Emerigon.^ <§) 358. We think it evident that the case of the Catherine of Dover, does determine that, in a case of collision, occa- sioned by inevitable accident, or in a case where there is a reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen.-^ But the rule adopted in England does not necessarily determine the law for us, in the United States. And accordingly we find that the courts of admiralty in this country adhere to the rule of the ancient maritime law. Judge Ware, in the case of The Scioto,^ thus stated, what is, without question, the American maritime law, upon this subject. " When a colli- sion happens without fault in either party, or if there was fault, and it cannot he ascertained which vessel was in fault, or if both were in fault, then the damage and loss are divid- ed between them in equal shares." <§> 359. When the collision is the result of the fault, default, negligence, or any other misconduct of the suffering party, he must bear the loss of it.^ 1 1 Bell's Com. 581. 2 Story's Bailments, p. 384. 3 See Pritchard's Adm. Dig. 156. 4 Daveis,R. 359. 5 The Woodrop Sims, 2 Dods. 83. In law, inevitable accident is that which a party charged with an offence, could not possible prevent by the exercise of ordinary care, caution, and maritime skill. It is not enough to show that the accident could not be prevented by the party at the very mo- ment it occurred ; but the question is could previous measures have been adopted to render the occurrence of it less probable. The Virgil, 7 Jur. 1173; 2 W. Rob. 205. CH. IX.] THE COLLISION OF SHIPS. 299 <§> 360. "When the collision is in consequence of the mis- conduct of the ship which ran the other down, the innocent party is entitled to an entire compensation from the other.^ In a cause of damage for injury done to a vessel by collision, it must be made to appear that the misfortune arose from the fault of the respondent, and that there was no want of ordi- nary care on the part of the libellant to prevent it.- These two things must be proved, and the ojius proha7i(Iivesls UTpon the party who seeks to recover.'^ It is an established principle, in cases of collision, that the fault of one vessel will not ex- cuse any want of care, diligence, or skill in another, so as to exempt her from sharing the loss and damage.-^ If it should appear that the respondent neglected an ordinary and proper measure of prevention, the burden of proof is then shifted, and it rests on him to show that the collision was not owing to his neglect, but would equally have happened if he had performed his duty.^ Thus, the neglect of the master or owner of a steamboat, between sunset and sunrise, to carry one or more signal-lights, in the manner required by the Act of Congress, of July 7, 183S, throws on the owner the burden of proof, to show that collisions which may occur, under such circumstances, are not owing to such neglect.*^ <^ 361. If a ship be at anchor with no sails set, and in a proper place for anchoring, and another ship under sail occa- sions damage to her, the latter is liable. But if the place of anchorage be an improper place, as the thoroughfare pass of a river, the owners of the vessel which is injured, must abide the consequences of the misconduct or negligence of the master." A vessel ought not to be moored and lie in the 1 The Woodrop Sims, 2 Dods. 85. 2 Bulloch V. Steamboat. Lamar, 8 Law Rep. 275. 3 Ibid. AbboU on Sliip. p. .311. 4 The Scioto, Davcis U. 35!). 5 8 Law Rep. 275; Waring v. Clark, 5 How. R. HI. 6 Ibid. 7 Slrout V. Foster, 1 How. DO. 300 ' MARITIME LAW. [CH. IX. channel, or entrance to a port, except in a case of necessity, or, if anchored there from necessity, she ought not to remain longer than the necessity continues. If she does, and a collision takes place with a vessel entering the harbor, she will be considered in fault. ^ <§, 362. Where a ship is being towed at the stern of a steam- boat which is engaged in the trade of towing, the whole conduct and management is entirely under the control of the master and crew of the towing vessel. But the ship towed astern must use care and skill in steering, keeping watch, observing and obeying orders and signs, and if by neglect in these particulars, collision ensues, the master and crew and their owners must sustain the damage. But where the duties appertaining to the towed ship are performed, and collision ensues nevertheless, it is as directly attributable to the steam- boat, her officers, and crew, as if the steamboat herself had come into collision with the other vessel. ^ When a vessel is lashed to the side of a steam tow-boat, being wholly governed by its movements, if collision ensues, the steam- boat is wholly responsible. The towed ship is but the pas- sive instrument and means by which the damage is done.^ <§, 363. It was held, in the case of The Ship Constitution,'' that where a steamboat is hired for the purpose of towing a vessel, to which she is fastened, and both are under the direc- tion of a licensed pilot, the owner of the steamboat is not entitled to damages on account of injury arising from colli- sion, which was not caused by undue negligence of the pilot. The decision was put upon the ground that the case was one of bailment, and governed by the law of such a case. The owner of a thing let out to hire, it was said, ^ The Scioto, Daveis, R. 359. 2 Sproul V. Hemmingway, 14 Pick. R. 1. 3 Ibid. 4 1 Gilpin's R. 579. CH. IX.] THE COLLISION OF SHIPS. 301 must not suppose that he is to be indemnified for every in- jury it may sustain in the service it is put upon. The reward paid for it is presumed to inchide, not merely a compeusation for the use of it to the hirer, but also for the ordiuary wear of it, and the risk attending the employment, unless it be produced by an abuse of it, or by such negligence as brings responsibil- ity upon the hirer. The owner of a ship who lets her to hire, knows that she is to encounter the perils of the sea, injuries from tempests, and various accidents and losses, that belong to the service in which he has hired her, and that must be borne by himself. In fixing his compensation he is pre- sumed to take the risks into consideration, and probably does so.i 1 It is a question of no little importance, whether tow-hoats, whose regu- lar and constant employment it is to tow boats for hire, are to be regarded as common-carriers, when the owner or master of the boat towed remains on board of her. In the case of Alexander v. Green, 3 Hill, 9, it was held that they were not. Bronson, J., in delivering the judgment of the court, said : " I do not think they are common-carriers. They do not receive the property into their custody, nor do they exercise any control over it other than such as results from the towing of the boats in which it is laden. They neither employ the master and hands of the boats towed, nor do they exercise any authority over them beyond that of occasionally requiring their aid in govern- ing the flotilla. The goods or other property remain in the care and charge of the master and hands of the boats towed. In case of loss by fire or robbery, without any actual default on the part of the defendants, it can hardly be pretended that they would be answerable ; and yet carriers must answer for such loss. If the case of Caton v. Rumney, 13 Wend. 387, docs not go the whole length of deciding this question, we entertain no doubt that the circuit judge was right in ruling that the defendants are not common- carriers." Judge Story, in his work on Bailments, sect. 496, on the author- ity of this case, excludes tow-boats from the class of common-carriers. This view of the subject is concurred in I)y Lowric, J., in Lcccli v. Steamboat Miner, a recent nisi /3riu5 casein Pennsylvania. " Tlic owners of a tow-boat," he observed, " are not liable as common-carriers for the safety of tiic Iwats and their contents, which they undertake to tow. In the pcrfunnancc of tiio duty they are bound to exercise ordinary care and skill in direciing ihi-ir move- ments, and are liat)le if tlie accident arose from want of such care and skill." In the case of Reeves v. The Constitution, 1 Gilp. 570, it appeared tiiat tho steamboat William May, owned by the libellants, was engaged in trading between the port of IMiiladcIpiiia and the port of Camden, in New Jersey, MAIL '-i^j 302 MARITIME LAW. [CH. IX. <^ 364. It is the doctrine of some of the European states, Holland, for instance, that in the reparation of damages sus- and in towing vessels from foreign ports to the port of Philadelphia, and that whilst she was employed in towing the ship Constitution, to which she was fastened, up the river Delaware, (there was a licensed pilot on board of the ship, under whose directions both vessels virere steered,) they came in contact with a schooner, sailing on the river, by reason of which the steamboat sustained considerable injury. The libellants claimed compensation and indemnity. It was contended, for the libellants, that the case was one of bailment. And so the court decided. " The counsel for the libellants have argued," said Hopkinson, J., " and I think rightly, that it is a case of bailment, or hiring for a reward, and, of course, will be governed by the law of such a case." The grounds of the decision in this case, it will be seen, utterly negative the idea that the tow-boat was a common-carrier. In a recent admiralty cause, in the District Court of the United States, for the Eastern District of Penn- sylvania, Kane, J., expressed a very decided opinion in favor of holding a steam tug to the rigid accountability of a common-carrier. " I confess," he observed, "that after reading that case over carefully, (the case of Alaxan- der V. Green, 3 Hill, 9,) the reasoning of the court does not appear to me conclusive, and that I am much more impressed by the argument of the counsel for the unsuccessful party. It has been suggested, that such steam tugs should perhaps hold a place between common-carriers and ordinary bailees for the carriage of goods ; not liable in general for loss by fire or robbery, since the owner or his immediate agent has, to a certain extent, the continued supervision of his property, but to be otherwise held to the high- est degree of accountability, since the vessel towed is for the time under their control — quite as much so as the baggage of a passenger in a stage- coach. But if they are not to form a distinct new category, I should be strongly inclined to the opinion that they must be treated as common-carri- ers. Their occupation is essentially a public one ; they hold themselves out to the world as ready to serve all who will employ them, and they have whatever of advantage any common-carrier can derive from such a public announcement. They have the custody and direction of the vessel to be transported ; it is generally fastened to the steamer in such a manner as not to be safely detached while the two are in motion, unless by the act of those on board the steamer ; and if detached while on the way, the boat is without any power of providing for her safety. The hands on board the boat, more- over, receive their orders from the steamer's captain ; and, in fact, the two move on together under the sole impulse and guidance of the steamer. The vast interests which are daily confided to such steam tugs, the hazards to which our internal commerce may be subjected by a want of the highest degree of skill and care on the part of those who command them, and the difHcultv of drawing the line in a court of justice between the consequences of CH. IX.] THE COLLISION OF SHIPS. 303 tallied from collision, regard must be had only to the immedi- ate, effective injury, and not to the consequent damage.^ The English Court of Admiralty, on the contrary, holds, that in cases of collision, where it is clearly proved that one vessel is the wrongdoer, her owners, to the extent of the value of the vessel, are responsible for all the damage which occurred through the neglect or default of her master and crew, not only the immediate damages, but what is called consequen- tial damage, that is, all damage which may subsequently take place, that can be fairly attributed exclusively to the act of the original wrongdoer.- <§> 365. In the case of The Betsey Caines,^ it was admit- ted to proof, that in consequence of the collision, the vessel run down was prevented from completing a salvage service she was at the time engaged in, which occasioned to her a loss of £50 by a diminution to that amount in the salvage remuneration. In another collision cause, it appeared that the vessel run foul of was a fishing smack on a voyage to receive a cargo of lobsters, and was so damaged that it be- came necessary to hire another smack for the purpose. The court, (having condemned the vessel doing the damage in repairs and costs,) after argument directed a reference to re- gistrar and merchants, to report the amount of freight paid mismanagement and those of mere stress of weather, or, where these come together, as they often do, of assigning to each its appropriate share of influ- ence ; — these considerations urge us very strongly to hold the steam tug to the rigid accountability of a common-carrier. But I do not think it necessary to decide the question." Vanderslice v. The Steam Tow-Boat Superior, 2 American Law Jour, (new series) 347. This case underwent the revision of the Circuit Court, and Grier, J., said he could not assent to the position that tow-boats were common-carricra. The same case is now pending in the Supreme Court of tlio Unittrd Slates, and the decision of that tribunal upon the point is very dcsiriiblf, but wo understand that the question is not necessarily in judgment. 1 Jacobsen's Sea Laws, p. 328. 2 The Countess of Durham, 9 Monthly Law Mag. 27'J. 3 2 Hagg. Adm. R. 30. 304 MARITIME LAW. [CH. IX. to the vessel substituted for the smack, in order that the same might be allowed as consequential damage. ^ <^ 366. The doctrine of the English maritime law is but a repetition of the common and familiar principle with refer- ence to consequential damages, and which obtains as well in this country as in England. It should be observed, how- ever, that in this country, the party by whose fault the da- mage was occasioned, must make full compensation out of all his property. The remedy here is not limited, as in England, to the value of the guilty ship.^ It was held, in the case of Smith V. Condry,^ that the actual damages sustained by the party at the time and place of injury, and not probable profits at the port of destination, ought to be the measure of value in damages in cases of collision as well as in cases of insur- ance. Of the Rules to he observed in the Navigation of Ships. <§. 367. To prevent collisions, or, if they occur, to have a standard, by which the want of care, skill, or duty, may be ascertained, certain rules of the sea obtain in the courts of admiralty, and regulate their decision. It must be under- stood, however, that these rules are not absolutely inflexible. The combination of circumstances in which two meeting vessels find themselves, may be extensively varied by the state and direction of the wind, and the relative position of 1 The Yorkshireman. Ibid. 2 Vide supra, p. 289, note 1. 3 1 How. 28. Lord Stovvell, in the case of The Betsey Caines, after observing that no authority had been mentioned by which the court might be induced to consider itself excluded from entertaining a question of conse- quential damages, and that he could not persuade himself that the jurisdic- tion was so limited, in that respect, as had been suggested, remarked, that the case before him was not a mere claim for consequential and probable ad- vantage only, but the smack was actually in the pursuit of earning that which it had been stipulated she should receive. CH. IX.] THE COLLISION OF SHIPS. 305 the ships towards the wind, and towards each other ; and it hence arises, that a rule of clearly advantageous operation in one case becomes useless, or even positively mischievous in another.^ There is no law, cither of tlic sea or the road, by which a person is justified in adhering to a particular course, when it will be productive of mischief." In the words of the judge, in the case of The Friends, that there must be exceptions, is apparent to common sense, as in the case of a vessel going so near to a rock or a shoal of sand that if she followed the rule she would inevitably become a wreck. No person would say, that the rule was to prevail over the still higher consideration of the preservation of property or of human life.^ <§) 368. The same judge, in another case, observed that no vessel, especially a steamer, should unnecessarily incur the probability of a collision by a pertinacious adherence to the strict rule of navigation, which, however, is not to be lightly infringed upon. Hence, if a steam vessel should be nearing another sailing vessel and such vessel should be steered erroneously, if the master of the steam vessel should wilfully say, this vessel is steering wrong, but we will keep our course, and a collision ensues in consequence, the steam vessel is in fault, and must bear the damage.' Where there has been any departure from the rules, the 07ms of proving its neces- sity, will rest with the party making such departure. AVith these preliminary observations, we shall now proceed to state such of the more prominent rules of the sea, as appear in the judicial decisions of the courts of admiralty, together with such prudential measures as are necessary to be ob- served by vessels in particular circumstances, and the omis- i Westminster Review for Sept. 1811. 7;j hctc verba. 2 Handayside v. Wilson, 3 C. & W 538. 3 The Friends, 1 Rob. Jiir. 485. 4 The Hope, 1 W. Rob. 157 ; Lowry v. Steamboat rorlland, 1 I-aw Rep. 313. 20* ( 306 MARITIME LAW. [CH. IX. sioii of which is evidence of fault, and subjects the delinquent party to the consequences that may ensue. ■§> 369. A vessel going before the wind or sailing free must give way to one closehauled, in such a manner as to avoid her course altogether.^ This is an exception to the general rule, which prescribes that when two vessels approach each other, both having a free or fair wind, the one with the wind on her starboard side keeps on her course, or if any change is made, she luffs so as to keep to the windward of the other, or, in other words, each vessel passes to the right.^ When both vessels are beating to windward, closehauled, on opposite tacks, the vessel on the larboard tack ports her helm and bears away.^ If the vessels are sailing in oppo- site courses, both having the wind free, the vessel on the larboard tack pcyts her helm and bears away. The one on the starboard tack holds her course, or slightly puts her helm to port.^ When two vessels approach each other on opposite tacks, each being closehauled, and it is doubtful which is to windward, the vessel on the starboard tack should keep on her course, and the vessel on the larboard tack should keep ofF.s A vessel closehauled on the starboard tack, and one with a wind free on the larboard tack, are crossing in an angular direction, and the latter is on the windward side of the track of the former, the helm of the vessel sailing free is 1 The Woodrop Sims, 2 Dod. 85 ; 3 Kent's Com. 230 ; The Chester, 3 Hao-g. 318. The vessel sailing free may go to leeward or windward, as she best can, but she ought, as a general rule, to suppose that the vessel going to the windward will keep her position. Handayside v. Wilson, 3 C. & p! 528. 2 Lowry u. Steamboat Portland, 1 Law Eep. 315. 3 Story on Bailments, 383 ; 42 West. Rev. 65. 4 Ibid. 3 Kent's Com. 230. 5 The Brig Cynosure, 7 Law Rep. 222. The only exception to this rule is that if the vessel on the larboard tack is so much to windvi'ard, that in case both persist, the vessel on the starboard tack will strike her to leeward and abaft the beam, then the vessels on the starboard tack must give way, as she can do it more easily than the other. Dana's Seaman's Manual, 71. CH. IX.] THE COLLISION OF SHIPS. 307 starboarded, and she passes to windward, going astern of the other.^ A vessel with a free course must give way to a vessel beating up to windward and tacking. If a collision occur between such vessels, the onus of proof lies on the vessel having a free course, to show that all possible skill was used on her part, and that the collision arose from the fault of the other vessel, or w^as unavoidable. Hence, in the case of The Baron Holberg, which, while in charge of a duly licensed pilot, having her course free, ran down a barge beating up the river with the tide against the wind, it was decreed that she should pay the damage and costs, she fail- ing to make out a case of exoneration.- <§, 370. It was declared in " The Harriet," and " The Hope," 2 that it was not merely the right, but also, in a cer- tain sense, the duty of a vessel closehauled meeting another free, or of a closehauled on the starboard tack, meeting another also on the wind, to hold her course without devia- tion. It has been said, that it would be a deviation either to bear up or to throw herself in stays ; but if the vessel, though sailing on a bowline, happened, just at the mo- ment, to be a little off the wind, it does not appear to be considered any deviation to make such slight change of hehn as will enable her to stand on closehauled.^ «§. 371. A vessel is justified in deviating from the strict 1 rule of navigation in cases of reasonable alarm, especially 1 42 West. 65. In the case of Marsh v. BIythe, 1 McCord, 3fiO, it was laid down that the vessel to the windward is to keep away, when both vessels are going the same course in a narrow channel, and there is danger of running foul. Vide Slearnhoat Company r. Whilldin, 1 Ilarring. 228. 2 3 IIa"§> 372. When two vessels are approaching each other in the night time, in opposite directions, it is the duty of the vessel on the larboard tack immediately to give way, not- withstanding she may be closehauled, and that the other vessel on the starboard tack, though also closehauled, has the wind quite free.^ The reason of the rule is, that at niaht, a closehauled vessel on the larboard tack can never be quite sure whether a sail seen approaching her lee bow is close up to the wind or a little from it."* <§, 373. Steam vessels, possessing a propelling power equal to a favorable wind, having it always at command and capa- ble of modification in any direction, are governed by a few simple rules.^ A steam vessel must give way to sailing vessels on a wind on either tack.^ A sailing vessel having the wind free, and meeting a steam vessel in an opposite direction, kept on her course, but the steamer ported her 1 The Friends, 1 Rob. Jur. 478 ; The Rose, 7 Jurist, 381 ; 42 West. Rev. 64. 2 The Celt, 3 Hagg. 321. 3 The Traveller, 7 Jurist, 1094. 4 42 West. Rev. 64. 5 Ibid. 61. 6 The Shannon, 2 Hagg. 174. CH. IX.] THE COLLISION OF SHIPS. 309 helm. A claim for damages, preferred by the sailing vessel, against the steamer in respect of such collision, on the ground, that had the steamer kept on her course the collision would have been avoided, was dismissed M'ith costs. The court held that the established principle of navigation, that vessels having the wind free, and meeting each other in opposite directions, rendering a collision probable, should port their re- spective helms, was applicable in this case, and that the sailing vessel was therefore to blame in not having ported her helm.^ If two steamers are meeting on opposite courses, each ports her helm.2 A steam vessel passing another in a narrow channel, must always leave the vessel she is passing on the larboard hand.^ Steam vessels, it has been said, should always give way to sailing vessels, and, therefore, should not cross their bows.^ <§, 374. We now propose to mention a few of the pru- dential measures necessary for ships to observe, and the neglect of which subjects them to the consequent damage. It was said, in the case of The Itinerant," that if circum- stances arise, evidently and clearly requiring prudential measures, and those measures are not taken, and the natural result of such omission is accident, the court would be inclined to hold the party liable, even if such result were only possible. But if a party make every preparation against approaching danger, it will not be sufficient to subject liim, in damages for injury to another vessel by collision, that in the moment of danger he did not make use of every means that might appear proper to a cool spectator ; — there must be gross negligence.*^ 1 The City of London, 4 Notes of Cases, -10; rrilcliunrs A.lm. Di-. p. 168. 2 1 W. Rob. 274 ; The Duke of Sussex, 42 West. Ucv. CC. ; Lowry v Steamboat Portland, 1 Law Rep. :J13. 3 The Gazelle, 1 W. Rob. 471. 4 Vide 42 West. Rev. 04. 5 2 W. Rob. 240 ; 8 Jurist, VM \ U Notes of Cases. 6 Burns v. Stirling, 2 Mur. 'M>. 310 MARITIME LAW. [CH. IX. § 275. A vessel at anchor is bound at night to hang out a light. In the case of Simpson v. Handj^ it was proved to be a custom of the River Delaware to set a light in nights of unusual darkness. It was said by Gibson, C. J., in giv- ing the opinion of the court, that a want of conformity to the custom was an allurement to disaster. Indeed, he observed, the hoisting of a light is a precaution so imperiously demanded by prudence, that I know not how the omission of it could be qualified by circumstances any more than could the leav- ing of a crate of china in the track of a railroad car, or how it could be considered otherwise than as negligence per se. A vessel lying in the channel of a port, from necessity, which alone justifies her in lying there, is bound in the night time to show a light. ^ It is a rule, in some States, founded on usage, in others on positive law, that vessels sailing at night in narrow waters, must hoist a light. ^ Such seems to be the recognized rule in this country. But there is no law, nor usage having the authority of law, that requires vessels sailing on the high sea, to exhibit a light. It would seem, from the language of the learned judge in the case of the Rose,* that in England, no rule has been adopted, which requires the presence of a light, either when the vessel is sailing on the high sea, or in narrow waters. Dr. Lushing- ton, in addressing the Trinity Masters in that case said, " You have invariably decided, that merchant vessels, under sail, are under no necessity whatever to carry lights." The ground upon which the Trinity Masters place their decision is, that ships' lights may be mistaken for light-houses on 1 6 Wheat. 324. 2 The Scioto, Davies's Adm. R. 359. 3 Jacobsen's Sea Laws, p. 340 ; Bynk. Quest. J. lib. 4, c. 22. 4 2 W. Rob. 4. I find, upon referring to this case, that the exact lan- guage used by Dr. Lushington, was as follows: "I believe there is no occasion in which it has been laid down as a general principle, that merchant vessels ought to carry lights. Under certain circumstances, undoubtedly, it may be right and expedient to do so." CH, IX.] THE COLLISION OF SHIPS. oil shore, and thus occasion greater calamities even, than those their presence was intended to prevent. «§> 376. In the case of The Iron Dnkc,^ it appeared that a large steamer, on her voyage from Kingston to Liverpool, came into collision at night with an outward bound brig, which, in consequence of the collision, sunk immedi- ately with some of her crew. The night was dark. The place of collision was a part of the channel constantly navi- gated by vessels. The steamer was going at full speed. She carried lights, and had one man on her look-out station. The brig carried no lights, properly so termed. It was held, that the brig was not bound to carry lights, and that the steamer, in going at full speed on such a night, in such a locality, and with one man only on the lookout, was improperly navi- gated. A vessel entering a harbor is bound to keep the most vigilant watch, to avoid collision with other vessels in motion or lying at anchor, and, if in the night time, she ought to have her whole crew on deck on the lookout. - 1 9 Jurist, 476 ; S. C. 2 W. Rob. 385. 2 The Scioto, Davies, 359. The act of Congress, ofJuly 7, 1838, requires " the master and owner of every steamboat running beiwcen sunset and sun- rise to carry one or more signal lights tliat may be seen by other boats navi- gating the same waters, under the penalty of two hundred didlars." In the case of The Osprey, recently decided in the District Court for the Eastern District of Tennsylvania, and reported in the Legal Intelligencer of May 21, 1852, Judge Kane said, " There is no law which requires vessels navigating the high °sea after dark to carry signal lights, and very much it is to be regretted. I can imagine no locality so remote or unfrequented as to dispense with the policy of such a practice. There is hardly a month thai we do not read speculations about missing ships, especially thips navigating along our coasts ; and almost every old seaman can tell of encounters in the nighl with vessels that were run down and disappearcl, leaving no memorial beliind them. I should be very glad to follow in the wake of the fual admi- ralty judge, who would hold the absence of a properly-placid and wtll- triinmcd Fantern to be prima fade evidence of a culpable want of cautmn. In our i.arrow waters, however, a sense of danger has cnfoiced upon our navi- gation the adoption of something like a general usage, and the legi»lalurc« of some of the States have, in reference to atcamcis, at U-;ist. m:idc it iho subject of enactments. Thus, it seems to be univer8;illy undirMood, that a 312 MARITIME LAW. [CH. IX. <5. 377. Proper means must be employed to check a vessel entering a river or harbor where others lie at anchor. If they are neglected, and collision is the consequence, a case of respon- sibility for damages is created.^ Indeed, in all cases, where it appears that there is an absence of precaution, whether in want of lookout, or in neglect to shorten sail and slacken speed at night or in a fog, when in a neighborhood where danger may reasonably be apprehended, the courts of admi- ralty inflict severe penalities upon the offending party.^ <§> 378. When collision occurs, the suffering ship should receive from the other colliding vessel every assistance in its power to render. The owners of the Celt,^ though not otherwise in fault, were condemned in all costs and expenses of the suit, because the master made no attempt to save the ship run down. <§. 379. The owner of a ship is not relieved from responsi- bility in a case of collision, from the circumstance of having a pilot on board. It is true, that if the master is by statute compelled to take a pilot, liability for his acts is removed from the owner during the time that the vessel is under his control.^ " If the master cannot navigate without a pilot, vessel approaching another in a dark night, should show a light, or. in more accurate words, should show such a light, and in such a place as to indicate, at least, her position, if not her course." He also observed, that the act of Congress of July 7th, 1838, sect. 10, is practically almost inoperative for want of specifying their number and position. 1 3 Kent, 231 ; The Neptune, 1 Dod. Adm. R. 467. 2 42 West. Rev. 68 ; The Rose, 7 Jurist, 381 ; Tiie Virgil, 7 Jur. 1, 117. Running a steamboat under full headway close past smaller and deeply -laden boats, or into a crowded harbor, is unlawful. The law requires that strong and powerful vessels shall be managed with a proper regard to the safety of those that ate weak and unmanageable, and that vessels having the most ready and perfect command of their motive power shall give way to others which are less favored. Brown «. Stone, Nisi Prius Decision, by Lowrie, J. 3 3 Hagg. 321. 4 The Christiana, 2 Hagg. 183 ; The Protector, 1 W. Rob. 45 ; The Ma- ria, 1 W. Rob. 95 ; The Diana, 1 W. Rob. 131. CH. IX.] THE COLLISION OF SHIPS. 313 except under a penalty, is he not under the compulsion of law to take a pilot ? And if so, is it just that he should be answerable for the misconduct of a person whose appoint- ment the provisions of the law have taken out of his hands, placing the ship in the hands and under the conduct of the pilot ? The consequence is, that there is no privity between them.*'^ -§> 3S0. It rests, however, with the owner to prove, that the damage was occasioned by the pilot's fault alone. In the case of the Massachusetts,- it appeared that the damage arose from dragging an anchor too light for the vessel. Tiie owners pleaded a pilot's presence in vain. In the case of the Diana," it was proved that the collision was occasioned by a bad lookout, for which the crew were jointly to blame with the pilot. It was held, that, in order to exempt the owners from liability in these cases, the accident must arise entirely from the fault of the pilot. " It was rightly observed," said Dr. Lushington, " by the Trinity Masters, that the mere fact of taking a pilot on board, under the provisions of the statute, did not exonerate ihe master and crew from the proper observance of their own duty." And in the case of The Massachusetts, it was said by the same learned judge, in his address to the Trinity Masters, '' If you are of opinion that the accident arose partly from the fault of the pilot in not coming to an anchor in sufficient time, and partly from the defective weight of the anchor, the legal consequence is, that the damage having arisen from the joint default of the pilot and the owners, the responsibility of the loss must fall upon the owners of the ship." In a very recent case, before Judge Kane, he thus stated the law upon this subject : "Where a pilot has been received on board in obedience to a statutory injunction, and the blame of a collision, occurring 1 Carruthers w. Syacbotliam, 1 M. At S. 77. Lord Ellcnborough. 2 1 W. Kob. 371. 3 1 W. Rob. 131. MAR. 27 314 MARITIME LAW. [CH. IX. while he is in charge, is not shared by the officers and crew, and is not referable to the defective character of the vessel itself, the vessel and her owners are not responsi- ble." ^ <§, 381. Causes of collision are communis juris. Hence, a court of admiralty has jurisdiction to entertain a suit between two foreign vessels, where the collision occurred within the territorial waters of the sovereign under whose commis- sion it sits. In the case of The Johann, a protest against the jurisdiction of the court, on the ground that both the vessels were the property of foreign owners, and that the collision occurred whilst they were in the prosecution of their respective voyages on the high seas, was overruled, it appearing that the place of collision was on the English coastj within the jurisdiction of the court of admiralty ; — causes of collision being commiuiis jiiris.^ In these causes of collision between foreign vessels, the judgment of the foru7n rei sitce, where the proceeding is in rem, is of uni- versal obligation and absolutely conclusive.=^ The same principle applies in such cases equally to movable property, as to immovable. Immohilia ejus jurisdictionis esse repu- tantur, ubi sita sunt. Whatever the court having jurisdic- tion of the subject-matter determines, will be held valid in every other country, where the same question comes directly or indirectly in judgment before any other foreign tribunal. • Where a collision occurs in a foreign port and is referred 1 The Creole, Legal Intelligencer of May 7, 1852. See also Smith v. Condry, 1 How. 34 ; Curtis's Merchant Seamen, p. 196. In the case of The Creole, 'judge Kane said, that there was, properly speaking, no lien in a case of collision, °and cannot be, for the subject is tort. Yet, the remedy, accord- in c^ to the ancient and practically approved opinion in this district, is not affected by a change of property in the thing. No one has contended in this court, that his vessel was free of liability for a collision, because he had purchased her after it took place. 2 1 W. Rob. 35. 3 Story's Conflict of Laws, p. 495. en. IX.] THE COLLISION OF SHIPS. 315 home for decision, the rights and responsibilities of the parties must be determined by the foreign law, and if doubts exist as to its true construction, that will be adopted which is sanctioned by the foreign courts.^ 1 Smith V. Condry, 1 How. U. S. R. '28. We append from the Sea- man's Manual, by Davis, a definition of the nautical terms and phrases that are used in the foregoing chapter. Bear tip, ox hear away. — To put the helm up, (or to the windward or weather side,) and keep a vessel away toleeward. Closehauled — on a howline — on a wind. — Applied to a vessel which is sailing with her yards braced up, so as to get as much as possible to windward. Fi-ee — Large. — Applied to a vessel sailing with a fair wind. Larboard. — The left side of a vessel, looking forward. Lee. — The side opposite to that from which the wind blows. A-Lee. — The situation of the helm, when the tiller is put to tiie Ice side. Leeway. — What a vessel loses by drifting to leeway. Lvff. — To put the helm down, (or to the lee side,) so as to bring the ship nearer the wind. Port. — Used instead of larboard. To port the helm, is to put the tiller to the larboard side. Starboard. — The right side of a vessel looking forward. To starboard the helm, is to put the tiller to the starboard side. Stays — in stays. — The situation of a vessel when she is staying or going about from one tack to the other. Tack. — To put a ship about, so that from having the wind on one side, you bring it round on the other, by the way of her head — the opposite of wearing. A vessel is on the starboard tack when she has the wind on her starboard side, and on the larboard tack when she has the wind on tho lar- board side. Wear. — To turn a vessel round, so that from having tho wind on ono side, you bring it upon the other, carrying her stern round by the wind. Jn tacking, the same result is produced by carrying a vessel's //ttfJ round by the wind. 316 MAKITIME LAW. [CH. X. CHAPTER X. OF SALVAGE. <§. 382. Salvage is founded on the equity of remunerating private and individual services performed in saving in whole or in part a ship or its cargo from impending peril, or in re- covering them after actual loss. It is a compensation for actual services rendered to the property charged with it, and is allowed as a reward for the meritorious conduct of the salvor, and in consideration of a benefit conferred on the person whose property he has saved. A claim for salvage rests on the principle, that unless the property be in fact saved by those who claim the compensation, it cannot be allowed, however benevolent their intention, and however heroic their conduct. ^ <§) 383. The admiralty has jurisdiction of cases of salvage, which it may exercise both in rem and m personam. But in order that the jurisdiction may rightfully attach, the salvage service must fall within the meaning of a maritime service ; that is, a service rendered in saving property on the sea, or wrecked on the coast of the sea, and I presume, since the decision in the case of Waring v. Clarke,^ on rivers 1 The Calypso, 2 Hagg. Adm. R. 209; Abbott on Ship. p. 659; The Amelia, 1 Cranch, 1; The Alerta, 9 Cranch, 367; The Brig Healy, 4 Wash. C. C. R. 657; The Ship Henry Ewbank, 1 Sumn. R, 417. 2 5 How. R. 431. In this case it was held, that a collision occurring in one of our navigable rivers, where the tide ebbs and flows, is within the admiralty jurisdiction of the courts of the United States, notwithstanding the locality of the collision was infra corpus comitatus. The jurisdiction in a case of that nature is not restricted in this country as in England. It is not essential, in order that the jurisdiction may attach, that the collision should occur su'per ahum mare, or without the fauces terroe. In England the CH. X.] OF SALVAGE. 317 navigable from the sea, within the ebb and flow of the tide, although the locality may be infra corpus cojiiilatus.^ It is immaterial whether the salvors accidentally tail in with the wreck and volunteer their services, or are called upon by the owners, or persons interested in the wreck, to aid in saving it. The place and the peril determine whether it is a case of salvage. «§. 384. By saving the property, the salvor acquires a jus in re, and a complete possessory right against all persons claiming an interest in it, to retain it until his compensation is paid, or until he can proceed to enforce his right against it by due course of law. As a general principle, the right of the salvor attaches to the thing, and does not constitute a foundation for any personal claim against the owner, inde- pendently of the property saved.- The only cases which I have been able to find where the jurisdiction of the admiralty has been exercised in personam, are those, in which the jurisdiction was restricted by the statutes of Richard. But those statutes were never in force in any of the American Colonies, except as they were specially adopted by the legislation of some of them, and therefore arc not to be taken as a rule in the admiralty courts of the United States in cases of collision. 1 The Hope, 3 Rob. 215 ; The Trelawney, Id. note ; The Schooner Bos- ton, 1 Sumn. R. 328 ; 1 Peters's Adm. Decisions, 87, 91 ; The Schooner Emulous, 1 Sumn. R. 207, 210; The Brig llealy, 4 Wash. G51. In the case of The Schooner N. Carolina, 1.5 Peters, 41, the points in controversy were, whether salvage was due, and if due, how much? Taney, C. J., delivered the opinion of the court. "Upon such questions," he observed, " there can be no doubt of the jurisdiction of a court of admiralty, nor of its authority to proceed in rem, and attach the property detained. The ad- miralty is the only court where such a question can be tried, for what oilier court but a court of admiralty has jurisdiction, to try a question of salvage ' " The 19th rule of Admiralty Practice, is as follows : " In suits for salvage, the suit may be in rem against the property saved, or the proceeds thereof, or in personam against the jiarty at whose re(iue8t and for whose bonclit the salvage service has been performed." Vide Brevoor v. The Fair Ameri- can, 1 Peters's Adm. R. 94 ; American Ins. Co. v. Canter, 1 Peters's Sup. C. Rep. 511. 2 The Emblem, Daveis's R. 68. 27* 318 MARITIME LAAV. [CH. X. owner wished to receive his goods before proceedings at law were instituted, and obtained them. Under such circum- stances a personal libel for the salvage may be maintained, and upon the ground that the owner is in possession of his property.^ The claim for salvage, as was observed by Judge Peters, in the case of The Fair American,^ as a personal de- mand, is not an unconditional debt, nor in all cases is a claim for freight. In either case the owners may refuse to take the goods. But if they receive them, the debt is absolute. The acceptance of the goods is a consummation, and not an extinguishment of the claim. The cause of action in a case of salvage, does not arise from any implied contract on the delivery. It originates in the saving on the sea, and is pre- existing to the delivery. The right to salvage is not merely inchoate before any delivery to the owner, but complete. He has the election to take the thing or not. If he refuses, the thing only is answerable for the reward for salvage. But if he receives the goods, though the lien upon them may be gone, and especially if they pass into the hands of a third person, yet the right to salvage continues. It becomes a personal claim, founded on the transaction at sea, and must be prosecuted in personam, in the admiralty. Of a case of salvage occurring on the high seas, the admiralty courts of the United States have exclusive jurisdiction. Indeed, no other court has jurisdiction to try a question of salvage. A court of common law has a concurrent jurisdiction where the case occurred infra corpus cojnitatiis, but only to give, not a salvage compensation, but damages in the nature of a quantum meruit. <§, 385. In a case of salvage, it is no objection to the ju- risdiction of the admiralty, that the parties on the record are foreigners. It is true, the courts of this country are not bound to take jurisdiction of controversies between foreign- i The Hope v. Trelawney, 3 Rob. 215, and note. 2 1 Peters's Adm. R. p. 94. CH. X.] OF SALVAGE. 319 ers who have no domicil here, as they are in the case of citizens, or residents, who are entitled to claim of right the benefit of our laws. But they have a discretion whether they will take cognizance or not, and they cannot be charged with a denial of justice if they remit the parties, with their rights, to their own tribunals. Courts of admiralty, how- ever, as matter of practice, have always been in the habit of entertaining suits between foreigners in cases of salvage, bot- tomry-bonds, and seamen's wages, when a refusal to inter- pose might occasion a failure of justice. In salvage cases this jurisdiction has been less doubted than in others, because salvage is a question arising under the jus geiiiium, and does not ordinarily depend on the municipal laws of particu- lar countries.^ <§> 386. For the quantum of salvage to be allowed, no positive rules are fixed. It depends on the merits of the salvors, in estimating which a variety of circumstances have their influence.^ The compensation should be governed by a compound consideration of the importance of the service rendered, and the danger and labor to which the salvors were exposed in rendering it, and the importance of the service 1 Judcre Ware, in the case of The Bee, Ware's Rep. 23-2, 236 ; The Ship Blaireau", 2 Cranch, 185. In tlie case of The Two Frie.uls, 1 lU.b. 271, 282, the jurisdiction of the court was questioned, upon the ground that the ship was an American ship and the parties American seamen. Sir William Scon, after declaring that the parties were not American but British seamen, proceeded as follows. "It is asked, if they were American seamen, would this Court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean time I will say without scruple that I can see no inconvenience that would arise i( a Hriiish court of justice was to hold plea in such a case, or conversely if American courts were to hold pleas of this nature respecting the merits of Briiish seamen, on such occasions, for salvage is a question oi ihc jus gentium ^ " Between par- ties who were all Americans, if there was the slightest dismclinatu.n to sub- mit to the jurisdiction of this Court, I should certainly not mclinc to mtcrfcrc, for this Court is not hungry after jurisdiction, where the exercise of il unot felt to be beneficial to the parties between wliom it .a to operate. 2 Talbot V. Seeman, I Cranch's Rep. 1. 320 MARITIME LAW. [CH. X. depends upon the value of the property saved, and the extent of the danger which threatened it. With a view to public policy this allowance should be weighed in a liberal scale, but with a primary regard for the unfortunate sufferers, whose protection, relief, and interests are the true objects of policy. ^ The courts of this country have rarely given less than one third of the property saved, nor more than one half, unless the services have been of an inconsiderable nature, or the amount of the property has been very great.^ It should be 1 Judge Hopkinson, in the case of The Elvira, 1 Gilpin's R. 60, 68. la the case of The Ship Henry Ewbanlc, where the property was derelict, and a moiety allowed to the salvors, (1 Sumn. R. 413,) Judge Story, in remark- ing uponthe rate of salvage remuneration, said : "Salvage is not a ques- tion of compensation fro opere et More. It rises to a higher dignity. It takes its source in a deeper policy. It combines with private merit and in- dividual sacrifices, larger considerations of the public good, of commercial liberality, and of international justice. It offers a premium, by way of honor- ary reward, for prompt and ready assistance to human sufferings, for a bold and fearless intrepidity, and for that affecting chivalry, which forgets itself in an anxiety to save property as well as life." 2 Abbott on Ship. p. 660, note, and authorities there cited, la the case of The William Beckford, 3 Rob. R. 355, Sir William Scott said: "The principles on which the court of admiralty proceeds, leads to a liberal re- muneration in salvage cases, for they look not merely to the exact quantum of service performed in the case itself, but to the general interests of the navigation and commerce of the country, which are greatly protected by ex- ertions of this nature. The fatigue, the anxiety, the determination to encoun- ter danger when necessary, the spirit of adventure, the skill and dexterity which are acquired by the exercise of that spirit, all require to be taken into consideration. What enhances the pretensions of the salvors most, is the actual dantrer which they have incurred." In this case less than one fourteenth of the property saved was allowed to the salvors. Vide La Belle Creole, 1 Peters's Adm. Dec. 31 ; The Cato, Ibid. 45 ; The Polly, 1 Gal. 134; The Blaireau, 2 Cranch, 240 ; The Cora, 2 Peters's Adm. Dec. 361 ; The Maria, 2 Peters, 424. In the case of The Elvira, 1 Gilpin's Rep. 75, Judge Hop- kinson, in assessing the compensation, said : " We must not teach a salvor that he may stand ready to devour what the ocean may spare, he must not be permitted to believe that he brings in a prize of war, and not a friend in distress. If he has afforded his assistance to the distressed in a proper spirit, he will be satisfied with a just and fair remuneration for the labor, hazard, and expense he has encountered in the service, and it is only a proper spirit CH. X.] OF SALVAGE. 321 observed, that courts of admiralty are disposed to bestow a larger remuneration where the salvage service is performed by or for steam vessels, than in ordinary cases. Steam vessels are usually fitted out at great cost, and possess great skill and power. At the same time, they are supposed to make large profits, particularly steamboats carrying passengers. These circumstances are taken into consideration, as well when they perform a salvage service, as when they them- selves are the objects of such service ; and while in the one case they are paid with a very liberal hand, in the other case they are adjudged to pay in the same proportion.' <§, 387. In cases of derelict, that is, where there has been an abandonment of the property by the master and crew, aiiinio lion revertendi, it has been the habit of admiralty courts to decree one moiety to the salvors. But it is not an inflexible rule. It yields to circumstances. And if it ap- pears that great danger has been incurred, and unusual gal- lantry displayed, the favored proportion of a moiety will be deviated from. It has been said, however, that on all occasions a court of admiralty has great reluctance in deviating from a moiety, and expects a very strong case to be made out, in which, upon other principles, there would be a very great disproportion between the services and the compensation ; so sreat, indeed, as in a moral and legal view to constrain the court to deviate from it.- that we should seek or desire to satisfy. To this measure of compensation, the judge, governed by a liberal policy, will add a reasonable encouragement, which the generous and humane will hardly need to prompt men to exer- tions to relieve their fellow-men in danger and distress. But we must re- member, that the policy of the law is not to provoke or satisfy the appetite of avarice, but to hold an inducement, to such as rc-iuire it, to make extra- ordinary efforts to save those who may be encompassed wiili perils beyond their own strength to subdue." 1 The Raikcs, 1 Ilagg. 21G; The London Merchant, 3 Ilagg. 101 ; The Perth, Ibid, no'; The Graces, 8 Jurist, 501 ; 2 W. Hob. 2!»» ; The Ardin- caple, 3 Hagg. 151. 2 The Schooner Emulous, 1 Sumn. It. 207 ; The llcnty hul.:ink. Ibid. 411. In the latter case, Judge Story vindicated, with his usual ability and 322 MARITIME LAW. [CH. X. <§, 388. From what has already been said, it will be seen, that in cases of derelict, although the property is abandoned, and abandoned animo non revertendi, still the owner's right of property continues. That is not lost, for the abandon- ment is not of the right of property. The owner abandons pro tempore his right of possession, which is transferred to the finder, who becomes bound to preserve the property with good faith, and to bring it to a place of safety for the owner's use, and he acquires a right to be paid for his services a reasonable and proper compensation, out of the property itself. He is not bound to part with the possession until this is paid, or until it is taken into the custody of the law, preparatory to the amount of salvage being legally ascer- tained.^ <§, 389. Where the master and crew abandon the vessel voluntarily, but without any intention of returning, and are picked up directly afterwards, whilst in sight of the wreck, the vessel and cargo thus left are deemed to be derelict. Thus in the case of The Schooner Boston, ^ the master and crew, finding the vessel in a sinking condition, as was sup- posed, took to the long-boat and left her as soon as possible. In about an hour after leaving her, and being about two or three miles distant from her, they came across the ship Mag- nolia, then on a voyage from New York to Boston, and got aboard of her about one o'clock in the morning. Upon this posture of facts, it was held that The Boston was a derelict ; — that any subsequent change of opinion and action of the eloquence, the policy of adhering to the rule, which gives to the salvors a moiety of the property in cases of derelict. He said it had the support of the authority of the ablest judges for many ages, and in an especial manner of that court, whose judgment he was bound to hold in the highest respect. Certainty, in this case, as in many other cases, is far more important than mere theoretical propriety. 1 The Bee, Ware's Rep. 332. 2 1 Sumn. Rep. 334. Two fifths of the value of the ship and cargo were adjudged in this case to the salvors. CH. X.] OF SALVAGE. 2'2'3 master and crew, under new circumstances, did not affect the nature of the original transaction. The original animits 71071 revertendi was not done away by the aid which the master and crew of The Boston rendered, under the auspi- ces of the Magnolia. But in a case of this nature, tlie sal- vage service, in point of merit, is in no degree changed, if it should be deemed not a case technically of derelict. It is, at all events, a case of quasi derelict, where all hope of re- covery, for the time being, was entirely abandoned. <§. 390. When the owner, or the master and crew who re- present him, leave a vessel temporarily, without any intention of a final abandonment, but with the intent to return and resume the possession, she is not considered as a legal dere- lict. The right of possession is not lost by such temporary absence for the purpose of obtaining assistance, although no individual may be remaining on board for the purpose of retaining the possession. Because, as we have already seen, property is not derelict, and the possession left vacant for the finder, until the spes rccuperandi is gone, and the ani- mus revertendi is finally given up.^ <§. 391. When property is left temporarily to the mercy of the elements, whether from necessity or any other cause, but without any intention of a final abandoinncnt, it is not, of course, upon the principles already stated, a legal derelict. But a person who finds it thus apparently abandoned, and takes possession of it, with the bond fide intention of saving it for the owner, will not be treated as a trespasser. On the contrary, if, by his exertions, he contributes materially to the preservation of the property, he will be remunerated according to the merit of his service as a salvor.- 1 The Bee, Ware's Rep. 340. 2 The Bee, Ware's licp. :il(). For cases of derelict, vide Tj Rob. 3C3; The Fortuna, 4 Rob. l'J3 ; 1 llu-rg. 383; 2 lla-,';?. 8'J ; Bee's Kcp. 139; 1 Mason, 372 ; Bee, 2(i0 ; 2 Wash. C. C. R. 8 ; 2 Slory, 10:> ; 1 (Jul. 133 ; 324 MARITIME LAW. [CH. X. <§, 392. If property, abandoned by the master and crew, be taken possession of by one set of salvors, a second set have no right to interfere with them, and become participators of the salvage, unless it appears that the first would not have been able to effect their purpose without the aid of the others. The same principle is applicable to a case where the master and crew of the vessel are able to effect the purpose of pre- serving and bringing her safely in without other aid.^ But, if in either case assistance is proffered and accepted, it must be paid for. The compensation, however, can hardly be de- nominated a salvage compensation ; it is little more than a mere remuneration pro opere et lahore. <§> 393. If salvors, in effecting a salvage service, themselves fall into distress, and are relieved by other salvors, they do not lose their original right to salvage. The co-salvors come into the possession of the property with the consent of the first salvors, under their title, and not in exclusion of it. And they are entitled to partake in the salvage compensation according to their merit. Second salvors cannot lawfully make it a condition of giving assistance, that the original salvors shall abandon all claims to salvage.^ " It would be 1 Rob. 37. In The Ship Bellona, Bee's R. 193, Judge Bee, in assigning a moiety of the property to the salvors, observed : " I have always considered cases of derelict as different from other claims for salvage, and have invaria- bly decreed one half by way of compensation. Circumstances may induce me, on future occasions, to give less ; I would not, therefore be understood as laying this proposition down universally. But I cannot conceive that the owners ought by any considerations to be divested of more than a moiety." With reference to the latter remark of Judge Bee, it may be observed that, in the case of The Jonge Bastian, 5 Rob. 322, Lord Stowell allowed the salvors two thirds of the property saved, being jC3,400 ; and in Sprague v. 140 Barrels of Flour, 2 Story's Rep. 195, Judge Story adjudged a moiety of the gross proceeds to the salvors, and charged the costs and expenses exclu- sively on the other moiety. 1 The Elvira, 1 Gilpin's R. 67 ; Abbott on Shipping, p. 662 ; 1 Sumn. R. 414. 2 The Ship Henry Ewbank, 1 Sumn. R. 400. CH. X.] OF SALVAGE. 325 a new doctrine to me, that, if salvors themselves fall into a state of distress, they can obtain elfectual relief only by a surrender of all their own title to salvage ; that, if they were to navigate a salvage ship across the Atlantic or Pacific, and they should afterwards be incapable of proceeding far- ther without some substantial assistance, that assistance can be purchased only at the peril of a loss of all their antece- dent services." ^ <§) 394. Good faith obliges the first set of salvors, if they cannot, with their own force, convey the property to a place of safety without imminent risk of a total or material loss, to accept the assistance of other persons proftering their aid, and they cannot exclude them from rendering it, under the pretext that they were the first finders, and had thus gained a right to the exclusive possession. When persons once en- gage in a salvage service, their interest is not alone involved. They become obligated to the owner of the property, to use all reasonable and available means to insure its safety. The principles of good faith are of universal obligation, and binding in all cases in which the interests of others arc . involved.- ^ 395. Where there are conllicting claims for salvage, the onus probandi lies on the second set of salvors, to establish most clearly, either an adoption of their services or an in- competency in the first occupants to efl'ect the salvage, or in other words, an absolute necessity for their interference. A mere acquiescence in, or submission to, the assistance of second salvors, by first salvors, under the innncnce of su- perior numbers, will not lay the foundation of a claim for salvage.^ ^ 396. We have now seen what constitutes a derelict, and 1 Judge Story, in the case last cited. 2 The'Ainclliybi, DaviMs's 11. '20, Ware J. 3 The Eugene. Bourne, 3 llagg. ICO. MAR. 28 326 MARITIME LAW. [CH. X. what rate of compensation is usually allowed to salvors in cases of that nature. It will be our next inquiry, as to the circumstances of distress, which will lay the foundation for a claim of salvage, in cases where the property is not dere- lict. It seems to be considered, in many of the cases, that when a ship or its cargo really and absolutely needs assist- ance, and that assistance is rendered and accomplishes the object for which it was rendered, it constitutes a case of salvage. Thus, in The Vrouw Margaretha,^ a foreign vessel had run on a sand on the Essex coast and was afterwards brought off, on the flowing of the tide, by the assistance of the master and crew of a fishing smack. This was consi- dered a salvage service, although of as low a degree of sal- vage merit as could be presented to the view of a court. " Some service, however," said Sir William Scott, " has been rendered, and some recompense must be acknowledged to be due. I think the £50, which it seems has been offered on the part of the ship, is fully sufficient." «§, 397. The service which was rendered in The Vrouw Margaretha, although denominated a salvage service, was by no means compensated on the principle of a salvage reward. Indeed, it seems a misnomer to call a service of that or simi- lar nature, a salvage service. To constitute a case of salvage, in the proper sense of the term, the property must be in- volved in danger, and danger not merely of a speculative character, but real and immediate. Where such danger ex- ists, of whatever degree, the persons who go to the relief of the property and rescue it, are salvors, and are entitled to a salvage compensation. Where the danger does not concur with the service, a remuneration may be given, but little more than a mere remuneration pro opere et lahoreP- ^ 398. A court of admiralty has no authority to allow a 1 4 Rob. Adm. R. 84. 2 Talbot t;. Seeman, 1 Cranch,! ; The Clifton, 3 Hagg. 117; The Ca- nada, Bee's R. 90. CH. X.] OF SALVAGE. 327 reward merely for saving life. '• That," observes Lord Stowell, " must be left to the bounty of individuals ; but when it is connected with the preservation of property then the court can take notice of it, and it is always willing to join that to the animus displayed in the first instance.'' ' But, when it is simply a preserving of life, a court of admi- ralty has no right to grant a reward. It has no right to take my property and bestow it upon a third person for saving my neighbor's life. That certainly is a very obvious princi- ple, if not of morals, at all events, of law. <§, 399. The Emblem ^ was a case, in which the saving of life was connected with the saving of property. It was ad- judicated by that accomplished jurist, and most estimable man, the District Judge of Maine, Judge Ware. It appeared that The Emblem, belonging to the port of New Bedford, sailed from Apalachicola on the ISth of March, IS 10, for Havana, with a crew of six hands and with five passengers. On the morning of the 25th she was struck by a squall, about six o'clock, and upset. She lay upon her beams for about eight hours, when her masts gave way and she righted. The waves ran high and continually broke over her, and the crew and passengers could save themselves from being washed over only by lashing themselves to the wreck. In this situation she lay from 6 o'clock in the morning of the 25th, to the same hour in the morning of the 29th. Duruig the whole time the weather was boisterous, and the waves constantly broke over the wreck and the heads of the persons on board, so that they were constantly kept wet, lashed to the wreck, to save themselves from being carried away by 1 The Aid, 1 Hagg. 83 ; see also The Two Calharincs, 2 Maaon, 319. By the 9 and' 10 Victoria, c. 99, ^ 19, every person acting or being emidoyed in the preservation of the life of any person on board any «bip or vt^^el .n distress, shall be onliUed to salvage. Hut, independently ol statuf r.^.ula- tions, the law is as staled in the text. 2 Davies's Rep. 01. 328 MARITIME LAW. [CH. X. the waves, and without food or drink. Here this vessel lay for four days, in one of the most frequented parts of the American seas, with vessels continually passing her, (twenty- three were in sight at different times,) some of them almost within hailing distance ; but although they were in full view of this unhappy company who were lying thus lashed and dying upon the wreck, no one came to their relief, until more than half of their number were released from their suffer- ings by death, and consigned to a watery grave. After de- tailing these facts, Judge Ware observed : " If these facts are to be taken as a just measure of the humanity of the persons who frequent those seas, I know not but it may be the part not only of humanity, but of worldly wisdom to let them understand that sometimes even in godliness there is gain, and to tempt them by the allurements of pecuniary profit, if they can be led by no other, to acts of humanity and mercy." The Emblem, or rather the passengers and crew, were relieved from their perilous situation by the Schooner Charles Miller. The motive for the deviation of the Miller, was the preservation of human life.^ When the survivors upon the wreck were safely lodged in the salvor's vessel, she continued on her way ; but about two hours after, the wind subsiding, and having learned that there was some property of value on board the wreck, the captain of the Miller returned for the purpose of saving it. The acquiring of any reward for themselves appears to have been, in the minds of the salvors, an after, or secondary consider- ation. " I am clearly of the opinion," said Judge Ware, " that, in this case, looking at the risk, time, and labor of the 1 The maritime law, looking to the general benefit of commerce, does not prevent the master from deviating to save property in distress, if he deem it fit in a sound exercise of his discretion. As between himself and his own- ers, the usage of the world has clothed him with this authority, and in re- turn for such extraordinary hazards, it has enabled the owner to partake liberally in the salvage reward for the meritorious service, when it is suc- cessful. The Boston and Cargo, 1 Sumn. Rep. 328 ; see also the Centu- rion, Ware's R. 477. CH. X.] OF SALVAGE. 329 service only, the remuneration ought to be liberal, and that the humanity of the salvors, although it cannot be the object of a direct reward, in the way of salvage, is not to be for- gotten in determining the rate of salvage upon the property. Not that the Court has the authority to take one man's pro- perty and appropriate it, as a reward for saving another man's life ; but that the general principles of humanity and of en- larged policy, applicable to these cases, where all, who are interested in adventures upon the high seas, are liable to be- come in turn the salvors and the saved, require that the cir- cumstance of the preservation of life ought not to be kept wholly out of sight in measuring the reward." <5> 400. Money found on the person of a passenger drowned, and on board a wrecked vessel, is not subject to salvage ; ^ nor is salvage allowed for bills and drafts saved from a wreck, or for other papers, the evidence of a debt or of title to pro- perty. In cases of that nature the common-law rule pre- vails, by which the finder of property which has been casu- ally lost, has no legal claim against the owner, to any thing in the nature of a reward or compensation for finding it. All that he can pretend to, is the repayment of the actual expenses he has incurred in preserving it ; and upon the pay- ment of these, the owner is entitled to receive his property free from all other charges.^ <§> 401. A rescue of the ship from mutineers does not give a claim to salvage ; for it is the duty of the crew to give every assistance in their power to prevent or quell a mutiny, and to use their utmost exertions to preserve or recover the possession of the vessel and goods of their employers. The case is different from that of rescue from an enemy, because there, the moment the capture is effected, the crew are dis- charged from their duty to their employers. The contract 1 The Amethyst, Davcis's R. 20. 2 The Kiablem, Davcu,'8 R. C«. 28* 330 MARITIME LAW. [CH. X. between the parties is at an end. The seamen no longer constitute the crew of the vessel, but become prisoners of war. Not so in the case of mutiny, for that does not dis- charge them from their duty to their owners, whose property they are bound, if possible, to recover.^ <§> 403. Where a merchant vessel renders assistance to an- other merchant vessel in distress, even in a case where that distress does not arise from the dangers of the sea, and where the assistance is not of a maritime nature, a salvage com- pensation will be allowed. In the case of The Trelawney,^ it appeared that the ship was in the complete possession of insurgent slaves, who had overpowered the master and the crew, and had obliged them to quit the ship. The sal- vors compelled the crew of The Trelawney to do their duty, they afforded them assistance in it, and finally succeeded, after a severe contest, in quelling the mutiny, and recovering possession of the ship. Under such circumstances, Sir Wil- liam Scott applied the principle of salvage. He allowed one-tenth of the value of the rescued property to the captors. But in cases of this nature courts of admiralty will not allow salvage to government vessels, unless great danger has been incurred, and great exertions employed in performing the service ; because there is supposed to be an obligation upon them to render services of that character, and without having in view a salvage reward. However, if the exer- tions which they employ, are of a very meritorious and ex- traordinary kind, they will then be considered as entitling to a salvage remuneration.^ Such, I apprehend, will be deemed to be law in this country. <§, 403. It is the doctrine of the English Court of Admi- 1 The Governor Raffles, 2 Dod. 17, 18. 2 4 Rob. 223. 3 The Francis and Eliza, 2 Dod. 118, 119 ; see also The Rapid, 3 Hagg. 421; The Lustre, Ibid. 155; The Clifton, Ibid. 121; The Mary Ann, 1 Hagg. 158 ; The Wilsons, 1 W. Rob. 172. CH. X.] OF SALVAGE. 331 rally, that where salvage assistance is rendered by vessels belonging to the government, and there is personal risk and labor, the officers and seamen are entitled to be rewarded precisely in a similar manner, and on the same principles, and in the same degree, as when any other persons render that service ; but with regard to the use of the vessel, a different consideration applies, and a less remuneration would always be made on account of the vessel being the property of the country ; and the property of owners, under these cir- cumstances, never being risked.^ AVe are now referring to a case of salvage assistance, rendered to a ship in distress, that distress arising from the dangers of the sea, and the as- sistance rendered being of a maritime character. And wc presume the English doctrine will be recognized by the courts of this country, should a case arise calling for its application. <^ 404. It frequently occurs, that salvors bind themselves by an agreement with the master or owners of the ship in distress, to accept a stipulated sum for their services. The general principle with respect to such an agreement, is this, that the party who relies upon it, must prove two things ; first, that such agreement was made, and secondly, that it was just. Where there has been a definite, distinct agree- ment, with ample time for the parties to consider what they are doing, and no advantage has been taken of the circum- stances of distress in which the one party is placed, such an agreement so entered into, a court of admiralty will not dis- turb .2 1 The Iodine, Pritcliard's Adm. Dig. 456, note. 2 The British Empire, 6 Jurist, 608; The True Bhic, '2 W. Uoh. 17<» : The Emulous, 1 Sumn. 207. In this latter case, Judge Story, .speukinj,' of an agreement of the nature described in the text, said: " 1 take it to bo very°clear, that where service has been rendered under circumstancca which establish that the parties have voluntarily and without any conir.dlinp ne- cessity on the side of the proprietors of tiic property saved, or tlieir af,n'nti., entered into a contract for a fixed compensation, or upon the ordinary terms 332 MARITIME LAAY. [CH. X. <§, 405. Whilst the master of a vessel, performhig a salvage service, may, under his general aiUhority, bind his owner by an agreement, fixing the rate or amount to be paid for such service, neither he nor the owner have any authority to bind the crew by such an agreement. ^ In the case of the Sarah Jane,2 the defence to a claim for salvage, asserted by the crew of the salvor vessel, was, that the salvage reward had been paid, and received by the master, who professed to act on behalf of himself and the owners, mate, and crew of his vessel, and of all other persons interested in the transaction. A receipt for the money was given to this effect, but its va- lidity was denied upon the ground that the master had no authority to give such receipt, without the consent of the whole crew. Upon these facts, Dr. Lushington observed : " The question arises whether the master was authorized to act for the crew, without their consent being directly or indirectly first given. It is unnecessary, I think, to revert to the principles which I examined in the case of The Bri- tain, and in other cases, for the purpose of showing, that in all ordinary cases of salvage, neither the owners nor the master have a power of binding the crew, without thgirpre- of a compensation for labor and services quantum meruerunt, in either case it does not alter the nature of the service, as a salvage service, but only fixes the rule by which the court is to be governed in awarding the compensa- tion. It is still a salvage contract, and a salvage compensation. It is true, that contracts made for salvage services are not ordinarily held obligatory by the court of admiralty upon the persons whose property is saved, unless* the court can clearly see that no advantage is taken of the parties' situation, and that the rate of compensation is just and reasonable. The doctrine is found- ed upon principles of sound public policy, as well as upon just views of moral obligation. No system of jurisprudence, purporting to be founded upon moral or religious, or even rational principles, could tolerate for a moment the doctrine, that a salvor might avail himself of the calami- ties of others to force upon them a contract unjust, oppressive, and ex- orbitant ; that he might turn the price of safety into the price of ruin ; that he might turn an act, demanded by Christian and public duty, into a traffic of profit, which would outrage human feelings, and disgrace human justice." 1 The Britain, 1 W. Rob. 41. 2 2 W. Rob. 115. en. X.] OF SALVAGE. 333 vioiis ccHisent." "I hope this case will be a warning in fu- ture cases, that owners cannot safely enter into a compromise of this description, which includes the interests of all per- sons that have rendered service to their vessel, without pro- curing a release from all parties interested, or incurring a risk of the consequences." <§> 40G. The master or owners of a ship have no right to make an agreement for salvage assistance to the ship, irre- spective of the cargo. " Such an agreement would be an encouragement to fraudulent bargains by owners and masters of vessels, to the detriment of owners of the cargo, and, of course, salvors would make a bargain much more advan- tageous to the owners of the ship with the master, when they are sure of obtaining his assistance to get a larger sal- vage from the owners of the cargo. If there was any such agreement in this case, (which I am not at all disposed to conjecture,) but if there were, I should decidedly set my face against it ; and I now state, that should I ever find this to be the case, or any thing at all approaching to it, I shall at once refuse to pronounce any salvage due at all under such circumstances." ^ «§, 407. It may be here observed, that when the cargo is really in danger, and, in consequence, is transhipped, the transhipment constitutes a salvage service, and is not aflected by the degree of danger. Salvage by transhipment, how- ever, is looked upon with jealousy, as leading to deception on owners and underwriters.- But when the danger is made to appear, the principle of salvage is applied. The West- minster ■' was a case of this nature. A portion of the cargo on board the Westminster, of the value of £21,000, was transhipped by three large steamers of the value of £30,000, 1 Dr. Lnshington, in the case of The VVestminaler, 1 W. Uob. 235. 2 The Hope, 3 Ilagg. \22. 3 I W. Rob. 22'J. 334 MARITIME LAW. ^ [CH. X. with crews of fifty-eight men in all. One of the steamers was engaged for six days, another for four days, and another for three days. The cargo at the time was in danger of being lost, or, at least, much damaged, in consequence of the ship having struck on the rocks. £1,500 was awarded to the salvors on the cargo and its freight, thus rescued from the grasp of a peril by the transhipment. <^ 408. Owners of the cargo on board, are bound to contri- bute towards the salvage of the ship, as in a case of general average ; and the ship-owner, who pays the whole amount of salvage, has a lien upon the goods for the amount of the con- tribution, so as to acquire an insurable interest therein.^ <§> 409. Our next inquiry will be, as to who may become salvors? Lord Stowell has defined a salvor, to be a person who, without any particular relation to a ship in distress, proffers useful service, and gives it as a volunteer adventure, without any preexistent covenant that connected him with the duty of employing himself for the preservation of that ship.2 Hence it is, that, as a general rule, neither the master, nor a passenger, seaman, or pilot is entitled to a salvage com- pensation, for the ordinary assistance he may have aff"orded a vessel in distress, it being the duty as well as the interest of all persons on board, of every description, to contribute their aid on such an occasion.^ <§> 410. A passenger is not bound to remain on board a ship in distress, unless in a case of imminent danger, where his exertions are necessary to preserve the vessel and the lives of the crew; and he may leave her, if he has any opportunity 1 Briggs r. Mer. Tra. Ship Loan and Ass. Co. 18 Law Jour. 178 ; 13 Law Rep. 40 ; S. C. 2 Peters's Adm. R. 361 ; 2 Wash. C. C. R. 80. 2 The Neptune, 1 Hagg. Adm. R. 236. 3 The Branston, 2 Hagg. 3, note ; Hobart v. Drogan, 10 Peters's R. 110; 3 Kent, 246 ; Abbott on Shipping, p. 667. CH. X.] OF SALVAGE. 335 to do so. But if he remains, and assumes any responsibility in the conduct of the ship, or performs any service beyond the mere line of his duty, he will entitle himself to a share of the salvage reward.^ Where a passenger renders assistance in a case of rescue, his character and condition will be con- sidered in the allotment of salvage, both because the nature of a reward carries with it a necessary reference to the rank and circumstances of the person rewarded, and because an elevated condition gives the person greater influence over the enterprise, and will besides expose him to greater severity of treatment in cases of failure.- <^ 411. Official persons, while acting in the strict line of their duty, cannot be entitled to claim salvage. There may be cases in which extraordinary exertions will induce a court of admiralty to give an extraordinary compensation, but that compensation is by no means in the nature of salvage. To entitle to the latter, such persons must go beyond the line of duty. It is not sufficient that they employ exertions up to the extreme line of duty. They must exceed it.^ We 1 Newman v. Walters, 3 Bos. & Pull. 612. In this case, Lord Alvanley, after referring to the judgment of Sir W. Scott, in the case of the Joseph Harvey, 1 Rob. 30G, said, " Without entering into the distinction respecting the duties incumbent on a passenger in particular cases, I ihink, that if he goes beyond those duties, he is entitled to a reward in the same manner as any other person." Mr. Justice Heath, in giving his opinion, said, " The master is bound to carry the passenger to his place of destination, but the passenger may give up his passage, if he pleases, and quit tiie siiip, unless under very particular circumstances. If, indeed, the ship be attacked, ho must defend it, and he will be entitled to prize money. But if tlic ship be in such distress that she can only make her way by pumping, it is tiic duty of the crew to keep her alive until she arrives at a j)!aco of safety. Yet, if the passenger meet with another ship at sea, he is at liberty to abandon that on board of which he has taken his passage." See also The Brig Cora, 2 Wash. C. C. R. 80 ; The Harmony, 1 Peters's Adm. H. 70. 2 The Two Friends, 1 Rob. 285 ; Tho Brig Cora, ii Waali. C. C. R. 80. 3 Hobart v. Drogan, 10 Peters, R. 110; The Klvira, 1 fJilpin, f.O ; Tho Sloop Pcragio, Bee's Rep. 212. Sir William Scott, in the case of Tho Jo- seph Harvey, 1 Rob. 30G, speaking upon this subject, where pilots wore 336 MARITIME LAW. [CH. X. will endeavor to apply these principles to the case of a pilot. <§. 413. A pilot is a person taken on board, at a particular place, for the purpose of conducting a ship through a river, road, or channel, or from or into a port.i He has a statutable duty imposed on him, to vessels in ordinary circumstances, and -is entitled, therefore, to the statutable reward. But he is not bound to go on board a vessel in distress, or in apprehension of distress, arising from antecedent causes, to render pilot service for mere pilotage reward. If he takes charge of a vessel in such circumstances, he is entitled to a salvage remuneration. He is then performing a service beyond his duty as pilot, a service which he was under no obligation to perform, and which entitles him to the merit and compensation of a salvor.^ claiming as salvors, said, " It is allowed, that the court may, in cases of pilotage, as well as of salvage, direct a proper remuneration to be made. It may be, in an extraordinary case, difficult to distinguish a case of pilotage from a case of salvage, properly so called ; for it is possible, that the safe conduct of a ship, under circumstances of extreme personal danger and per- sonal exertion, may exalt a pilotage service into something of a salvage service, but in general, they are distinguishable enough; and the pilot, though he contributes to the safety of the ship, is not to claim as a legal salvor." See also Le Tigre, 3 Wash. C. C. R. 570. 1 Abbott on Shipping, p. 265. 2 The Star, 14 Law Rep. 487 ; The Frederick, 1 W. Rob. 17 ; 8 Jurist, 365 ; 9 Id. 191. In Hobart v. Hogan, 10 Peters, R. 123, the language of the court would seem to militate against what is stated in the text. "A pilot's duty," it was said, " is properly the duty to navigate the ship over and through his pilotage limits, or as it is commonly called, his pilotage ground. The case, therefore, necessarily presupposes that the ship is in a condition capable of being navigated ; distressed, if you please, and laboring under difficulties ; but still capable, in point of crew, equipments, and situation, of being navi- gated. No one ever heard of its being within the scope of the positive duties of a pilot to go to the rescue of a wrecked vessel, and employ himself in saving her or her cargo, when she was wholly unnavigable." It should be observed, with reference to this case, that the real point in judgment was, whether a pilot who went on board a wrecked and unnavigable vessel, which had been abandoned by the master and crew, and by his exertions brought her oiF and towed her into port, was to be deemed a salvor 1 It was con- CH. X.] OF SALVAGE. 337 «^ 413. In Newman v. Walters,^ Lord Alvanley ])uts a case which he considers as a clear case of salvage. " Suppose," said he, '-'a tempest should arise while the pilot is on board, and he should go off in a boat to the shore to fetch hands, and should risk his life, for the safety of the ship, in a man- ner different from that which his duty required; in such a case, it seems to me, that he would be entitled to a compen- sation in the nature of salvage ; and I am glad Sir W. Scott appears to entertain the same opinion." It is, perhaps, superfluous to add, that when a pilot assumes the charge of a vessel, under ordinary circumstances, he is bound to use his best exertions to bring her over his pilotage grounds. If a tempest arises, and she is threatened with being wrecked, his duty is to use his utmost exertions and skill to preserve her. All that is directly within the scope of his office, and the obligations it imposes. For such services, he can claim only his official compensation. <§> 414. A person may act as an agent and claim as a salvor, although he does not actually perform in person any thing, strictly speaking, in the nature of salvage service. Dr. Lushington, in his judgment in the case of "La Purisima Concepcion,"- refers to a decision of Lord Stowell's, which has never been reported, allowing £ 100 to a magistrate in Ire- land, for salvage services, which consisted in sending police tended by the respondent's counsel, that the pilot or pilots were bound in their character as such, to render this vessel any assistance in their power, and tiiat what they did was in discharge of their duty, and formed no case for a claim of salvage. But the court held that the service which was ren- dered was of a distinct nature and no more belonging to a pilot to do, than to supply a wrecked vessel witli masts or sails, or to employ lighters to dis- charge her cargo in order to float her. The question whether a pilot is bound to go on board a vessel in distress, although navigable, for a mere pilotage reward, was not before the court. Any observations, liii-reforo, upon tliat point, are not conclusive of tlio law, however much they may bo entitled to respect. 1 3 Bos. & Pull. 616. 2 13 Jurist, 'JG7. MAR. 29 338 MARITIME LAW. [CH. X. officers to protect the cargo. Dr. Liishington remarks, that there may be some doubt whether Lord Stowell did not go too far. There must have been some peculiar circum- stances in the case, beyond the mere employment of the police force, which induced Lord Stowell to allow a claim for salvage ; for, in the case of The Aquilia,i he refused salvage to a magistrate whose claim was founded upon the fact, that he had sent a police force to protect derelict property. " I do not remember," he said, "any case in which a magistrate, acting in discharge of his public duty, has demanded to be considered as a salvor ; " but he added, and expressed the true principle, " this, however, is certain, that, if a magistrate, acting in his public duty on such an occasion, should go beyond the limits of his official duty, in giving extraordinary assistance, he would have an undeniable right to be consi- dered as a salvor. It will, therefore, be necessary to inquire, what has been the extent of this gentleman's services? If they amount only to the ordinary discharge of his duty, I shall be disposed to leave him to the general reward of all good magistrates, the fair estimation of his countrymen, and the consciousness of his own right conduct. Now, I do not discover any peculiar vigilance or activity in his conduct on this occasion. The first finders sent to him to inform him of the situation of the vessel, and offered to put it into his possession. So far, he is only passive ; but he goes on to state, as an eminent service, that he sent fifteen men, under the obligation of an oath which he administered to them, to assist, and that by their exertions the ship was righted in the harbor, and two hundred persons who had come down," as it is said, "according to the custom of that coast, for plun- der, were driven off." There were other grounds of claim, but the judge disposed of the case as follows : " Upon the whole, commending this magistrate for what he did, but thinking he might, perhaps, have done more, I am not authorized to pronounce that he is a salvor in this case, nor 1 1 Rob. 46. CH. X.] OF SALVAGE. 339 entitled to any share of the salvage, which I decree to be paid to the other parties." <§> 415. In the case of La Piirisima Concepcion, the person who claimed as salvor resided in the neigiiborhood of a seaport, and carried on the business of a merciiant and ship- agent. A vessel was stranded in the vicinity of that port, and the master sought the assistance of the ship-agent, in his character as such, for the purpose of having such aid rendered to the vessel and cargo as, under the circumstances, might be necessary, namely, to take out the cargo, if that step was desirable, or otherwise to get the vessel olf the ground on which she was lying and into a place of safety. The agent personally superintended that service, but did not actively perform any part of the duty, or incur the slightest risk of his own life, or any danger to his own person. The question presented for adjudication was, whether a person so circumstanced could maintain, in a court of admiralty, an action against the ship and cargo so saved. Dr. Lushington, observing that it was an advantage, both for ship-owners and for merchants who are the proprietors of the cargo, and also for the advantage of persons who carry on the occupa- tion of a ship-agent, that there should be jurisdiction in the court of admiralty over a case of that nature, proceeded to adjudge, in accordance with previous cases, that the agent might claim as a salvor, and referred the accounts to the registrar and merchants for adjustment before distributing the reward. <§> 416. It is the doctrine of the English courts, that the crew cannot, without the intervention of circumstances, amounting to a dissolution of their contract, become salvors of their own ship. The maxim, tliat " freight is the mother of wages," is in a measure discarded, and it is iield, that in a case o°f shipwreck, although the vessel be destroyed, and the freight and cargo lost, yet the seamen arc entitled to waRCS for the voyage, if they have performed their duly, provided 340 MARITIME LAW. CH. X. some portion of the wreck happens to be saved, either by their exertions, or even by the exertions of third persons.^ The current of American decisions, on the contrary, do not allow the seamen, in such a case, to recover out of the frag- ments of the wreck, or from the owner personally, their wages eo nomine, but decree them a salvage remuneration.^ The doctrine, however, upon this subject, is a vexed and floating one in our jurisprudence. " Whether a seaman," said Judge Hopkinson, in the case of the Elvira,^ " can, in any case, become a salvor for services rendered to his ship, in any extremity of danger or distress, is another question, upon which I do not now give any opinion. Great judges have differed about it ; but it is clear, that a seaman is much more closely bound to a ship than a pilot, and his duties to her are far more extensive, permanent, and severe." «§, 417. In the case of The Brig Sophia,* it was held that when any part of the vessel or cargo, in a case of shipwreck, is saved by the meritorious exertions of the crew, they are entitled to receive their wages out of the property thus preserved. On this principle, it was said a new claim for wages is given by the law, although that which was founded on the original contract between the ship-owners and mari- ners is annulled and lost by the loss of the freight. Judge 1 The Neptune, 1 Hagg. 227 ; The Reliance, 2 W. Rob. 119 ; The Star, 14 Law Rep. 494 ; The Statute of 7 & 8 Vict. ch. 112, ^ 17, requires the wages to be paid, irrespective of freight, provided the seaman performs his duty. 2 1 Peters, Adra. R. 186, note ; Giles v. The Cynthia, 2 Peters, Adm. R. 203 ; The Catherina Maria, Id. 424 ; The Cato, 1 Peters, 48 ; The Harmony, Id. 70 ; Frothingham v. Prince, 3 Mass. 563 ; The Two Catherines, 2 Mason, R. 319 ; The Saratoga, 2 Gallis, 164, 183 ; Dunnett v. Tomhagen, 3 Johns. R. 154; 3 Kent's Cora. 195; Hobart v. Drogan, 10 Peters's S. C. R. 122. 3 1 Gilpin's R. 60. 4 1 Gilpin's R. 79. See also the case of the Hercules, Id. 184, where Judge Hopkinson held in accordance with his previous decision in the Brig Sophia. en. X.] OF SALVAGE. 341 Ware, in the case of The Dawn.^ whilst he held, that in case of shipwreck, the seamen wlio remain by the vessel, and exert themselves to save all that is possible of the ship and cargo, are entitled to their full wages, without deduction, out of the material which they save from the ship, if enough is saved to pay them, went further, and decided that they were entitled to a further reward in the nature of salvage against the whole mass of property saved. <^ 418. In the case of The Massasoit,'- Sprague, J., held, that in case of shipwreck, seamen are entitled to wages, as such, if by their exertions remnants of the vessel to the amount of the wages are saved, although no freight be earned. And that their right to wages is not defeated by the fact that they were prevented by sickness, or by the act of the owners in procuring other aid, and dispensing willi their services, from aiding in saving or guarding the materials of the wreck. He denied, that in such a case they could be deemed salvors. " This," he remarks, " would not only be inconsistent with the contract of hiring, but a starthng vio- lation of that principle of maritime policy which sedulously endeavors to bind up the interest of the mariner with that of the owner. It would be not only an iuducoment to relax his efforts in time of difficulty and danger, but a direct temptation to cause shipwreck and disaster, that he might successfully claim the large rewards oi salvage service." ^ 419. The authorities already cited sufficiently show the uncertain state of American Ia^v upon this subject ; and a recent decision in the Circuit Court of the United States by Judge Woodbury only serves "to thicken the confusion.' That lamented jurist, m the case of The Niphon's Crew affirmed the ma^im, that " Freight is the mother of wages. 1 26 American Jurist, 21(5 ; S. C. Davcis's Rep. I'Jl. 2 7 Law Rep. 522. 3 13 Law Rep. 2GC. 20* 342 MARITIME LAW. [CH. X. He said, that the principle on which some of the cases pro- ceed, namely, that the vessel when saved, in part or in whole, gives a title to wages, was, in his judgment, erroneous. Freight earned, or prevented by the owner from being earned, alone constituted the seaman's title to his wages. The cargo, and not the ship, was the security upon which he must rely. The logical consequence of this doctrine would seem to be, that, as the cargo or freight is only to be looked to for the payment of wages, irrespective of the ship, then the loss of the freight from shipwreck or other vis major would involve a loss of the wages, no matter how much of the ship was saved from the catastrophe. But when the security of the freight fails, the manifest hardship of carrying the principle fully out, compels those judges who uphold the maxim, that " freight is the mother of wages," and deny that the ship furnishes any title thereto, to resort to it at last, and, like Judge Woodbury, in the case of the Niphon, to treat the seaman's claim as salvage to be paid out of the fragments of the wreck. >§> 420. The American authorities without, I believe, any exception, establish the principle, that, in a case of ship- wreck during the voyage, where the freight is lost by the total destruction and loss of the cargo, the seamen, if they remain by the ship and assiat in saving any portion of it. will be entitled to receive their wages out of the fragments of the wreck, if enough is saved to pay them. But, while some of the cases treat their claim as one of salvage, others regard it as a claim for wages eo nomine^ and allow it as such. It is difficult to perceive upon what principles of justice or human- ity the doctrine, that seamen shall be deprived of all remu- neration for their services by the loss of the freight, or be compelled to rely upon the fragments of the wreck for their hard earned wages, can be maintained. They stipulate to perform certain duties. If they perform them, why should they not receive the stipulated reward ? Why should they, in addition to the hazards and hardships of the voyage, suffer en. X.] OF SALVAGE. 343 the loss of all their earnings by its misfortunes? ''What," said Lord Stowell, in the case of the Neptune, ^ " is the obli- gation which a mariner contracts with the ship in which he engages to serve ? It is not only to navigate her in favora- ble weather, but likewise in adverse weather, inducing ship- wreck, to exert himself to save as much of the ship and cargo as he can. It is a part of his bounden duty in his character of a seaman of that ship. In performing that duty, he assumes no new character. He only discharges a portion of that covenanted allegiance to the vessel which he con- templated, and pledged himself to give, in the very forma- tion of that contract, which gave him his title to the stipu- lated wages." The mariner, having performed his contract, " discharged his covenanted allegiance," exerted his strength, and exposed his life " to save as much of the ship and cargo as he could," upon what principle of natural justice or of sound policy should he be deprived of his wages, all except, perhaps, the value of the plank that carried him safely to the shore ? Is the contract which he enters into of no mu- tuality of obligation, binding upon him to the extreme limit,* exacting his utmost exertions in the trying hour of peril, but not obligatory upon the owner, if human strength and skill prove too feeble to resist the fury of the elements ? Such an interpretation of a seaman's contract seems inconsistent, and, we may add, unnatural and unjust. ^ 421. We have seen that many of the American cases proceed upon the principle, diat a mariner, in a case of ship- wreck, may entitle himself to salvage by savmg any part of the ship. It is doubted whether this principle is a sound one Shipwreck does not dissolve the mariner's contract. " It is the stipulated duty of the crew to protect the ship throu-h all perils, and their entire possible service, for this purpo;e, is pledged to that extent."^ Events, however, may 1 1 Hagg. U. 230. 3 Lord Stowell in The Ncplunc, 1 Ilagg. 230. 344 MARITIME LAW. [CH. X. happen, that will enable a seaman to become a salvor of his own ship. Whenever his relation to the vessel has been dissolved, he may then assume a new character. Capture discharges a seaman from his contract. If he assists in a rescue of the ship from the captors, he is treated as a salvor upon the ground, that it is no part of his duty to attempt a rescue. He is no more bound to incite or aid in a rescue than a passenger or any stranger to the ship.^ In the case of the Ship Blaireau, a seaman was left on board the wreck by the master and remaining crew, who abandoned it. The seaman alleged, that he was prevented by the officers and crew of The Blaireau from accompanying them on board the Spanish ship that took them off, in the first instance, by force and refusal of permission, but that he afterwards remained voluntarily. Being alone with the wreck, he endeavored, as he asserted, to repair the brig, put her before the wind, and hoisted a signal of distress. In this situation, she was found the next day by the ship Firm, bound from Lisbon to Baltimore. She was brought into Chesapeake Bay, after a navigation of nearly three thousand miles, by six persons who went on board of her from the Firm, and by the seaman who was found on board. It was held by the Supreme Court of the United States, that this seaman was clearly a salvor, and entitled to a salvage reward. " There was certainly," said Chief Justice Marshall, "no individual who assisted in bringing in the Blaireau, that contributed so much to her preservation as Toole. Every principle of jus- lice and every feeling of the heart must arrange itself on the side of his claim. But it is contended, that the contract he had entered into bound him to continue his endeavors to bring the vessel into port, and that the principles of general policy forbid the allowance of salvage to a mariner belonging to the ship which has been preserved. The claims upon him, on the ground of contract, are argued with a very ill 1 The Two Friends, 1 Rob. 271 ; The Harmony, 1 Peters's Adm. R. 70. CH. X.] OF SALVAGE. 345 grace indeed. It little becomes those who devoted him to the waves, to set up a title to his further services. The captain, who was intrusted by the owner with power over the vessel and her crew, had discharged him from all further duty under his contract, as far as any act whatever could discharge him, and it is not for the owner now to revive this abandoned claim." It will be seen that the court allowed salvage to the mariner, Toole, upon the ground that he had been discharged from his contract, and was thus ena- bled to become a salvor. Whether the court were risht or wrong in considering the circumstances of the transaction as amounting to a dissolution of the contract, is wholly imma- terial. The important consideration is, that it was only by regarding the contract as annulled, that the seaman was treated as a salvor. And that, it seems to us, is the only solid and proper ground upon which to place the claim of a mariner to a salvage remuneration. *o^ <§. 422. Where all the crew of a salvor ship are willing to engage in the salvage service, those who remain behind are equally entitled to reward as salvors with those who go on board the saved ship.^ <§. 423. Our next inquiry will be, as to what acts of the salvors will forfeit their claim to salvage. Embezzlement by a salvor, directly or indirectly by connivance, is punished by a forfeiture of all claim to the salvage remuneration. And it is immaterial w^hether the embezzlement was perpetrated at sea or in port, or after the property is in the custody of the law. If done in port, the felonious act is punish- able alone by the local tribunals; l)nt that circumstance does not form an objection to a court of admiralty in decreeing salvage, examining the charge of embezzlement, 1 The Caltimore.. 2 Dods. Adm. li. 132 ; The Centurion, Ware's U. 477. 346 MARITIME LAW. [CH. X. which, if true, goes to the very foundation of the salvor's right.i "§> 424. The embezzlement of one salvor does not preju- dice his co-salvors who are innocent. It only works a for- feiture of the share of the guilty party. And where the owner of a salvor ship has received from the owner of goods, saved from a wreck, the whole salvage compensation, without any deduction for embezzlement, he cannot set up, in defence to an action by one of the crew for his portion of the salvage, that the claimant had been guilty of embezzlement. 2 <§. 425. An abandonment of the service before it is com- pleted will defeat a claim for salvage, because no allowance is made for meritorious exertions alone. The property must be actually benefited.^ ^ 426. No acts of previous misconduct can be set up against a claim for salvage on the part of the crew, if, while actually engaged in the salvage service, they con- ducted themselves in an orderly manner, and were obedient to authority.* <§> 427. False pretences and fraudulent misrepresentations, made for the purpose of imposing a belief of nnaginary dangers and hardships which had never been encountered, in order to inflame the salvage reward, will be punishable by a court of admiralty, if not by an absolute forfeiture of all salvage, certainly by the allowance of a diminished compen- sation. Spoliation, smuggling, an obtrusion of services 1 The Blaireau,2 Cranch,265; The Rising Sun, Ware, 378; The Boston, 1 Sumn. 328. 2 The Rising Sun, Ware, 378 ; Darling v. Simpson, 19 Maine, 175. 3 The India, 1 W. Rob. 406. 4 The Centurion, Ware, 477. CH. X.] OF SALVAGE. 3 47 after the salvors have been formally discharged by the owners, a refusal to avail themselves of further assistance, which is offered and is needed for the safety of the property, and any subsequent negligence or misconduct of the salvors will either wholly forfeit the reward, or greatly diminish its amount.^ «§, 428. Salvors are admitted as witnesses to testify in their own cause, from the very necessity of the case. The court, however, exercises a discretion in receiving or refusing all such parts of the testimony as do not relate to facts occur- ring at the time of the alleged salvage service, of which, in some cases, the salvors are the only witnesses.2 indeed, it is said by very high authority, that salvors are incompe- tent to testify to any other facts than those which the court may deem to be peculiarly or exclusively within their knowledge.^ <^ 429. The distribution of the salvage money among the salvors rests in the discretion of the court, to be governed by the peculiar circumstances of each individual case. There are, however, some general rules, to which courts of admi- raltv ordinarily adhere. Thus, it is the practice to give the master of the salvor ship double the amount bestowed upon the mate, even though the latter is put in command of the salved ship. This is not, however, an inflexible rule. In a case of extraordinary exertion on the part of the mate, or of great perils, hardships, and sacrifices incurred by hmi, as commander of the actual salvors, his proportion is per- mitted to approach nearer to that of tiie master. I.ord Stowell has said, that "the owners of the salvor siiip m 1 The Elizabelh and Jane, Ware, 38 ; The BcUo Corruncs, Whoalon, 152; The Glasgow Packet, 2 W. Rob. 300; The I)o«seitei I'' J";'»«. 8f55 ; The Uukc of Manchester, Ibid. 803 ; The Neptune, 1 \\ . Hob. 297. 2 The Star, 14 Law Rep. 493. 3 The Henry Ewbank, 1 Sumner, 400. 348 MARITIME LAW. [CH. X. general have no great claim — as to labor and danger, none." But our courts, upon a principle both of justice and sound policy, allow them a liberal salvage, usually one third of the whole amount. When there is a deviation to save property, the insurance upon the ship is discharged. Every owner, unless endowed with very extraordinary virtue, would in- struct the master of his ship to refuse all assistance to vessels in distress, were it not that he is compensated for the risk incurred by the prospect of a liberal salvage remuneration. ^ In a case of extraordinary peril to the salvor vessel, in effect- ing salvage service, the owner may entitle himself to a greater proportion than one third. He has been allowed one half.2 •<5) 430. In ordinary cases, the shipper of cargo is not entitled to share in the salvage, unless, indeed, he has ex- pressly assented to the deviation, and thereby released the owner of the ship from his responsibility therefor. The allowance of salvage to the owner of the ship is founded on considerations that do not apply to the owner of the cargo. The former, as we have seen, by the deviation loses the security of his insurance policy, and becomes his own insurer. He is also under an obligation, arising from his general contract, to deliver the goods at the port of destina- tion, the perils of the seas and the acts of God only excepted. The master has no implied authority from the owner of the cargo to deviate from the voyage for salvage purposes. Hence it is, that the owner of the ship, in consequence of the deviation, not only becomes his own insurer, but is responsible to the owner of the cargo for any loss it may sustain therefrom. There is, therefore, a peculiar propriety in 1 The Henry Ewbank, 1 Sumner, 400, 429 ; The Blaireau, 2 Cranch, 240 ; The Cora, 2 Wash. 80, 87 ; 1 Peters, Adtn. R. 34, note ; Ware's R. 35 ; 1 Rob. 37. 2 The Ship Cato, 1 Peters, Adm. R. 48, 49 ; The San Bernardo, 1 Rob. 178 ; The Waterloo, 2 Dod. R. 412. en. X.] OF SALVAGE. 349 allowing him a liberal salvage for the risk he assumes. 2\o such consideration exists in favor of the owner of the cargo, because he incurs no risk, and needs no indemnity.* >§> -131. An apprentice will be entitled as a salvor to his share of the salvage, for his own use. The riglii of the master to the earnings of his apprentice, in the way of his business, or of any other business which is substituted for it, is different from a right to his extraordinary earnings, which do not interfere with the profits the master may legi- timately derive from his service. Of this latter description is salvage. It is an extra benefit, the reception of which docs not deduct from the profits the master is entitled to from his service. The master might, however, be entitled to a por- tion of the salvage, for having risked the future service pf his apprentice. - >§, 432. The case of a slave would seem to be clearly distinguishable from that of an apprentice. In iIk- latter case, the master is only entitled to the ordinary services of the apprentice within the scope of his apprenticeship duties. But in the former case the idea of properly is interposed, and the slave cannot, by any extra exertions or extraordinary services, entitle himself to the benefit of his earnings. They belong, like himself, to his master. Such would seem to be the logical result of the relation of master and slave. Uut the slave, like the apprentice, in cases of salvage, has been adjudged the salvage remuneration, to his own separate use.^ 1 The Ship Nathaniel Hooper, 3 Sumner, 580, 5^1 ; The Ship ( at.., 1 Peters, Ad.n. 4S, 00, 07 ; The Brig Cora, 2 Peters, Ad.n. H. ::oi , S. (.. 2 Wash. R. 80, 87. 2 The Ship Blaireau, 2 Cranch, 210; The Ann, '-> I .t.r.-. A-hu. It. 3 The Messenger, 2 Peters, A-hn. U. 2H1, 2h7. See al«o The lUa.rcau. 2 Cranch, 240. MAR. 3^ 350 MARITIME LAW. [CH. X. <§, 433, In salvage cases, the appellate courts of the United States, sitting in admiralty, are not disposed to encourage appeals upon light and frivolous grounds, nor in any case, unless there has been some clear, obvious, and determinate mistake of law or fact, which has led to an erroneous and extravagant diminution or increase of the salvage beyond what the circumstances manifestly justify. The policy of this rule has been vindicated by Judge Story, upon grounds perfectly satisfactory. " If there ever can be," he observes, "any class of cases to which the doctrine most emphatically applies, Interest Reipuhlicm, lit finis sit litiiim, that of sal- vage constitutes the class. The merits of such services rarely admit of any definite and exact compensation, and it would be delivering over the whole subject to interminable doubts, to encourage the efforts of the parties to gauge the discretion of the different courts, and to run a race for vic- tory upon the chances of the possible differences of judicial opinion, necessarily connected with the accidental views, or the complexional habits of thought of different minds. In matters of mere discretion, the mind of man must ever be varium et mutabile. It is on this account that it has become a general rule, I had almost said a fixed law, of our appellate courts sitting in admiralty, not to change the decree of the court below, unless there is an exceedingly strong case made out of an abuse or palpable mistake in the exercise of its discretion in the decree of salvage." ^ <§, 434. A few words with respect to salvage on a recap- ture, will close this chapter. A neutral can claim no salvage for a recapture from a belligerent, because the recapture is unlawful. And a neutral, captured by a belligerent, is to be discharged without payment of salvage. If the neutral, whilst in possession of the belligerent, is recaptured, there arises no claim for salvage. For the liberation of a clear 1 Bearse v. Three Hundred and Forty Pigs of Copper, 1 Story's R. 322. CH. X.] OF SALVAGE. 351 neutral from tlie hand of the enemy is no essential service rendered to him, inasmuch as the same enemy would be compelled, by the tribunals of his own country, after he had carried the neutral into port, to release him, with costs and damages for the injurious seizure and detention.' This doctrine is founded upon the supposed safety of the neutral ; but let a belligerent subject to condemnation all neutrals captured by its cruisers, and a very different rule is applied. A recapture, under such circumstances, from a belligerent thus lawless, confers a direct benefit upon the neutral, and therefore gives a meritorious claim to salvage. ^ 435. The rule of British jurisprudence, with resjicct to the property of allies, taken at sea by a common enemy and retaken by British subjects, is the equitable rule of recipro- city. " The maritime law of England,"' says Sir ^Villiam Scott, " having adopted a most liberal rule of restitution on salvage, with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle — in such a case, it adopts their rule, and treats them according to their own measure of justice." - The same rule has been established in this country by an act of Congress.3 «§, 436. It is sufficient to entitle a salvor to a just compen- sation, that a beneficial service has been rendered, by which the property has been rescued from imminent danger. And it is no answer to his claim, that his intention was to appro- priate the whole of the property to his own use, as where a vessel captured as prize turns out to be a mere case of sal- vage. The recaptor is seldom actuated by the sole view of savint' the vessel. In no case is tlie iiKpiiry made.* 1 Talbot V. Sec-man, 1 Crancl,, 1 ; The War Onhkan, '2 Hoi,. 2'JU. 2 The Santa Cruz, I Rob. 03. 3 Act of March 3(1, 180(1, c. 11, ^3. 4 Le Tigre, 3 Wash. 571 ; Talbot v. Seeman, I Cranch, 30. In iho c.»o 352 MARITIME LAW. [CH. X. of The Harmony, 1 Peters, Adm. R. 75, where Judge Peters allowed a sal- vage reward to two female passengers, for assisting in the rescue of the ship from the captors, the doctrine stated in the text, with respect to the motives of salvors, was alluded to. " It is unnecessary," he said, "to inquire into the motives inducing the recapture or rescue. Speculative or interested investi- gators, who, in analyzing the human mind, view the dark side of human nature, find that the best actions of men spring from selfishness. I do not envy them this discovery, or the humiliating reflections that flow from it. It is enough for our present purpose, that the recapture has been made, and that the owners of the ship and cargo have recovered their property to a very great amount. The benefit accruing to them, and not the motives, but the services of those, who, at the risk of their lives and with highly meritorious exertions, restored what otherwise would have been lost, are the leading objects of our present inquiry." en. XI.] OF THE mariner's contract. 353 CHAPTER XI. OF THE mariner's CONTRACT. <§, 437. We are now to consider a contract of a high and privileged nature — a mariner's contract for liiro and ser- vice. The office performed by a seaman is a meritorious and hazardous one. His compensation is inconsiderable, but it is protected with peculiar care. The law justly regards him as belonging to a class, which, from its general charac- teristics, is singularly liable to imposition. It therefore scrutinizes with a jealous eye, the agreements which he makes, and asserts his rights with a strong hand.» I In the case of Brown v. Lull, 2 Sumner's Rep. ll.'}, HI, Judge Slory portravs the character of seamen in the following language : " Seamen." he says '' are a class of persons remarkable for their rashness, ihoughtlcssncM. and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part .ncapa- ble of duly appreciating their value. They combine in a singular man- ner the apparant anomalies of gallantry, extravagance, profusion m expend- iture, indifference to the future, credulity which is easily won, and conf.Jencc which is readily surprised. Hence it is, that bargains between U.em and ship-owners, the latter being persons of great intelligence and shrewdness in business, are deemed open to much observation and scrutiny, for hoy involve great inequality of knowledge, of forecast, of power, and of condmon. Courts of admiralty, on this account, arc accustomed to con8>.l.-r s.an.rn as peculiarly entitled to U.eir protection. So that they have been by a ...mo. vhut bold ngure, often said to be favorites of courts of nd.n.ral.> In a u.t sense they ^re so, so far as the maintenance of their n«h.« an .he pru.ec i„n of tlJir interests against the effects of the superior .kill and .hrewdnc- of masters and owners of .hips are concerned. Court, of admiralty arc no. by their constitution and jurisdiction, confmc.l to the mere dry and po.. . « rules of the common law ; but they act upon the enlarged and liberal j»r, - prudence of courts ..f e,uity ; and. in short, so far a. their power, extend. ihev act as courts of equity." 30 * 354 MAKITIME LAW. [CH. XI. <§> 438. A mai^iner is a person employed on board a ship to assist in its navigation and preservation. The term in- cludes not only the officers and ordinary seamen, but all those who render necessary services on board, or contribute to the preservation of the ship ; such as surgeons, pursers, cooks, stewards, carpenters, coopers, engineers, and firemen. ^ But a barber, or a musician employed to serve as such, is not a mariner, nor entitled to the privileges of one.^ <§> 439. To constitute a mariner, in the sense of the mari- 1 Conkling's U. S. Adm. p. 71 ; The Prince George, 3 Hagg. Adm. R. 376 ; Black v. The Louisiana, Peters, Adm. Dec. 2G8 ; Turner's case, Ware's Rep. 83; Wilson v. The Ohio, Gilpin's R. 514; Macomber v. Thompson, 1 Sumner's Rep 384 ; The Farmer, Gilpin's Rep. 521. In the case of The Lord Hobart, 2 Dods. Adm. Rep. 104, Lord Stowell doubted whether a surgeon could be deemed a mariner within the meaning of the law, and thus be entitled to sue in the admiralty for his wages. " With respect to the surgeon's claim, (he observed,) that, I think, stands upon a much more doubtful foundation. I am not myself aware of any case in which a surgeon has been permitted to sue for wages in the admiralty court, nor have the counsel been able to bring any such case to my notice. The absence of all cases of this kind is certainly a strong circumstance to show that the court possesses no such jurisdiction. A carpenter, it is said, has been per- mitted to sue in the admiralty for his wages, and it has been asked, why the same privilege should not be extended to a surgeon 1 But, it must be recol- lected, that a ship's carpenter frequently acts in the capacity of a mariner also, which, I presume, a surgeon is not expected to do. The claim, there- fore, of the surgeon does not rest on the same foundation as that of the car- penter, who is also regarded in the light of a mariner ; and this distinction may possibly take the claim on the part of the surgeon out of the limits of the jurisdiction assigned to this court by the courts of common law." Vide reporter's note to this case ; also, Mills v. Long, Sayer's Rep. 13G. But in this country, notwithstanding the case of The Ship New Jersey, 1 Peters, Adm. R. 233, where it was assumed that the ship's physician had no lien on the ship, it is, I presume, to be considered as settled, that a surgeon employed on board a ship is a mariner in the sense of our law. By attending to the health of the crew and ministering to them when sick, he performs an office of direct importance to the navigation and preservation of the vessel. And the same is true, in their respective capacities, of the carpenter, cook, and steward. The Superior, Gilpin's Rep. 516 ; The Farmer, Id. 534. 2 The Farmer, Gilpin's Rep. 534. en. XI.] OF THE mariner's contract. 355 time law, the services which he renders oiust pertain to the business of navigation. It is not enough that the service performed or to be performed is on the high sea, or on tide water ; it must in its subject-matter be maritime ; it mubt have some relation to trade and commerce ; some connection with a vessel employed in trade, with her eciuipment, her preservation, or the preservation of her crew.' "§> 140. Services performed by a female, in the capacity of cook and steward, and keeper of the ship and her stores, in harbor or dock, entitles her to recover wages therefor, as a mariner.- And we presume the same result would tollow from the performance of any other services on board, which from their nature would be deemed maritime services. This certainly would be the case, considering the question upon general principles. Courts of admiralty, however, in the observance of a wise policy, might be disposed to look with disfavor upon the practice of employing females on board our ships, and of regarding them in the light of mariners. <§, 441. Seamen are usually employed for a certain sum por 1 The Farmer, Gilpin's Rep. 531; Conkling's U. S. Adm. 7-J. 2 The Jane and Matilda, 1 Ilagg. Adm. II. 1B8. Whilbi Lord Sunvcll, in the case we liave here cited, as containing the doctrine laid down in iho text, asserted the legal power of a female sailor to earn wages in that capa- city, heobseivcd.at the same time, tlw.t it was a claim which he had no par- ticular wish to encourage. He thougl.t the practice of employing fomalos on board ships might lead to a good deal of moral disorder, thai it mij-ht be too likely to convert ships into places of irregular indulgence, and that there mi-ht be occasion to fear that the lawful commands ol tho maMcr would no°l be the o.ily commands to which a ready obedience would bo j-iven. But whilst his lordship was not disposed to encourage any general praclicaof this kind, he said he could not blind himself to the facts ..f the particular case before hii'n. The female had actually and properly performed liio bor^ico belonging to the employments which we have specified. Sho had done no at Ihe request of the captain, and without objection from the owners, and had thus saved to the ship and her owners the expeuho of another cok and steward. Upon these facts, Lord Stowell held, a..d very properly held, that she was justly entitled to the payment of the wages ordinarily duo for auch services as she rendered. 356 MARITIME LAW. [CH. XI. month, or for a fixed sum for the voyage. In the fishing trade, however, the general usage is to admit them to share the profits of the adventure, in lieu of wages. This prac- tice does not operate to make the seamen partners with the owners, in the produce of the voyage. Their share of the profits is deemed by the law to be in the nature of wages, unliquidated at the time, but capable of being reduced to a certainty on the sale of the cargo. ^ As a seaman's contract, therefore, to share in the profits of the voyage, is not con- sidered a partnership, he may maintain an action of assump- sit therefor at common law, or a libel may be brought in the admiralty for his proportion of the proceeds of the adventure, to be ascertained by a final settlement of the voyage.^ 1 Abbott on Shipping, p. 714 ; Wilkinson v. Frazer, 4 Esp. R. 182. In the case of Baxter v. Rodman, 3 Pick. R. 435, the Supreme Court of Massachusetts decided conformably to the doctrine stated in the text, that the master and crew who engage in a whaling vovage, and are to receive their pay out of the proceeds of the oil, are not joint owners and quasi partners with the owners of the ship, and need not be joined in an action brought by the owners to recover of a third person a part of such oil. " The owners of the vessel and projectors of the voyage," said Parker, C. J., in delivering the opinion of the court, " are the owners of the product of the voyage. The true meaning of the shipping contract is, that the men shall be paid out of the proceeds in a stipulated proportion. It is an agree- ment as to the mode of compensation, and gives them no property in the oil, but only regulates the amount of compensation. This, we think, is the true construction, and in this we are supported by the cases cited." Vide also The Frederick, 5 Rob. Adm. R. 14. By the act of Congress of June 19, 1813, the jurisdiction of the admiralty courts is extended to the cognizance of suits for shares in whaling voyages, the same as for the wages of seamen or mariners in the merchant service. See chap. ii. ^^ 1,2. 2 IMacomber v. Thompson, 1 Sumner's Rep. 384 ; Wilkinson v. Frazer, 4 Esp. 182 ; The Crusader, Ware's Rep. 437. In this latter case, the master had chartered the vessel of the owners, to employ her on shares. The libellant went in the vessel as mate. He went under a contract to share equally with the master the profits and loss of the adventure. Judge Ware held, that the allegation of partnership was not sustained by proof of such a contract unattended by other circumstances, and without proof of what the share was to be. He doubted, if the contract was to be considered as consti- tuting a partnership, whether the admiralty would have jurisdiction of it. CH. XI.] OF THE mariner's CONTRACT. 857 »§. 442. In the whaling business, ahhongh there is no posi- tive law requiring it to be done, it is still the usage to reduce the mariner's contract to writing. But in all voyages from any port of the United States to any foreign port, and in all coasting voyages from one State to any other than an adjoin- ing State, the master, before proceeding on such voyage, is required, by act of Congress, ^ to make an agreement in wril- " If the contract between the parties," he observed, " wore in truth a con- tract of partnership, it is not easily to be perceived how it can bo brotifjht within the cognizance of tlie admiralty. For though the admiralty has a general jurisdiction over maritime contracts and matters done on the sta, it does not follow that it has jurisJifiion over all contracts leading to maritime adventures and to employment on the high seas. If two persons engage as partners in maritime commerce, the contracts which they make with others for marine service, and other contracts in which the consideration is essen- tially maritime, as contracts of atTreightmenl, or contracts with material-men, for the supplies or repair of the vessel, fall within the jurisdiction of the admiralty. But the contract of partnership between themselves, thougii it may exclusively have for its object maritime commerce, belongs ordinarily, at least, to another forum." I Act of July, 20th, 1790, ch. 56, sec. 1. A whaling or fishing voyage is not deemed to be "a foreign voyage " within the meaning of the various acts of Congress, using that phrase. " A foreign voyage " means, in the language of trade and commerce, a voyage to some port or place within iho territory of a foreign nation. But the ocean is deemed the common high- way of all nations, lind foreign to none. It is in no just sense wiihin any foreign jurisdiction. Taber i-. United Stales, 1 Story's Rep. I, 7. The act of July 29, 1813, ch. 35, provides 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, hound from a port of the United States, to be employed in any such fishery at sea, shall, before pro- ceeding 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 addition to such terms of »bipmcnl as may be agreed on, shall in such agrcem.-nt express whether the »:uno is to continue for one voyage or the fishing season, and shall also cxprcw that the fish or the proceeds of such fishing voyage or voyages, which n to the fishermen, shall be divided among them in proportion to the . ^ or number of said fish, which ti,ey may respectively have cauRlit ; and the agreement to be countersigned by the owner or his agent, li.hcrmon .•...- pWed in the fisheries are liable to the like penalties fi.r desertion, and to In, apprehended and detained for such desertion, as seamen m the merchant -c-r- vice. Ibid. 358 MARITIME LAW. [CH. XI. ing or print, with every seaman or mariner on board, (except such as shall be apprentice or servant to himself or his owners,) declaring the voyage or voyages, term or terms of time, for which such seaman or mariner shall be shipped. If this is not done, he forfeits twenty dollars for every such seaman or mariner, and 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, and such sea- man or mariner not having signed such contract shall not be bound by the regulations, nor subject to the penalties and forfeitures contained in the act. And by the act of Congress of July 20th, 1840,1 it is declared, that all shipments made contrary to the provisions of that act 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 at his shipment. <§, 443. The act of 1790,2 it will be observed, requires " the voyage or voyages, term or terras of time, for which every seaman or mariner on board shall be shipped " to be declared in the shipping-articles. To comply with this enactment, it is necessary, that in the description of the voyage, the terminus a quo, and the terminus ad quern, should be clearly specified. Hence a voyage described as from one port to another, " and elsewhere," means a voyage from and to the specified ports. The terms " and elsewhere," are construed as subordinate to the voyage specified, and only authorize the pursuing such a course as may be neces- sary to accomplish the principal voyage.^ It may not, per- 1 Chap. 23, sec. 10. 2 July 20lh, 1790, ch. 56, sec. 1. 3 1 Hall's Law Journal, 209. By the act of 2 Geo. 2, c. 36, made per- petual by 2 Geo. 3, ch. 31, sec. 1, it appears that the shipping-articles must Is SB CH. XI.] OF THE mariner's CONTRACT. o'.O haps, be essential to the validity of shipping-articles, that there should be an insertion of the name o( every juut to " express the voyage fur wliich ihe seamen or mariners are ehippcd." In (he case of The Minerva, I Haijg. A»lm. Rep. 317, ihe voyage was di-srrthcd in the shipping-articles, as a voyajie from Ltmdoii to Ntw South Walfs and India, and to return to a port in Eurtipe. In the maryin tlicte was adiUd in a way hardly legible, and without any reference as to wlicre these wonls were to come in, " or elsewhere." It was extremely pn.hahle. frnm the evidence, that the words "or elsewhere " were interpolaicd by the captain afier the contract was signed. Upon the arrival of the ship at Port Jackson, the captain, for the first time, made known to the crew his intention ff pro- ceeding to distant ports, not specified, as they supposed, in the .shippinj con- tract. When these words, '• or elsewhere,"' weic read to them, there wsa a general expression of surprise and discontent, and an express com|>laint made by them. Rut tlie captain threatened them, and insisted that he had the right to carry them, and would carry them wherever he pleased. " oven to hell iiseir," " which," observed Lord Stowell, " was a very favoriic place of consignment," in the judgment of the captain, who was " certainly a per- son of lofty prerogative notions." Accordingly, in spite of the remonstrances of the crew, the captain proceeded from Port Jackson to New Zealand, (" where not a man ventures to land for fear of being made a meal's meat of by the cannibal inhabitants,') thence to Valparaiso, thence to Lima, ihence to Otaheite, thence back to Sidney Cove, and thence to Calcuiia, where he ought to have proceeded originally. Here, whilst engaged in taking on h.-a.d a carcro for England, the crew, without any apparent necessity, were cmph.ycd on two successive Sundays. On the third Sunday, after working six hours in the morning, they were refused the usual indulgence of going on *hure. and were informed that ihey must go to work dun.,g the aliernoon, to Mow the cargo more completely, which they had put into the hold during .he six hours of the morning. Upon this refusal of the captain, who him.elf immediately afterwar.ls proceeded to the shore, the crew loliowed l.is exam- ple When li.ey returned to the ship, they were refused admission by the captain Upon repairin-r to the shore, they were committed by the n.agis. trates to the house <.f correction for twenty five days. " iho mag.M.ntcs aciin-T upon the same principle of law as lluil which prevails at Sydney ( ore _il,L where a seaman quits a .hip, he is only to make hts elecl.on b.-twwn the ship and the house of correction," and this " whether ho .,u,.. 1... -.hip for a just cause or none at all, -that is never Bubjecl ol in.,uuy Iho captain en-^aged anoth.-r crew, an.l these mariners, ader a month . inlcrttl. clurncd in another ship .« England. The conduct ol .h« seamen .n ro- fusin. to work, an 444. Where, by the shipping contract, the master is left at liberty to use his discretion as to the intermediate course of the voyage, he may carry the vessel to a port not named, without thereby violating the contract. Thus, in the case of The Nimrod,! the shipping-articles described the voyage to be " from New York to Darien, thence to St. Thomas, thence to New Orleans," "or as the master may direct," and back to New York. The brig sailed from New York, pro- ceeded to Darien, went from thence to St. Thomas, thence to Maracaibo, and from Maracaibo sailed for Piiiladelphia, not going at all to New Orleans. Upon the arrival of the vessel at Philadelphia, several of the seamen left her, alleging that their contract was broken by the master carrying them to that port. They then commenced a suit in the admiralty for their wages, up to the time of their arrival in Phila- delphia. Their claim was resisted by the owners of the brig upon the ground that, by deserting the vessel before the termination of the voyage, they had severally forfeited their wages. It was held, to be no violation of the master's contract with the seamen to stop at a port not named, and afforded no justification to them for leaving the vessel. <§> 445. Where shipping-articles describe the voyage to be " from Philadelphia to Gibraltar, other ports in 1-iUrope, or South America, and back to Piiiladelphia,'" th(>y are con- strued to authorize a voyage directly from (Jibnillar to South America, without proceeding to any intermediate liUropean port. But they do not authorize a subsequent return from and back to London." The deviation consisted in new eiijja^enu'nla of the vessel, and in going round by Prince of Wales Island, instead of proceed- ing directly to Calcutta, occasioning lliercby an elongation of dihtanco of about six hundred miles, and an extension of lime of about a month. This deviation was held to entitle the crew to a dischargp, and upon tin- pround, that, by the law of England, ever) spontaneous deviation which is not con- nected in any manner with the general object of tho voyage, as growing out of accident or overruling authority, exonerates the mariner from further service under his contract. 1 1 Gilpin's R. 83. MAU. 31 362 MARITIME LAW. [CH. XI. thence to a European port. The master mu^ proceed to the different ports or countries in the order in which they stand in the contract, without returning to any of them.i <§. 446. In the case of The Ship Moss,^ the voyage de- scribed in the shipping-articles was, " from Philadelphia to South America, or any other port or ports, backwards and forwards, when and where required, and back to Philadelphia, unless sooner discharged." The captain took the ship to Buenos Ayres ; he then went to Havana, and from thence to Marseilles ; he returned to a port in South America, and then terminated the voyage by returning to Philadelphia. It was held, that this voyage, or these voyages, were strictly within the terms of the contract, and did not justify the seamen in leaving the vessel. The decision in this case, we cannot but think, is founded upon a too liberal construction of the act of Congress. The act requires that the voyage or voyages, term or terms of time, for which every seaman is shipped, shall be declared by some agreement in writing or print. It is admitted, that the words " and elsewhere," in shipping-articles, do not satisfy this provision of the law, and that they are either construed as subservient to the principal voyage, or rejected altogether for uncertainty. Now it is very difficult to perceive any material difference, upon the ground of uncertainty, between the words " and elsewhere," and the words " or any other port or ports, backwards and forwards, when and where required," unless, indeed, the latter words are of wider latitude, and authorize a wider departure from the track of the original voyage. And it is by no means apparent, even admitting that the language is not void for uncertainty, that the voyage to Marseilles was either subor- dinate to the voyage described in the articles, or even con- sistent with it. The principal voyage is described, and in adequate terms. The commencement and termination are 1 Douglass V. Eyre, 1 Gilp. R. 147. 2 1 GUp. R. 219 CH. XI.] OF THE mariner's C0NTR.\CT. 303 both fixed. 'But the intermediate voyages, it seems to us, are not described. The language employed is indelinite, and does not, in any proper sense, constitute a description of a voyage or of voyages. It is rather "an unlimited descrip- tion of the navigable globe, indefinite both in space and time.'"' >§. 447. It is observable that the act of Congress,* to which reference has been made, requires the master to make aa agreement in writing or print with every seaman or mariner on board his ship, (except 6cc.) declaring the voyage or voyages, term or terms of time, for which such seaman or mariner shall be shipped. But the act requires this to be done, only when the ship or vessel is bound I'rom a port of the United States to any foreign port, or when of the burden of fifty tons or upwards, and is bound from a port in one State to a port in any other than an adjoining State. It accordingly has been held, that the act only contemplates voyages from the United States, and the case of seamen engaged in a foreign port is not within its purvicw.- «§, 448. The mariner's contract is an ancient instrument, necessary to describe the engagement of the contracting parties, with respect to only two particular obligations which they have contracted, and which alone were necessary to be contracted for. One of them to be stipulated on the part of the ship-owner — a description of the intended voyage ; and the other on the part of the seaman — engaging for the rate of wages which he was content to accept for liis services on that voyage.^^ Other mutual obligations, created by the 1 Act of 1790, ch. 56. sec. 1. 2 The Ship New Jersey, 1 Peters. A.hn. Decis. 223. V.Je alno. Tho Cru. sader, Ware's Rep. 487, as to coasiii.g vuyagcs. 3 The Minerva, 1 Ilagg. Adrn. Uep. 347, 353. " The manner « contract thus constituted." said Lord Stowell, in the case here -'«••'.'*-" "J" and intelligible, and as sueh well suited to the huml.lo capaC.e. a ul attam- men f one s t of the contracting parties; U notified and recorded the two 364 MARITIME LAW. [CH. XI. general maritime law, and not dependent upon 'the contract, were formerly omitted in the instrument, but are now usually inserted. ' <§, 449. With one or two exceptions, the mariner's contract, does not differ from any other contract for hire and service. These exceptions are not created by the contract itself, but are consequent upon it. They are the offspring of the gene- ral maritime law, and the positive law of several countries. One of these exceptions, distinguishing the mariner's contract, from contracts of service upon land is, that the seaman who fails to render himself on board, according to his agreement, can be pursued, and arrested wherever he is found, and con- strained to complete his engagement. If he abandons the vessel, he may be apprehended upon a warrant, be impri- soned and forcibly compelled to perform his stipulated service. Another exception, peculiar to this form of service is, that important particulars, which could only be known by communication and agreement. Other reciprocal duties of the two parlies to each other did not depend on contract, but on the general law which notified and enforced them. The mariner, by his engagement to act as a seaman during the voyage, being bound to the performance of all the duties which the law enforced on him, and his employer being bound to pay the recorded wages, and to find proper sustenance during that same voyage, and all other usual and necessary ac- commodations. These and other mutual duties were not created by contract, but are obligations created by the general law. In the year 1729, the con- tract fell under the notice of the legislature, and an act passed,* enforcing, in all cases, the execution of such contract, and it is very observable, that in that act, the only particulars described as necessary constituents to be stated therein are the two that I have mentioned — the extent of the voyage and the rate of wages to be paid during its continuance. There followed, usually, in these contracts, a sort of description of the general duties of a mariner, not at all described or noticed in the act, which imposes no new obligations, but only recognizes some of the known duties imposed by the law ; and content- ing itself with that, if it does no good, it at least does no harm, beyond the payment of a small fee to the scrivener or printer, for this unnecessary en- largement of the instrument." * 2 Geo. 2, eh. 36, made perpetual by 2 Geo. 3, ch. 31, sec 1. The act of Con- gress of July 20, 1790, ch. 29, is correspondent to the English act. CH. XI.] OF THE mariner's CONTRACT. 365 the master may compel an obedience to his orders by mode- rate and reasonable chastisenieiU on the spot, of a rehictant or disobedient seaman, although he be a freeman of full age.» By the positive institutions of several countries, seamen are bound to assist, at the risk of their lives, in defendujg the ship against pirates, and a refusal to fight is punished crirai- nally.2 ^ 450. The act of 1790, and the subsequent acts amenda- tory of it, do not repeal the general maritime law in cases which are not within their purview. Indeed, they do little more than reenact several of the old maritime rules, applying a particular rule in poinam in certain specified cases.^ Hence, an unarticled seaman, not being within the act, is subject to , all the forfeitures imposed by the maritime law, and to all its established rules. The act of ISlO, however, declares that " 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 slap- ped for the voyage, or the sum agreed to be given him at his shipment." Under the act of 1790, the seaman who shipped by parol, being subjected to the rules ol the general lau . mcurred a forfeiture of his wages by deserting the ship. But the act of 1840 authorizes the seaman to leave the ser- vice at any time. His leaving does not constitute -desertion and he may demand the highest rate of wages pa>d to any seaman shipped for the voyage or the sum agreed to ^ given him at his shipment. U.ider the act of l^^*^. a^''' ment by parol subjected the master to cerlam penalties, but 1 Turner's Case, Ware's Rep. 83 ; Act U. S. mU July. 17U0. «cc. : . Curtis'8 Merchant Seamen 1-2 ^^^ o. sec. 7 art. 2 Abbott on bh.,,..ng, ^ ' • If ' !'''^.'' j'^^.^ „,• ,^, ifannc Town., art. 9; Consulate of tb« Sea, cli. 172, 1-8, l.aws 35,30. Ai. p ..i-.- Cloutinan ». 'I'uiiiiion, I Sumu. 3 Tlie llegulus, 1 PcterB, Adi... K. -U, ^iuu"n-» R 380 • The Crusader, Ware's ilep. 417. 31* 366 MARITIME LAW. [CH. XL did not authorize the seaman to leave the service. Under the act of 1840, a shipment by parol is void, and attended with this consequence, that the seaman may leave the ser- vice at any time without a forfeiture of his wages. We apprehend that this is the only consequence that legally follows. If a seaman ships in pursuance of a verbal contract, so long as he remains on board, he is subjected to all the rules of the marine law, and may, by misconduct, incur all the forfeitures denounced by that law, with this exception, that he may at any time leave the vessel without being deemed a deserter. *§> 451. It is not uncommon for seamen to be shipped by the owner before the master is appointed, and the seamen sign the paper, with a blank left for the name of the master. When this is done, it is understood that the seamen consent to perform the voyage under any master the owner shall appoint, and that the blank be filled with the name of such master, when appointed. When the master is appointed, and signs the shipping-paper, the blank being filled with his name, it is an engagement on his part to consider the crew already shipped as his crew, and he becomes liable to them on the contract, in the same manner and upon the same terms and conditions as if he had in fact been the master when the seamen were shipped. ^ <§> 452. The shipping contract is not dissolved by the substitution of a new master, in consequence of the sickness, death, or dismissal of the first master during the voyage. The vessel, the owners, and the new captain are liable to the claim of the seamen for their wages, and as contracts are mutual the seamen are also bound. ^ The threefold secu- rity of the mariner for his wages, given to him by the wise I Mayo V. Harding, 6 Mass. R. 300. ~ Ship Alalanta, Bee's Rep. 48 ; United States v. Hamilton, 1 Mason, R. 443. CH. XI.] OP THE MARIXER's CONTRACT. 307 and just policy of the maritme law, is in no way impaired by a change of master. That security remains, and lie may enforce his remedy, first, against the ship, secondly, against the master, third/ 1/, against tlie owner. <§> 453. The shipping-articles contain the evidence of the mariner's contract, and are suliicient proof of the actual shipment, and of the terms and rate of wages upon which the seamen are engaged. It is very observable that the vari- ous acts of Congress do not require the contract of the master with the owners to be in writing. Hut the shipping- articles, usually, if not invariably, contain the contract of the master in respect to wages and the voyage, as much as of the seamen ; and the terms of hire of the master and iiis apprentice, when found there, must be presumed to be sanc- tioned by the owner. But the articles, although prima facie presumed to import verity, are not absolutely conclusive. They are open to evidence of fraud, mistake, or interpola- tion. ^ <§. 454. When the articles contain the whole contract, the terms of it cannot be varied by evidence of a parol agreement. Hence, if they specify the wages of the master of a vessel, he cannot give parol evidence of an agreement to allow him other compensation.^ But where the contract is left imper- feet in the articles, then it is open to both parties to supply the deficiency by parol evidence. If the rate of wages is omitted, it is competent for either party to show what the contract was in relation to wages. If no rate of wages was agreed upon, a quaniinii meruit will be sustained.'' ^ 455. Unusual stipulations introduced into the shipping 1 Willard V. Dorr, :{ Mahoii, K. Kil ; The Ihubella, 'J Hnh. A.lm I!. -•11 . Baker «. Corey, Hi Pick. I'J''. 2 Veacock v. M'Call, 1 Gilpin, R. 32U. ^ 3 Wickhamt'. Biiehl, 1 Gili.in, Kt'i.. 4W ; I'orcuimie. 1 ll.>;,'u' U. 3*H; Harvey, 2 Id. 7'J ; I'riiicc George, :i lla^g. 370. 368 MARITIME LAW. [CH. XL contract are not, on that account, absolutely rejected by courts of admiralty as void. But they are looked into with rigid scrutiny, and if it appears, upon examination, that 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 interpretation 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 order to uphold stipulations in shipping-articles, which derogate from the general rights and privileges of seamen, it must be shown that both their nature and operation were fully explained to the seamen, and that an additional compensa- tion was allowed entirely adequate to the new restrictions imposed thereby. And the onus probandi is on the ship- owner to establish these facts. i But any stipulation in con- travention of the policy of a statute is void ; such, for instance, as the stipulation that the seamen shall pay for the expenses of their sickness, even if there be no medicine- chest on board, as required by the act of Congress.^ The ground upon which courts of admiralty proceed in these cases is, that the general characteristics of seamen are such, that they are as much entitled to the protection of the law against their own imprudence, credulousness, and thought- lessness, as wards, or cestuis que trust, against contracts entered into with their guardians or trustees. <§> 456. A seaman who has signed the shipping-articles, or who has engaged verbally to serve on board a ship, has thereby bound himself to use his utmost exertions in the service of the ship. If, therefore, under a threat of deser- tion, he should obtain from the master a promise of higher 1 Hardea v. Gordon, 2 Masoa's Rep. 541 ; Brown v. Lull, 2 Sumner, R. 443. 2 Harden v. Gordon, 2 Mason's Rep. 541. CH. XI.] OF TILE mariner's CONTRACT. -• wages, such promise would be absolutely void. Or, if in a time of peril, he should demand, for the extraordinary exer- tions he were required to perform, an extra sum, any agree- ment of the master to pay such extra sum would be utterly null. And the same result would follow, if the master, when the ship was in distress, should voluntarily otVor additional pay to a mariner, as an inducement to extraordinary exertion on his part. To hold the master bound by an agrccmcnl of that character would be in direct contravention of the wisest policy. For " if sailors were in all events to have their wages, and in times of danger entitled to insist on an extra charge on such a promise as this, they would, in many cases, suffer a ship to sink, unless the captain would pay any extravagant demand they might think proper to make." ' Not only would it be against a sound and wise policy, but in direct opposition to an established principle of law, namely, that a want of consideration renders an agreement void. That was the ground upon which Lord Ellenborough put his decision in the case of Stilk v. Myrick.^ Two of the crew, in the course of the voyage, deserted, and tlie captain having in vain attempted to supply their places at Cronstadt, there entered into an agreement with the other seamen, that they should have the wages of the two deserters, to be etpially divided between them, if he could not procure two other hands at Gottenburg. This was found impossible ; and the ship was worked to London, from whence she sailed, by the plaintiff and eight more of the original crew, with whom the agreement had been made at Cronstadt. It was attenipted to distinguish this case from Harris v. Watson, from the circum- stance that the agreement was made on shore, when iliero was no danger or pressing emergency, and when the captain could not be supposed to be under any constraint or nppre- 1 Lord Kenyon. in ll.rris r. Walton, Peak'. N. V. C. 103 ; Ilar.lcll V. Wyman, 14 Johns. Rep. iJGO; Meaner v. Suffolk Hank. 1 A 2 Uw l 471. When a seamen is shipped for the voyage, but is disabled from proceeding, he is not entitled to full wages, but a reasonable sum for services actually rendered.- If a mariner contracts for a particular service or duty on board a vessel, and it turns out that he has not the capacity to fulfil his engagement, or from want of knowledge, or liealth, or fidelity, he imperfectly performs it, the master may, in the one case, deny wages altogether, and in the other, make a reasonable deduction according to the circumstances. And where, from want of capacity or fidelity, the mariner is dis- qualified for the service he lias stipulated to perform, the master will be justified in putting him upon a diU'erent duty.'-^ ^ 472. If a seaman is wrongfully discharged during a voyage, he is entitled to a compensation for the injury ac- cording to the circumstances of his own particular case. This is ordinarily measured by the loss of time and the expenses of his return to the country where he was originally shipped. In some cases, wages have been allowed up to the prosper- ous termination of the voyage, and in others, up to the time of the seaman's return to the country where he was origin- 1 The Brig Elizabeth, 1 Peters's Adm. R. 128 ; Tlio Hope, Id. 13^. •2 Ex parte, Giddings, 2 Gallis. R. 50. 3 Sherwood v. M'lntosh, Ware's Rep. 109 ; Alkyns r. Uurroughs, I Peters's Adm. R. 217 ; Mitchell v. Orozimbo. 1 Peters's Adm. H. '2M. Tho doctrine of the text might not bo applicable to a case, where tho m;iMcr, before engaging the services of a mariner for a particular duly, wa» aware of the stale of'hi.'ThcaUh, and the de-rco of Imh knowh-dt{e. In thai ra..., ho must auribute to his own folly, the imperfect service ho receive.. Havinji engaged the mariner for a duty which he knew ho wa- incapable ..1 lully performinrr, he must be content wilh such service as ho is able lo r....kr. 32* 378 MARITIME LAW. [CH. XII. ally shipped, without reference to the termination of the voyage. If the seaman has obtained employment in the mean time, his earnings are deducted, not from his wages, but from the expenses of his return.^ If, in addition to the wrongful discharge, the master detains the seaman's clothing, 1 Emerson v. Howland, 1 IMason's Rep. 45; Hutchinson v. Coombs, Ware's Rep. 65. Vide also Tlie Gloucester, 2 Peters's Adm. Rep. 403; 2 Ball. 36; The Polly, Id. 420; The St. Oloff, Id. 428; Ward u. Ames, 9 Johns. R. 138 ; The Beaver, 3 Rob. 92 ; The Ship Exeter, 2 Rob. Adm. Rep. 261 ; Brooks v. Door, 2 Mass. 39 ; The Nimrod, Ware's Rep. 9. It is laid down in Abbott on Shipping, (p. 733,) as the law of England, that if a seaman is wrongfully discharged during a voyage, he will be enti- tled to his full wages up to the prosperous termination of the voyage, deducting, if the case require it, such sum as he may, in the meantime, have earned in another vessel. Mr. Justice Story, in the case of Emerson v. Howland, 1 Mason, 45, in commenting upon this text, observes, that " cases may occur, in which the wages for the whole voyage may be a very inade- quate compensation ; as, for instance, when the seaman is dismissed in a remote part of the world, and has no opportunity to return until long after the voyage is completed. On the other hand, if the voyage be a long one, and the seaman is dismissed at an intermediate port early in the voyage, and he immediately returns home, wages for the subsequent portion of the voyage, after his return, would be too great a compensation. In the one case, the payment would exceed, and in the other, fall short of the damages sustained by a breach of the contract ; whereas, by the general principles of the mari- time, as well as the common law, it ought, in both cases, to be equal to the real loss and injury to the party. By the rule of the civil law, if the party be prevented, without his default, from performing full services, he is still entitled to the stipulated hire for the whole period for which he contracted to serve. Domat, Civil Law, p. 107. This rule is followed in the maritime codes of foreign nations. By the laws of Wisbury, art. 3d, a mariner unlawfully dismissed during the voyage, is entitled to full wages up to the termination of the voyage ; and in addition to this, the Hanseatic and French ordinances allow him the expenses of returning to the country of his depart- ure. And a similar rule seems applied when the vessel is sold in a foreign country, by the Consolato del Mare, ch. 148. There is much good sense and equity in these regulations ; and perhaps, if the point were entirely new, it might not be unfit to incorporate them into our maritime code. But our law seems to have adopted a different course. It gives the party compensa- tion for the injury which he has sustained according to the circumstances of each particular case." en. XII.] EAEXIXG AND TAYilEXT OF ^VAOES. 379 he may recover the vaUie of it in the common libel for his wages. ^ «§) 473. Ill a case of semi naufrih^ium, or misforiuuc-, where the vessel has been so injured, that it is doubtful whether she could be repaired ; or, at all events, must wail a long time in a foreign port to undergo repairs, the master is not bound to keep the crew, but may dismiss them upon proper conditions, namely, the payment of their passage Rome, and wages up to the time of their arrival.- ^^ 474. Where seamen are, with their own consent, dis- charged abroad, or the ship is sold abroad, they are not only entitled to their wages up to that time, but the act of Con- gress, of 1803,3 provides that three months additional pay shall'be allowed, two thirds of which are to be given by the consul of the United States to the seaman, and the other third is to be retained by the consul as a fund to aid sick and distressed seamen. In the case of The Dawn,^ it was sa.d that this statute intended to provide for the case of a disso- lution of the contract by the voluntary act of the owners or 1 Hutchinson v. Coombs, Ware's Rep. 65. 2 The Elizabeth, 2 Dods. Adm. Uep. 403. 3 28lh Feb. 1803, ch. 02. The act provides, " That, ^vhcnevcr ..ny .h.p or vessel belo ging to a citizen of the U nitcd States shall be sold >n a forcgn oLtry and her company discharged, or when any seaman or mar.ncr. a cSn of the United States, shall, with h.s own consent, be dischar^od .n a ^X country, it shall be the duty of the n.aster to produce to tl.e co„m Ac the list of his ship's company, and pay to such consul, &c . for e. ry f„ .,e purpose of --»;^^;' /^ ;: ^^1:^ .., I, u 'ac..,o„. .. 380 MARITIME LAW. [CH. XII. of the master, their agent in a foreign country ; in the first place by the sale of the vessel, by which the voyage is broken up and terminated, and in the second, by the dis- charge of the seamen by the voluntary act of the master, with the consent of the seamen. It was not the intention of the act to comprehend cases of a forced and necessary disso- lution of the contract, as by shipwreck, capture, seizure, and forfeiture of the vessel, without the fault of the master or owners, or by any fortuitous occurrence, against which hu- man foresight and power could not provide. A discharge of the seamen, to come within the meaning of the act, must be a discharge by the voluntary act of the master, and not a mere separation from the vessel by the unavoidable breaking up of the voyage by misfortune. The act is supposed to apply to cases where the original object of the voyage is a sale of the vessel in a foreign port. If, however, the vessel is sold in consequence of a disaster at sea, the owners will not be exempted from the payment of the extra wages, if the vessel could have been repaired at a reasonable expense and in a reasonable time, and the burden of proof, to show that she could not have been so repaired is upon the owners.^ <§. 475. Where the voyage is broken up by a sale of the vessel, or the seamen are discharged in the manner contem- plated by the act of 1803, and the master fails to pay over to the consul the extra wages, as directed by the act, the question arises, whether this additional sum can be recovered either from the master or owner of the vessel, in the courts of this country. It would certainly seem, from the language of the act, that no other payment or obligation to pay is recognized or created by it, than payment to the consul in the foreign port. The object proposed by the act is, the return of Ame- rican seaman to their country, and their maintenance when found destitute abroad. That object is to be accomplished by 1 The Dawn, Ware's Rep. 485 ; The Saratoga, 1 Gallis. R. 181 ; The Juniata, Gilpin's Rep. 193. CH. XII.] 4 EARXIXG AND PAYMENT OF WAGES. 391 the payment of ihe money into the hands of the consul. Such is the interpretation which Judije Ilopkinson, in the case of Pool V. Welsh, 1 was of opinion ought to be given to the statute. But he felt himself controlled by the opposite opinion of Judge Story, in the case of Emerson r. Howland.- The principle upon which Judge Story proceeded in this case and the subsequent case of Orne v. Townsend, was, that the act of 1SU3 gives the additional sum as wages, and therefore it is recoverable as such. He argues that the owner ought not to be in a better situation than if he iiad complied with the terms of the law, and that it is the duly of the court to see that the law is enforced. J' The additional month's wages will not," observed Judge "Story, in Orne v. Townsend, "be paid over to the mariner, but retained in the registry for the use of the United States, to be applied ac- co'rding to the regulations of the statute." By so doing, it has been suggested, the court makes itself a volunteer unau- thorized trustee of a public fund, without any legal direc- tion for the disposition of it.^ The construction put uj^on 1 1 Gilpin-s Rep. 193. Vide also Ogden r. Orr, 12 Johns. 1J3 2 1 Mason's R. 45. Vide also Townsend v. Orne, 1 Mason, .-il ; Iho Courtney, Edwards's Adm. Rep. 239. 3 Poo .. Welsh, 1 Gilpin's R. 193. Judge llopk.nson .n th. cu.c after statin, his own views, and the opposing views of Judge Story upoo 1 I ^ir-r^nrrnr " Thc SuDrcuic Court ol >cw iofk, in uiu«.»w eome deeper and t onger. 1 ^ ^^ j^^^,^j ,^ 382 MARITIME LAW. [CH. XIL. the act by Judge Story, is certainly open to much question ; and yet a failure of justice would be likely to ensue, if an opposite construction were adopted. <§> 476. Where a seaman voluntarily leaves the ship, with the consent and at the request of the master, to serve on board another ship armed as a convoy, he is entitled to his wages up to the arrival of the ship at her port of discharge, but not beyond that time, although he may be longer in pro- secuting his return. By going as a volunteer on board the convoy, he assumes the risk of a longer detention. ^ <§> 477. Where no provisions are provided on board, and no means furnished to support them on shore, the mariners are justified in leaving the ship. And if they tender them- selves ready to do duty upon condition of being supplied with money or provisions for their support, and are refused, they are entitled to their wages. ^ By the act of 1790,3 every vessel of one hundred and fifty tons burden or more, bound on a voyage across the Alantic, is required to have one hundred pounds of salted meat and one hundred pounds of bread for every person on board, independent of any other stores of live stock, which shall be put on board by the master or passengers, and in a like proportion for a longer or a shorter voyage ; and if not so provided, and the crew are put on short allowance, then each of the crew shall be enti- tled to one day's wages extra for every day they shall be kept on short allowance. However, when a vessel happens to be in a port where it is not in the power of the master to obtain citizen, in the list of the crew certified from the collector's office, under the act of 1796, ch. 36, sec. 4, if he is named as an American citizen on the master's list of the crew. 1 Wilson V. Bragdon, 10 Mass. R. 79. 2 Castilla, 1 Hagg. Adm. R. 59 ; Eliza, Id. 186 ; Sigard v. Roberts, 3 Esp. 71; The Cyrus, 2 Peters's Adm. R.411; The Happy Return, 1 Id, 255, note. 3 July 20, 1790, ch. 56, sec. 9. CH. Xn.] E-VRXING AXD PAYMENT T)F WAGES. 3S3 provisions of the amount and description directed by the law, other articles may be substitnted which are of equiva- lent value. This construction has been given to tlie act upon the reasonable presumption that the law does not intend to require of the master impossibilities. The courts, how- ever, will see that the substitutes oUered are a full equiva- lent, both in quantity and quality, for tiiat requirinl !>y the letter of the law.^ <^ 478. Cruel and oppressive treatment on the part of the master will justify a seaman in leaving the vessel, and thai act will not deprive him of his right to his wages. On the contrary, upon the general principles of the maritime law, lio will be entitled to receive them in full to the prosperous ter- mination of the voyage.- <§, 479. An embargo does not work a dissolution of the contract of affreightment. It has, therefore, been held, that 1 The Washington, 1 Peters's Adm. R. 219 ; The Mary, Ware'* Rep. 454. 2 Sherwood v. Mcintosh, Ware's Rep. 109; Thatcher r. Steele, Id. 91. In this latter case, Judge Ware examined, with his usual discrimination, tha question as to the nature and degree of cruelty which will justify a de»crtiun. "The marine law," he observed, "authorizes the master to correct the negligent or disorderly conduct of a mariner by moderate chastisement, and he does not seem, in this instance, to have exceeded those limits which the law allows and justifies. Much less can it be pretended, that there was such harshness and severity as would justify a seaman in abandoning the vessel. There may be cases of such extreme and persevering cruelty on the part of the master, as will justify him in deserting. Ihit it must bo a strong case. I am, as at present advised, far from being prcjiared to liuid, that a baiierjr, simply because it is excessive, will be a justification, even tiiuugh it Bhuulil pass very considerably beyond the limits of a moderate discretion. Ah a general rule, it seems to me that another ingredient should enter into iho case. The seaman, who proposes on this ground to justify a di-serlion, olniulJ not only exhibit proof of the injury, but a just and reasonable ground of apprehension that it would be causelessly repeated, cither by showing a. general disposition to cruelty, on the part of the master, oi the cxisicnco of some particular pique or malevolence towards him personally. 384 MARITIME LAW. [CH. XII. a seaman may recover wages during the time of an embargo, if the voyage be afterwards completed or a new voyage sub- stituted. ^ I am not aware of any decision upon the ques- tion whether the master is bound to continue the seamen in his employ whilst the embargo remains in force, or whether he is at liberty to discharge them. But would it be unreasonable to say, that the master, in the case of an em- bargo, the same as in a case of semi naufrdgium, might dismiss his crew, paying them for the services actually ren- dered ? The reasons that justify that procedure in the latter instance are equally forcible when applied to the former. The embargo may continue a long time — how long is un- known — during which great expense is entailed upon the owners to support the mariners. "Nothing," said Lord Stowell, in the case of The Elizabeth,- "can be more gene- rally or more peremptorily laid down, than that a master dis- charging a seaman wrongfully is answerable for the whole wages of the voyage of that ship ; but can such a rule ap- ply either in its terms or meaning to a case where, in conse- quence of an uncontrollable misfortune, for which no person was at all to blame, but which affects all parties, and on a grave and imperious necessity arising thereon, a crew is dis- charged in order to exonerate the owners from a most 1 Marshall v. Montgomery, 2 Dall. R. 170; Thompson v. Beale, 4 East, 546 ; Johnson v. Broderick, 4 East, 566. 2 2Dods. Adm.R. 403. Thefollowinglanguage, also employed in the case of The Elizabeth, is equally applicable to the views suggested in the text, as the quotation there made. " There may be cases of misfortune much short of this semi naufragium, which were not occasioned by default of either party ; but where it has arisen from vis major, the act of God, which neither party had in contemplation at the time of the contract, it seems hardly just that the whole of the inconvenience should fall upon one party, whilst a new and unexpected benefit is to arise from this common calamity — the benefit of living in ease and safety on shore at the expense of the other. This can hardly be the true rule applicable to such a case, under all possible circum- stances, that the seaman can insist upon staying with the ship, be the pros- pect of its return ever so distant, and the most just terms afforded for a return to his country. en. XII.] E-VRXIXG AND PAYMENT OF WACES. 3S5 oppressive burden ; care being taken, at the same time, that the seamen shall be protected from all injnrious loss ? Is it to be laid down, that in no such case the master iwssesses no such responsible discretion, and that he is bound to let tlial crew derive a most unjust profit from the misfortune of their employers ? I conceive not." These observations, it seems to us, apply in all their force, and perhaps with accumulated force, to the case of an embargo. The master finds the pro- posed voyage interrupted by an act of sovereign power, an interruption without limit, wholly indefinite, and resting in the discretion of the government whose edict occasioned it. We think the condition in which he is placed is a real and sufficient ground to justify his discharging the seaman. <§, 4S0. Where an embargo is applied to the ships of one nation in the ports of another, the master, as in any other case of uncontrollable misfortune occurring abroad, interrupt- ing the voyage for an indefinite length of time, should, it would seem, be entitled to discharge the seamen, and upon the same conditions as in a case of semi-naufra^num, namely, the payment of their passage home, and wages up to tho time when they reach their native country. It might, how- ever, be impossible for the seamen to leave the country. They might, as in the case of Thompson v. Ikale,> be taken out of the ship and imprisoned by direction of the sovereign of the country. Of course, in a case of that nature, there would be no pretence to say that the master could put an end to the contract. If the seamen, upon the removal of the restraint that was put upon them, rejoin the ship, and the voyage is performed, tiiey are entitled to their full wages. ^ 481 If a ship on her outward voyage is seized and carried into any port out of the course of her voyage, and .s MAR. 1 4 East, 510. 33 386 MARITIME LAW. [CH. XII. afterwards restored to the master, and arrives safely at her port of delivery, the seamen are entitled to receive their wages for the whole time of such detention, although the ship be lost on the return voyage. On the other hand, if a ship is detained in like manner on her homeward voyage, and is afterwards lost, the seamen lose their wages for the time of such detention, as well as for all the other time con- sumed on the homeward voyage.^ <§> 483. The capture of a neutral ship does not of itself ope- rate as a dissolution of the contract for mariners' wages. It only suspends it. If the ship is restored and performs 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 condemnation, then the contract is dissolved, and the sea- men are discharged from any further duty on board ; and they lose their wages, unless there is a subsequent restitu- tion of the property, or of its equivalent value, upon an ap- peal or by treaty with an allowance of freight, in which event their claim for wages revives. In the case of a restitu- tion in value, the proceeds represent the ship and freight, and are a substitute therefor. . If freight is decreed or allowed for the whole voyage, then the mariners are entitled to the full wages for the whole voyage ; for the decree for freight, in such a case, includes an allowance of the full wages, and consequently creates a trust or 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 ordina- rily entitled 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 1 Hooper v. Perley, 11 Mass. 545. CH. XII.] EARNING AND PAYMENT OF WAGES. 387 preserve and protect the property for the benefit of all con- cerned. This doctrine was laid down by Judge Story in the case of Brown v. Lull,^ and is sustained by the weight of authority. 1 2 Sumner, R. 113. See Bealc r. Thompson. 1 Fast, R. .MR ; The South Carolina, Bee's R. 173 ; Shepherd i-. Taylor, 5 Peters, H. 07-> ; Gi- rard v. Ware, 1 Peters, C. C. R. 11-3 ; Brooks t-. Door, 2 Mass. 39 ; Etnei^ son V. Howland, 1 Mason's R. 15 ; SpafTord v. Dodge, 11 Maas. 60. U wm formerly supposed that the mere act of capture dissolved, ipsofurJo, the man- ner's contract. It was said, in the case of Lemon v. "Walker, H Mass. 401. that, " upon the capture of a ship, the relation between the owners and the master and crew ceases." The same doctrine was adhered to by the same court in the subsequent case of Arfridson v. Ladd, 12 Mass. 173. But in th. f SpafTord v. Dodge, 14 Mass. CG, the court proceeded upon the i declared in an early case, (Brooks v. Door, 2 Mass. 39,) that the capture of* ship which was afterwards restored to the master, did not dissolve the con- tract for wa^es. The rule of English Law, upon this subject, is, doubtless, in accordance with the American doctrine.* The decisions, however arc fluctuating. The whole Court of King's Bench, in the case of Beale r. Thompson, 4 East, 546, held that a capture, if the ship is af restored by the capturing power, does not operate to stop the . ^^ ^ wa^es during the detention. See, also, to the same effect. PraU r. tuff. 4 Eas't, 43 ; Bergstrome v. Mills, 3 Esp. N. P. 30 On the other Ijand. Lord Stowell, (then Sir William Scott,) in the case of the Friends, 4 Rob. K. 116, said, that " nothing could be better settled, than that the act of capture defeats all rights and interests ;" and he held that; a seaman who had been taken out of the vessel, which was afterwards recaptured, coud not recover hu wa^es. " I am of opinion," he said, " that this interest, (the small portion earned prior to the capture, two days service, and that subject to saKn«.. ) toTsmall perhaps, to be the proper object of a litigation .s not legally eviTdn 'favor' of this individual, by a recapture, which m no degree ■pstored him to his connection with the vessel. W ere a vessel delivers her outward cargo, and i, captured on h homc^ ward voyage, and being carried into a port of the captor . eounlry .. lhe« onderanei' together with the return cargo, the seamen who remain on board untflThe condemnation, arc entitled to receive full wagc« for the .oyaffe. * Wc have seen elsewhere, (ante, pp. 330. .144, n:.l, «>«" *;^) j'";; " ' I capture discharges a seaman from hi. contnu.,, .o far .. to cnaMc l.« r^ ^ Xuent to the seizure, revive, the con.rnct . and if the vo,... U and freight earned, the wages are due. 88 MARITIME LAW. [CH. XII. <5> 483. As the act of capture does not operate as a dissolu- tion of the mariner's contract, it follows that the seamen have the right to remain by the ship and wait the event of the prize proceedings. " It is," said Judge Story, in the case of Brown v. Lull,^ " ordinarily the right, as well as the duty, of mariners, belonging to a neutral ship, after capture, to remain by the ship, while there is any hope of recovery of the property ; and this, generally, although not univer- sally, may be said to be gone, when there is a sentence of condemnation ; and a fortiori, when there is a sale thereof pending the proceedings, under the sentence of condemna- tion." It also follows, that if a mariner is taken out of the captured ship, and is unable, without any fault of his own, to rejoin her, he is entitled to his full wages for the voyage, if the vessel is afterwards released, recaptured, or ransomed, he paying his proportion of salvage and ransom money in the two last cases, and deducting also any wages he may have earned in the intermediate period.^ <§> 484. When a seaman is impressed, but afterwards escapes, and rejoins his ship and performs the voyage, or tenders himself as ready to reenter and perform his contract, but is refused, in either case he is entitled to his full wages. provided the capturing power, in fulfilment of treaty stipulations, pays to the government of the country to which the vessel belongs, a sum in satisfaction for seizures, detentions, condemnations, or confiscations of the vessels and other property of its citizens. And this, too, although the amount allowed to the owner, according to the mode of distribution pointed out in the treaty, is very disproportionate to the real value of the ship and cargo, and notwith- standing no notice whatever is taken of freight in the award. The presump- tion is, that the sum awarded includes freight ; and whether it is greater or less, and whether it is actually secured by the owner or not, makes no difference in the rights of the seamen. Pitman v. Hooper, 3 Sumner, 50, 2S6. 1 2 Sumner's Rep. 443. See, also, The Saratoga, 2 Gallis. R. 164. 2 Watson v. The Rose, 1 Peters's Adm. R. 132 ; Hart v. The Little John, 1 Id. 115 ; Howland v. The Lavinia, Id. 123 ; Singstrom v. The Haz- ard, 2 Id. 384, 446; Brooks v. Door, 2 Mass. 39 ; Wetmore v. Henshaw, 12 Johns. R. 324 ; Abbot, 738, note, and cases there cited. 389 CH. Xir.] EARNING AND PAYMENT OF WAlJES. If he never rejoins the ship, he is entitled to wages up to the time of the impressment. If he has an opportunity to rejoin her during the voyage, but does not, it has been decided that he is entitled to pro rata wages to the time when he might have rejoined the ship. But it is not readily perceived upon what grounds this decision can be satisfacto- rily placed. When the impressment is ellectcd, the services of the mariner cease. If he rejoins his ship, the contract, being an entire one, the temporary interruption is not regar'ded, and he entitles himself to his full wages for the vo'yage. But if he fails to reenter when he has the opportu- nity ,°his conduct is an abandonment of the contract. He can then claim wages, it seems to us, only for the services he actually rendered anterior to his separation from the vessel by the vis major. ^ 485. If the seaman, says Mr. Bell, in his valuable Com- mentaries on the Laws of Scotland,^ be hired by the voyage, and die during it, the standard books of maritime law seem to give the outward wages, if he dies during the outward voyage, and the whole, if he dies during the homeward voyage. But if he be hired by the month, it rather seems that wages will be due only to the time of his death. Our decisions all proceed upon the principle that when the mar^- ner dies during the voyage, his wages are due and paya^^^^^^^ up to the time of his death. That is conceded. But ^^ hcthcr the wages are due for the whole voyage, is a vexed question, upon which the authorities conllict. In --ra cases arising in the District Court of the United States, m PennsyUan.a, t was held that the representatives of a seaman dying during L voyage were entitled to full wages to the end of ho voyngi/ This doctrine met the concurrence of Judg wLhington, who sustained it upon the authority of the . th 1 Vol. i. 514. . » 1 w ii.>. ScoilP. Th« — ich, Id. 155; JackBon v. bims, Id. 1^« . •■'■ wich 33* 390 MARITIME LAW. [CH. XII. article of the Laws of Oleron, upon principle, and upon its analogy with the rule adopted in the case of a sick or disa- bled seaman, who is entitled to his full wages for the voyage, although he is totally disqualified from rendering any future service on the voyage. ^ <§> 486. On the other hand, the District Court of the United States, in South Carolina,^ and the District Court in Massa- chusetts,^ in cases arising subsequent to the decisions in Penn- sylvania, both held that wages were not due beyond the time of a seaman's death. The opinion of Judge Davis, in the case of Natterstrom v. The Hazard, is a very learned one. He examines the provisions of the foreign ordinances with singular acumen, and establishes, it seems to us, the following propositions. First. That by general principles of law on a contract of hire, no compensation can be claimed beyond the death of the party hired. Secondly. That the Laws of Oleron,^ of Wisbury,^ or of the Hanse Towns,^ do not provide that in case of the death of a seaman on a voyage, wages are recoverable beyond the time of his death. Thirdly. That the intent of those ancient ordinances, in the articles relied on in this case, was to determine the effect and operation of sickness or disability, incurred in the service of the ship during the voyage, and to provide for payment of wages, without deduction on that account, either to the seaman, if he recover his health, or to his heirs, in case of his death. Fourthly. That it does not appear, that in those countries where they are peculiarly authoritative, they have been used and applied as entitling the heirs to wages for any time subsequent to the death of a seaman. Fifthly. That approved commentators, such as Cleirac, and Valin do not establish the construction contended for by those who 1 Jackson v. Sims, 1 Wash. C. C. R. 414. 2 Carey v. The Kitty, Bee's Adm. R. 255. 3 Natterstrom v. The Hazard, Bee's Adro. R. 441. 4 Art. 7. 5 Art. 19. 6 Art. 45. CH. XII.] EARNING AXD PAYMENT OF WAGES. 391 maintain that wages are due for the whole voyage. Sixthly. That the Consolato del Mare,^ a work of approved authority, in case of an engagement by the month, and death on the voyage, expressly limits the wages, to be recovered by heirs, to the time of the death of the mariner. Serctithlij. That the law marine has not been otherwise understood and re- ceived in England, but in regard to an engagement by the month, and death on the voyage, appears to be consonant to the Consolato del Mare. Eighthly. That in Massachusetts, the usage has uniformly been to make payment of wages, in such cases only to the time of the death of the seaman, and the law has been considered as consonant to the prac- tice. On these considerations he held, and properly and legally held, it should seem, that a claim for wages by the legal representatives of a seaman, beyond the time of his death, when the engagement was by the month, is not sus- tainable.^ <§> 487. The payment of wages is ordinarily dependent upon the earning of freight. It is an ancient formulary of expression, that " Freight is the mother of wages." We have elsewhere ventured to express the opinion that this maxim is not founded on considerations of equity or sound policy.^ We are now to observe, that although it is recognized in our courts as an admitted rule of law, it is in practice subject to several very important exceptions ; so that it is by no means true, that if there be no freight, there can be no wages. If the freight is not earned in consciiuence of the acts of the owner or master, that circumstance docs not deprive the 1 Ch. 84, 85 ; 2 Pardessus, p. 152. 2 Vide Luscomb v. Prince, \2 Mass. 57fi, wliero it was aMumed to be the settled doctrine that wages were only payable up to iho time of iho death of a seaman. " There is no doubt," observed Parker, C. J., " that iho wtfos of seamen may bo apportioned. If ihry di.; durinp a voya-o, ihnr fcpro- sentatives arc to receive wlial is due at the tiino .)r ilinr 488. By the usage of merchants, seamen are entitled to their wages at every delivering port. Ordinarily, voyages are divided into the outward and homeward voyage, and the seamen's wages are due for the outward voyage when it is ended, and for the homeward voyage when that is ended. If 1 The Malta, 2 Hagg. Adm. R. 158. 2 Lady Durham, 3 Hagg. Adm. R. 196. 3 Pitman v. Hooper, 3 Sumner, R. 286 ; The Saratoga, 2 Gallison, 175; Wolf r. The Oder, 2 Peters, 261 ; Hoyt v. Wildfire, 3 Johns. 518; Emerson V. Howland, 1 Mason, R. 45 ; Giles v. The Cynthia, 1 Peters, Adm. R. 207; The Two Catherines, 2 Mason, 319 ; Blanchard v. Bucknam, 3 Greenl. R. 1. In this case, the right of the plaintiff to demand freight depended upon the completion of the entire voyage out and in. That was the condition of the charter-party. The vessel performed the outward passage, and was lost whilst lying at her outward port. It was held that the right of the seamen to their wages was not affected by the condition of the charter-party, unless they assented to it by express stipulations. The Juliana, 2 Dod. Adm. 501 ; Van Beuren v. Wilson, 9 Cowen, 158; Brown v. Lull, 2 Sumner's Rep. 443. 4 Pitman v. Hooper, 3 Sumner's Rep. 286. CH. XII.] EARNING AND PAYMENT OF WAGES. 393 the ship is lost on her homeward voyage, wages, neverihc- less, are due for the outward voyage. And if she is lost on the outward voyage, and any part of the outward freight had been paid, the seamen are entiled to wages in propor- tion to the amount of freight advanced ; for, when earned, there is an inseparable connection between freight and wages.i The doctrine is, that the wages are divisible and payable in the manner we have just slated. Any agreement, therefore, between the owner and freighter, making the voyages out and home one consolidated voyage, and iho freight to depend upon its full accomplishment, does not, in any degree, affect the right of the seamen to demand their wa-es upon the respective completion of the outward and homeward voyages. And as the rights of the seamen are not invalidated by any special contract between the owner and the charterer, with respect to freight, so on the other hand, those rights are not impaired by an agreement between the owners and the seamen themselves, by which, without adequate consideration, they relinquish any portion of them. Hence it is, that a contract entered into by a seaman, stipulath.g not to receive any wages unless the ship should safely return to her home port, although freight should be earned on the outward voyage, will be set aside.- The same 1 3 Kent's Comm. 189 ; Pitman .. Hooper, 3 Sumner'. Rop 2.« ; Thompson .. Faussall, 1 Peters's C. C. R. 182 ; Abbott on S.uppin,. 4<3. and authorities there cited. Wuhcrstorfr, 1 Pctof's jj^t ':;i3^tr;u a^:ri^.^d:: «: .0. ^r. s.o.e„. . .. t^.^ ;X;r in this cJse a .nd.ment v.^ jejec. not ^ .... themselves. " Where a voyage -^'-d d m> »- ' ;,^ ^u, ; .nd ports of delivery, a proporuonal «^'-" ^^ ^^ , ,„ ,„,e ol in^.de i,. the courts have upheld ihal n.le aRU. ml ^ °'^;';P,„„,,,„..,„ ..f ., ^ The attempts have usually aPP"-^ "• ^^ r.. ,„,,.... obtained from the manners, without any cohbiu 394 MARITIME LAW. [CH. XII. is true of an engagement by a seaman, that the expenses of curing in case of sickness should be deducted from his for this surrender. The first form in which it was attempted, was in taking from them simultaneous bonds to that effect, at the execution of the usual contract. And if the courts had supported these collateral instruments, the effect might have been this, that seamen might contract for a voyage of cir- cumnavigation round the globe, might deliver cargoes at ten different ports, at each of which freight was earned by their owner, and then if the ship had the misfortune of being lost on her return home, upon the Goodwin Sands, they were to be turned adrift, if they escaped, without a single penny to face the debts which the necessary subsistence of their families had incur- red during their three years' absence, on a service of fatigue and danger to themselves, though of great emolument to their owner." After stating a few leading cases to show that all British courts had concurred in discounte- nancing the disherison of the mariner by collateral bonds of renunciation, his lordship proceeded as follows: "Another mode was to be resorted to, — that mode which the courts of Scotland have reprobated, of inserting a covenant into the contract itself, to the same effect as that which had failed in the form of a bond. And this ivas intended, it was said, to meet the diffi- culty. What difficulty ? Difficulty there was none in the law, for the law was clear and settled ; — difficulty there was none arising from any contrari- ety of judgments in the courts, for their judgments were all in harmony. I know of no difficulty, but the ordinary one of finding the money, when it became occasionally due under the ancient and confirmed expositions of the law. Those who advised and those who adopted the contrivance, entertained, doubtless, the hope that all difficulties of this species would be removed by the simple transfer of the covenant from the bond into the contract In considering that question, (the question in judgment,) I am not, I ihink, to forget the high authorities under which it has uniformly been held, that such a covenant dehors the articles, but executed at the very same time, and for the very same purpose, and in the very same terms, and by the very same par- ties, was unreasonable and unjust, and to be frowned upon by the law. Does it become more reasonable and more just by being incorporated in the articles ? Is its moral quality at all altered and improved by this mere alter- ation of form? If vicious in its substance and grain, is it purified by insert- ing it in the articles ? Is thft bond the mother of all the mischief 1 How this might be considered in a court of common law, I cannot presume to predict How far a court of law would limit its view of the question to the letter of the contract, and leave these improvident men to find their way, in a court of equity, out of a bargain which that court has deemed un- reasonable, when it appeared in another form substantially the same, I am not entitled to pronounce. There are those who perhaps might lament, if this humble class of suitors were compelled to a pilgrimage through a second CH. XII.] EARXIXG AXD PAYMEXT OF WAfiES. 895 wages. The principle upon whidi a court of admiralty pro- ceeds in all such cases is, that all unusual stipulations in seamen's contracts, and all receipts or releases given by tliem, clothed though they be with all the solemnity of sealed instruments, can have no ellect beyond the consideration fairly paid.i <§> 4S9. As wages for the outward and homeward voyage are divisible and payable upon the completion of each respectively, it becomes obviously important to inquire at what time the outward voyage ends and the homeward begins. Upon a principle of convenience, as well as sup- posed equity and justice, our courts, with one excepliou, have uniformly held that one half the time passed in port must be attributed to each voyage.- In the case of Pitman court. This court is not disposed to impose that burden upon tljcm ; it uill, as far as it can, protect these illiterate and unexperienced pcr^ their own ignorance and imprudence. And, I confess, I feel d.. , ; i so more in the case of mere articles than in the case of articles and bt>ndB." And this, because bonds, being more formal instruments, would excite the attention of the seamen, and covenants of ihia character would not be Ijkcljr to slip into ihem unnoticed. 1 The Bark Rajah, Law Rep. for August, 185-2, p. 203. Determined ia the District Court of the United .Slates, in M:iAsachu8i'tts. 2 Pitman v. Hooper, 3 Sumner's R. '2m ; Hooper v. Pcrlcy 1 1 .Ma*;.. 515 ; Lock V. Swan, 13 Ibid. 7G ; Swift i: Clarke, l.J Ibid. 171 ; Moort^ r. Jones, 15 Ibid. 4-21; Jones i'. Smith, 4 Hall's Am. Law Journal, '-'70 ; Tliomp»oa V. Faussatt, 1 Pcters's C. C. R. 18'J ; Galloway v. Morris, 3 Ycat.Vi. R. p. 445 ; Giles v. The Cynthia, 1 Pcters's Adu>. It. 'JO J ; Tho Klizabclh. IVitja'a C. C. R. 130 ; The WalterstorfT, 1 Pcters's Adm. R. 215 ; Cranmcr r. Gcrnon, 2 Pcters's Adm. Rep. 931 ; Two Catherines, 2 Ma«on'« Rep. S30. Judge Hopkinson, in the case of Rronde r. Haven. 1 Gdpin'« It after a very able and elaborate examination of the Hnj-libh and A authorities, touching the point discussed in tho text, came to iho coi.rIu..on that the rule of adding one half the time of a vcbcPa stay at the out« .: ! port to the outward voyage, and the other half to tho homewat.l was supported by no known principle or Bati»raclory reason. " Wl asks." is authority or the reason to wy, ihai the one voyago end* ahd iho other begins when the ship ha« been half her timo at her |H.rl of - Can it be denied that, in point of law, the outward voyaKO u tern , 896 MARITIME LAW. [CH. XII. V. Hooper, the propriety of this rule was maintained against the very learned opinion of the court in the case of Bronde V. Haven. "In a just and legal sense," said Judge Story, "the outward voyage may well be deemed generally to con- tinue as to seamen's wages, as long as the seamen are engag- the delivery of the cargo, which may always be ascertained, and that in poin* of fact, the discharge of the vessel almost universally takes place very soon after arrival, although she may be afterwards detained a long time by wait, ing for a return cargo, or other circumstances having no connection with the outward voyage or its cargo 1 The judge, in the case of the Two Catherines, says, ' at that place the homeward voyage commenced.' But when did it commence? This is the difficulty, and no answer or explanation is given to it. In that case, the ship went in ballast to Ivica, for a cargo of salt, and can we say that the homeward voyage did not commence when she began to take the salt on board 1 Can we attach the time and labor so employed to the outward voyage? I return to the question, 'when did the homeward voyage commence,' in the case before us ? Did it not com- mence when the outward voyage ended? There was no intermediate voyage or time hanging between the outward and the homeward voyages, and belong- ing to neither, if this can be in any case ; but the second necessarily began when the first ended, and the first necessarily ended when the second began. What authority is there for saying that the outward voyage continues for three, six, or twelve months after the arrival of the vessel at her outward port, and the complete delivery of her cargo there ? How can we say that the outward voyage continued during the time when the brig was actually taking in her return cargo ? What connection, in fact or in law, had this employ- ment of the mariners with the outward cargo, or its freight, or any thing belonging to it? Judge Story put the law on the question: ' When did the homeward voyage commence?' It should rather, in our case, be, when did the outward voyage terminate ? unless, as I believe, the time is the same for both. When, then, by clear and undisputed evidence, it is shown precisely when the one did end and the other did begin, can I apply to the first, employment and services which clearly belong to the latter ? Can I charge against the first wages clearly earned by labor for the second ? . . . . So far as Judge Story asserts the right of seamen to wages for the outward voyage, it is clear enough, but in the extension of this right over half the time the vessel may remain in port, however long, or whatever may be the cause of her detention, I confess, I cannot discover how or where this doc- trine is to be found in the cases cited. The principle that the wages end with the outward voyage, and that that voyage ends with the delivery of the out- ward cargo is much more manifest and reasonable to my mind." Vide Judge Story's strictures upon this opinion, in the case of Pitman v. Hooper, 3 Sumn. 86. en. XII.] EARXIXG AXD PAYMEXT OF WAOE.>. 397 ged in purposes connected with tlieontward voyase, whelher the cargo is discharged or not ; and the homeward voyage to begin when any acts are done or preparations made, having reference exchisively to the homeward voyage. And if there be any intermediate time wliich is not projHTly referable to either, that may well be treated like an inttrmc- diate voyage in ballast, to be for the benefit and purposes of the owner, and for which he ought, therefore, to pay the seamen for their services. In ordinary voyages, it is not very easy to find any such intermediate lime, or to moasuro it with exactness ; and in many cases, acts are done, and proceedings had simultaneously with reference both to the outward and the homeward voyage ; so that it is impracti- cable to divide the time with perfect accuracy. - It was with a view to this practical dilUculty, that the rule has been established that one half the time during whicii the vessel is lying in the port, shall be deemed a part of the outward voyage, and the other half, part of the homeward voyage. For the sake of uniformity and certainty, half the time passed in port is attributed to each voyage, and it is an ap- portionment commended by the double motive of suppress- ing litigation upon slight distinctions, and of accomj)lishing the ends of maritime policy, by which the right to wages is made, in a good degree, dependent on the safety and success of the voyage." That the weight of authority is in favor of the rule as here laid down, is undeniable, but the reason- ing of Judge Hopkinson, in the case of Ikondc v. Haven, may excite a doubt, to say the least, whether the rule itself is founded on the correct principle. <§, 490. Ordinarily, and properly it should seem, the out- ward voyage ends at the place where the cargo is unloaded.* If the vessel leaves her port of destination or unladuiy, for the purpose of receiving a return cargo, she is at such j)ort8 to be considered either as on lier return voyage, or as being MAn. I Tliompson v. FaussaU, I Pctcrs's C U. Ib'J. 31 398 MARITIME LAW. [CH. XII. in the same situation as if she had remained at her last port of unlading, there to receive her cargo. ^ This doctrine, however, is not well established in our jurisprudence. On the contrary, it was held in the case of the Two Catherines,^ that if a vessel, after landing her outward bound cargo in a foreign port, proceed in ballast to another foreign port, and there take another cargo, and be lost on her homeward voyage, the seamen would be entitled to wages to the last port of departure, and for half the time she remained there. Such a case, it was maintained, was not distiguishable in principle from that of a vessel performing the whole outward voyage in ballast, in which event the seamen would unques- tionably be entitled to their wages. Judge Hopkinson, in the case of Bronde v. Haven, remarking upon the different adjudication in these two cases, said it was not for him to decide between the learned judges whose opinions were in conflict ; but it did, nevertheless, appear to him that Judge Washington had the better reason, and .that he gives us a more plain and practical rule, and more consonant with the principles of law than that adopted by Judge Story. *§, 491. The wages of the seamen being dependent on the earning of freight, it follows, necessarily, indeed it is a part of the proposition, that if the freight be totally lost, by dis- aster, peril, or force, without fraud or misconduct of the master or owners, the seamen lose their wages. This rule is one of policy, and founded upon the presumption that the 1 Thompson v. Faussatt, 1 Peters's C. R. 182. 2 2 Mason's Rep. 319. Vide, also, Giles v. Brig Cynthia, 1 Peters's Adm. R. 203 ; Crammer v. Germon, 2 Peters's Adm. R. 39 ; Blanchard v. Buck- man, 3 Greenl. R. 1. In the case of Hindman v. Shaw, 2 Peters's Adm. R. 264, the vessel had earned freight by arrival at the port of delivery. She afterwards went to another port in the progress of her return voyage, when she was found unseaworthy. The seamen refused to proceed in a vessel provided for the further transportation of the cargo. It was held that they were not entitled to wages beyond the arrival at the first port and half the time of the vessel's stay there. CH. XII.] EARXIXG AND PAYMENT OF WAO.ES. 390 hazard of losing their wages, will tend to secure the ndelity and stimulate the exertions of tiie crew. If, therefore, the freight is lost, any insurance which the owners might have efi'ected upon it, is for their indemnity alone. It does not enure to the benefit of seamen's wages, which cannot be in- sured either directly or indirectly.' However, when wages are earned, the reason of the prohibition ceasing, they may be insured, or if they have been paid to the seamen abroad, and he purchases goods with the money, the goods may bo insured. <§, 492. If, after the hiring of seamen, the owners of iho ship abandon the intended voyage, or if it be broken up from any cause not arising from the fault or misconduct of the crew, they are entitled to receive wages in the nature of damages, the amount being discretionary, and controlled by the circumstances of the particular case.- If the voyage bo 1 M'Quirk v. Ship Penelope, 2 Peters, 276 ; Icard r. Goold, U Johns. 279 ; The Lady Durham, 3 Ilagg. Adin. Rep. 196 ; The Neptune, 3 Hag?. 239 '; 3 Burr. R. 1912 ; 7 Term. R. 157. . ^ , « . n 2 3 Kent's Com. 269. A'ide Hancox v. Fishing Ins. Co. 3 humncr 9 U. 132 as to the question whether an insurance by seamen on their sh-nrcs. on a fishing voyage, when the shares would be in the nature of wage.s. though given in lieu thereof, would be valid. . . , u 3 Abbott on Shipping, 749 ; Wolf v. The Brig Oder 2 Peter, s Adm. . 261 ; Parry v. The Peggy, 2 Brown, Adm. Appx. 533 ; Bray v. I he A,.,lan., Bee's Rep. 48 ; The Fair American, Id. 134. Dr. LushinRton. .« the ca*o of The Cit/of London, I W. Rob. Ad.n. R. 88. acceded to the po.uon assumed by the counsel in the cause, that if a seaman .s engaged on bo.rd ^vessel and the owners think f.t to abandon the voya.-e for wh.ch .uch ^.■ maTras ie'n engaged, he would not be entuU-d to ^^^^^X^^^^ rally for his redress, but must seek h.s remedy at common law by .n *r on the case. The reason assigned by the learned judge y.. > a ease there would be nothing to show the real um.u.nt of W The Question would strictly be a ,ue.,ion of ,uautu,n ,«rr«./. .nd .f th. court if dmual.y were to take upon .t«elf to adju .cate «.- - ; Tf damage sustained, it would be usurping the funeuo.. ..fa. .- -^ ^^_ consideration the point in 'l'--- ■:.::;;: j^tL ^Lo the .«.n..a itted, however, that the court h.d J"'"*'^'^"""" * ,„ j,,o ^a- as taken on board, the voyage prosecuted, and dur.n« .1. progrcM rn w 400 MARITIME LAW. [CH. XII. broken np after it has been commenced, by the voluntary- act of the master or owner, or by their default, wages are due for the whole voyage. And a wrongful dismissal of a seaman on the voyage, or a failure to supply him with pro- visions, is, as to that seaman, equivalent to the abandonment of the voyage. The voyage, with respect to him, is then ended, and he is entitled to sue for his full wages for the voyage. 1 <§> 493. We have seen elsewhere,^ that in case of ship- wreck, the seamen are entitled to their wages, or a compen- sation equivalent to their wages, by way of salvage, pro- vided they do their duty, and sufficient is saved from the wreck for that purpose. The claim of the seamen is limited to the fragments of the wreck ; but whether it is to be regarded as a salvage claim, is an unsettled point in our jurisprudence. There are many and cogent reasons for treat- ing the mariner's claim as derived directly from his contract, and therefore entitling him to his wages eo nomine. To allow mariners to claim as salvors would not only be incon- sistent with the contract of hiring, but a startling violation of that principle of maritime policy, which sedulously endeavors to bind up the interest of the mariner with that of owner. It would be not only an inducement to relax his efforts in time of difficulty and danger, but a direct tempta- tion to cause shipwreck and disaster, that he might success- fully claim the large rewards of salvage service.^ If any man was unduly discharged, and also in a case where the seaman was dis- charged before the voyage begun, but which was afterwards prosecuted. Our courts of admiralty proceed upon no distinction of this kind, but in all these cases entertain jurisdiction. 1 Sigard v. Roberts, 3 Esp. N. P. Rep. 71 ; The Castilia, 1 Hagg. Adm. R. 59 ; Hoyt v. Wildfire, 3 Johns. 518 ; Emerson v. Howland, 1 Mason, R. 45 ; 3 Kent, 187; The Malta, 2 Hagg. 158 ; Hindman v. Shaw, 2 Peters's R. 264. 2 Ante, tit. Salvage, pp. 339-343. 3 Judge Sprague, in the case of The Massasoit, 7 Law Rep. 522. Vide upon this point, The Cynthia, 2 Peters's Adm. R. 203 ; Weeks v. The en. XII.] EARXIXG AND PAYMENT OF WAGES. 401 part of the cargo be saved from the wreck, the wages of iho seamen are to be paid without any deduction.' If the sea- men, in a case of shipwreck, abandon the wreck, ammo lion revertendi, the contract between them and the owner is dissolved. The connection of the crew with the ship is at an end. The claim for wages is extinguished, and the benefit of the jus postliminii does not arise on the salvage of the goods by other persons.- <§, 494. By the act of Congress,^ one third of the seaman's wages are due to him at every port where the ship to which he is attached unlades and delivers her cargo, unless tho contrary be expressly stipulated in the contract ; and as soon as the voyage is ended, and the cargo or ballast is fully djs- Calherina Maria, Id. 424 ; and AbboU on Shipping, 75-', nolo, and :iuilK..aas there cited. In the case of Tilman v. Hooper, 3 Sumner's R. 50. Ju.)t;o Story makes the following observations upon this subject : "In the case of shipureck," he says, " during the voyage, the seamen, .f ihcy n^m»m by the ship and assist in the salvage, will be entitled to receive the.r «>«o« uul of the fragments of the wreck, if enough is saved to pay them, even tb..««h the entire freight be lost by the total destruction and low of tho r. This exception is, doubtless, designed to enlist the val an - seamen in the preservation of the property, as far as V-^ ' founded upon the same policy, as the general rule ; that .s lo ..y. .o nulc. it their interest to use every endeavor to save the P^^P^'^'y =»";>•" j;'' success of the voyage. Whether this except.on l^'^^^^rc of ..h the ground of its being an allowance -;»•-;-;": l^ poUcy of the or whether it is a mere dry exception to entorce tno .iginal rule, has been a -pic ;. some Jn^al .^;- ^^ ^^ ,. stands upon the one ground or iho ot .e , ^ „,^j ^^ e.t«b),»hr. a blished. What I rely on, m ■"^'S^'^ ';'';',„,, ,,„ »eamcn recover ihr.r full ease in wluch, though. he cntt-fre...^^^^^^^^^^^ , . ,^,, „„ wages out of the wreck ol l»'^7"''■ , ^^,,„,, , .d Tho " r,K„ „.lnA nf the materials of the binp, wi"< " 'Ts In ; o .he entire Io»h, wuhoul any c the owner must submit to i ^s: •,,,,„ i lla.-ij. K his own loss." Vide, also. Ihe N.-ptune. U ac^unt of the value of . he m.e.a.o. ...... ^^^^ ^^ ^^^^ ^^^^^ _^^^ entire wages consmute, m .hi» cast, a i u^ ^^ the owner mi 3 Joly20, nUO, ch. 20, ^0. 34* 402 MARITIME LAW. [CH. XII. charged at the last port of delivery, the marmers are enti- tled to the wages then due, according to their contract. If they are not paid within ten days after their discharge, or if any dispute arises between the master and the seamen touch- ing their wages, admiralty process may be instituted in rem against the ship, in the manner pointed out in the act. In the construction of this statute, it is to be remembered, that the general, if not the uniform, usage in the United States is to discharge the crew before unlading the vessel, and employ other persons to perform that service. It is a custom so uniform, general, and of so long standing, that it has now become one of the implied terras of the contract. The voyage, then, so far as the seamen are concerned, is ended when the vessel is safely moored, and then the ten days for the payment of the wages begin to run. If, how- ever, by the terras of the contract or usage of the port, the seamen are bound to remain and assist in discharging the cargo, then the ten days only begin to run from the dis- charge of the cargo. 1 Where the seamen by the usage of 1 The Marys, Ware's Rep. 454 ; The Ship Susan, 1 Peters's Adm. Dec. 165 ; The Philadelphia, Id. 210 ; The Happy Return, Id. 255 ; Holmes v. Bradsliaw, cited in Story's Notes to Abbott on Shipping, 757. Lord Stowell, in the case of The Baltic Merchant, Edwards, Adm. R. 91 , held, that the sea- men are bound to stay by the vessel until the cargo is actually delivered. And in the case of The Cambridge, 2 Hagg. Adm. R., he said that the lavi^ of England required the mariners, in ordinary cases, to stay by the ship till the discharge of the cargo, when the other party has done nothing to super- sede it. Judge Story, in the case of Cloutman v. Tunison, 1 Sumner's Rep. 373, 377, maintained the same principle. After declaring, that in the sense of the maritime law, the voyage is ended when the ship has arrived at her last port of destination, and is moored in good safety in the proper and accustomed place, he proceeded to say, "I do not say that the officers or seamen are then discharged from any further duty, and are not bound to attend to the unlivery of the cargo. On the contrary, I maintain, that the seamen, and d, fortiori the officers, are bound to remain by the ship and watch over her concerns, and assist in the unlivery of the cargo, if made in a seasonable time ; unless there be some express or implied agreement or established usage to dispense with their further services." On the other hand, Judge Peters, in the case of the ship Happy Return, 1 Peters's en. XII.] EAEXIXG AXD PAYMENT OF WAGES. 1 ' the port or terms of the contract are not entitled to their wages until the unlivery of the cargo, the owners arc entit' ■ ' to a reasonable allowance of time for llie unlading. Ji; .- Peters, in the case of the Ship Susan, ^ and Jndgo Davis, u\ the case of Holmes v. Bradshaw,'- considered that fifteen days were a proper allowance for the discharge of the ca This rule, in its practical operation, is advantageous. Ii docs not unreasonably delay the payment of the wages, while on the other hand it destroys every pretence of the owner to un- reasonably delay the unlading the cargo. The precise number of days is not so important ; it is that a delerminalc standard is employed to ascertain when the cargo either is, or might be discharged. It will be observed, that the act of Congress restrains the issuing of process against the vessel, until the expiration of the ten days from the arrival of the ship, or from the discharge of the mariner, but it does not prevent the filing of a libel before the ten days have expired. It is also observable, that immediate process may be issued against the vessel, wherever she may be found, in case she shall have left the port of delivery where the voyage ended, betorc payment of the wages, or in case she shall be about to pro- ceed to sea before the end of the ten days next nftor the delivery of her cargo or ballast. ^ 495 The lien of a seamen upon the vessel is a privileged hypothecation jus in re, but it may be lost by prescription or laches. He is bound to enforce it in a reasonable tune. Any considerable delay endangers it. Wh:U the law w-.ll deem reasonable and proper time for the enh>rce.ncnl of a seaman's lien, must depend upon the circumstances of each particular case. Courts of admiralty will not n.terposo hi favor of old and dormant claims. They n-nnre v,._Mlanco .n A.i>n. R. 253, inclined to the o,inion jl.t ^^J^^^^^.Z '::::^ l.! unlade tl.c ship after ihc voyage .» c-mled. And U the United Stales is in accordance vsul- h^- view o) 1 1 Pcters's Adm. U. H>5. 2 Cited in Story's AbboU, 757. A 04 MAEITIME LAW. [CH. XII. parties who invoke their aid. They will not suffer them to withhold their claims, "until from lapse of time it becomes utterly impossible to ascend to the whole justice of the case."i The act of Congress, regulating suits for mari- ner's wages in the admiralty, contains no limitation as to the time within which such suits shall be brought. And the admiralty is not limited or governed by the regulations adopted by the several States, with respect to the prescribed time within which suits must be prosecuted. ^ It therefore proceeds upon the general rules it has laid down for its own guide, and to which it ordinarily adheres. <§> 496. Capture by an enemy extinguishes the contract for seamen's wages ; but if the vessel is recaptured and the voyage performed, the right is revived, and the full wages are due, subject to a ratable deduction for the expenses of salvage.'^ The general rule of the maritime law is, that if freight be lost during the course of the voyage, by a disaster or peril, arising from accident or superior force, the seamen lose their wages."* If a ship be not seaworthy when she sails, and the voyage is lost by that means, it is a loss arising from the fault, misconduct, or neglect of the master, and does not affect the^ seamen. They may recover their wages, in such a case, the same as if the voyage were actually performed.^ 1 The Rebecca, 5 Rob. Adm. R. 94 ; Willard v. Door, 3 Mason, R. 161 ; The Sarah Ann, 2 Sumner, 206 ; The Eastern Star, Ware's R. 186 ; The Rebecca, Id. 212. 2 Brown v. Jones, 2 Gallis. Rep. 481. 3 Brooks V. Door, 2 Mass. 39 ; 3 Kent's Coram. 191.* •1 Hoyt V. Wildfire, 3 Johns. 518. 5 Hiiidman v. Shaw, 2 Peters's Adm. R. 264. See also the case of Hoyt r. Wildfire, 3 Johns. 518. A different principle, however, has been adopted * As in the ca?e of recapture, so in the case of ransom, the seamen are entitled to their wages, subject to a contribution for the ransom, provided the voyage was subsequently performed. Girard v. Ware, 1 Peters, C. C. R. 142; The Saratoga, 2 Gallis. R. 164 ; Maisonnairc v. Keating, Id. 336 ; Brooks v. Door, 2 Mass. 39 ; 14 Ibid. 66. CH. XII.] OF TUE FORFEiriRE OF W \(:f>. 405 Of the Forfeiture of Wag^es. •§> 497. Independently of any positive regulation, by the general maritime law, desertion during the voyage is followed by a forfeiture of all wages antecedently earned. If, how- ever, the offender is subsequently received on board, with the consent of the master or without objection on his part, he is remitted to his original rights; the forfeiture is done away and he is entitled to his whole wages, subject to deduction for the loss of his services in the ship during his absence.^ And if the deserter repents of his otfenco and seeks to return to his duty, the master is bound to receive him back as a case fit for condonation, unless his previous misconduct would justify a discharge.- If a seaman's con- in England. In the case of Eaken v. Thorn, 5 Esp. N. I'. Hop. G, ii was contended for the plaintiff, tliat the owner, by sending out a ship incapabUj of peforming the voyage, could not defeat the plaintiff's claim to wa('F«, where he had been willing to serve, and where tiie vt)yagc \^ ' I defeated by reason of the defendant's own default. But Lt)rd 1 . „ > said, that the cases had never made the distinction contended for by iho plain- tiff's counsel. The rule of law, he said, was general. The ship : form her voyage to entitle the seaman to recover, but lie im ' • maintain a special action against the owner for damages. 1 1 made by the plaintiff's counsel in this case is obviously correct ; and whiUl the rule of law as stated by Lord Ellenborough is general, it ad- «' all general rules and axioms, of exceptions. .\nd no exception ... :.. :o thoroughly ingrafted upon it, than the one stated in the text, namely, thai if the voyage be lost by the neglect, fraud, or misconduct of the roaster, iho seamen, nevertheless, are entitled to tlicir wap.-s. 1 Cloutman r. Tunijon, I Sumn. H. 373 ; The Hovcna, >\ aro's Rrp. 307 ; The Mentor, 4 Mason, 05 ; The Commerce, I Potors-s Adm. U. 100 ; The Elizabeth, Id. 128 ; The Cyrus, 2 I'eiers's Adm. H. 4o7. 2 Cloutman v. Tunison, 1 Sumn. 11. 373 ; C.ff.n v. Jenkins. 3 Mor, • R. 108; The Mary, 1 Peter's Adm. K. 13U; The Test, 3 Ibffff. 307. 315 ; Buck V. Lane, 12 Serg. & R. 200 ; Austin v. Ucwcy, 1 lUl, this subject of condonation, Mr. Justice Story, in the ca.ro. i ...u,,.,... .. Tunison, has given a full and satisfactory exposition of lh« law. I n • case of clear desertion " he says. " if the party repent, ofhi. offence. .«d seeks to return to duty, and is rcudy to make suitable .polo«.c.. and lo rrpa.r 406 MARITIME LAW. [CH. XII. duct in the course of the voyage is such, that the master is warranted in discharging him, the discharge operates like a desertion, and works a forfeiture of his wages. If a seaman deserts, but is arrested and imprisoned, as authorized by the act of Congress, that is the only penalty he incurs. He is not to suffer a loss of his wages in addition to his punish- ment. The imprisonment is considered as the whole pe- nalty. «§> 498. To forfeit wages there must be a voluntary depart- ure, without reasonable cause. ^ If the seaman absents him- self from the ship, and can show that his so doing was a necessary or justifiable act, it cannot be construed into deser- tion. Desertion is a forfeiture of wages ; but if the master con- ducts himself in such a way that the sailor cannot without damage to his personal safety continue in his service, the law of nature itself justifies him in providing for that safety. Desertion is a voluntary act of the seaman's ; but if it is caused by the act of the captain, by his cruelty, or omission to provide provisions, the departure of the mariners, for pro- tection in the one case, and for provisions in the other, is not a desertion. In both cases they have reasonable cause for leaving the ship ; and to constitute desertion there must be a voluntary departure without reasonable cause.^ To consti- tute a desertion within the meaning of the general maritime the injnry sustained by his misconduct, he is entitled to be received on board again, if he tenders his services in a reasonable lime, and before another per- son has been engaged in his stead, and his prior conduct has not been so flagrantly wrong that it would justify his discharge. Upon this subject it is well known, that the maritime law encourages a reasonable indulgence to human infirmity, and especially to the known thoughtlessness and rashness of seamen. It favors repentance and condonation ; and will not permit a master to insist upon the utmost stretch of authority, or forfeiture, unless there is a clear propriety in exerting it." 1 Abbott's Ship. 646. 2 The Ship Moss, 1 Gilpin's R. 219 ; Limland v. Stevens, 3 Esp. R. 269 ; Sherwood r. M'Intosh, Ware's R. 109; The Mentor, 4 Mason, 84; The Rovena, Ware's R. 309, en. XIL] of the FORFEmRB OF W.UIEj:. 40T law something more is required ihan a single absence will,. out leave. There must be an absenting of the seaman fnr- tively, with the intention of keeping himself ont of iho reach of the master and of abandoning the vessel nil. ' A single absence without leave, for a temporary i does not upon the general principles of the law, am : :j a desertion, working an entire forfeiture of wages.' Wo shall see presently, that by act of Congress, an abLncc from the ship of more than forty eight hours at one time amounts to desertion. But to work a forfeiture of wages, the deser- tion, whether by the maritime law or by the statute, mtisi be during the voyage, or before it is ended. And the vo> is ended in the sense of the law, when the ship has arrr. at her last port of destination, and is moored in good suivij in the proper and accustomed place. - <§. 499. We are next to notice the various statutory pro- 1 Sherwood v. Mcintosh, Ware's R. 117; Cloulinan r. Tuni»on, I Sum- ner's R. 373. In tliis latter case, Judge .Story, in stni ' ' of the mariiimc law constitutes desertion, employed th^ ,; "It is commonly enough supposed," he observed, ** that an abitcncc 1. . the ship without leave of the proper oflicer, or in disobedience of hi constitutes desertion. But this is certainly a mistake. I» ■ sense of the maritime law, is a quitting of the ship and her without leave and against the duty of the party, but with an intent not asain to return to the ship's duty. There must be the act of quiiiii animo dcrelinquendi, or animo non rcvcrtcndi. If a scainin (ju.. without leave, or in disobedience of orders, but with an intent to i duty, however blamable his conduct may be, (and it is certainly puniahabio by the maritime law, not only by personal ch.'U'i: ' !jut by .' by way of diminished compensation,) it is not thi- of dr»< which the maritime law attaches the extraordinary penally of foil all antecedent wages." 2 Cloutman v. Tunison, 1 Sumner's U. 373 ; Tiio Mary, Wat.-'. 1( \W ; The Happy Return, 1 Pctcrs's Adm. U. '-'53 ; The Su5.in, Id. I«ii. I'i.Icm there be some express or implied agreement, or vstabliihcd uaago to the con- trary, the seamen are bound to attend to the uiiliviTy of ih' they fail to do .so, and leave the ship, it is not a deacfiiun. 1 .. , sible in damages for a violation of their ronlract, but they do not incur « forfeiture of their wages. Vide, Ante, p. 402. 408 MARITIME LAW. [CH. XII. visions respecting desertion. The second section of the act of Congress of 1790 provides that there shall be, at the foot of the shipping paper, a memorandum in writing, of the day and the hour in which every seaman or mariner who shall ship and subscribe, shall render himself on board, to be^in 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 signing the contract, over and besides the sum so advanced. It is observable that these forfeitures are incurred for neglect or breach of duty in cases, which can happen only prior to the commencement of the voyage. And it is also to be remarked, that if the mariner does not render him- self on board at the hour appointed in the articles, he will still be entitled to his wages, without deduction, if he can show that a special indulgence was granted him by the mas- ter.i The fifth section of the same act provides, that if any seaman who has signed the articles shall absent himself 1 Cotel V. Hilliard, 4 Mass.R. G64 ; The Philadelphia, 1 Peters's Adm. R. 210. CH. Xn.] OF THE FORFEITITIE OF WAt5KS. -lOO without leave, and a proper entry shall be made thereol" m the log-book on the same day, if he returns to duly within forty-eight hours, he shall forfeit three days' pay for every day's absence, to be deducted out of liis wages; if absent more than forty-eight hours at one time, he shall forfeit ail the wages due him, and all his goods and chattels on board of the ship, or in any store where they may have been lodged at the time of the desertion, and shall moreover pay all damages. This section applies to the case of absence or desertion occurring after the commencement and during the continuance of the voyage.' In the construction of this section of the act, it is held, that a proper entry in the log- book is indispensable evidence of a desertion, for which a forfeiture of wages is claimed. And it is not a proper entry simply that the seaman was absent. Ii must be also staled, whether it was with or without leave. Slating that ihe ^ea- man left the ship is not sulUcient.- The entry must be made on the very day, when the seaman absented himself from the ship. An entry on a subsequent day is not a compliance with the law.3. Tiie entry must mention the name of the mariner against whom the forfeiture is to be enforced. It is not sufficient to say generally that the crew, or even that all the crew, were absent. And to incur the forfeiture there must be one continued absence of forty eight hours.* <§. 500. The entry in the log-book is evidence of the fact 1 Cotel I'. Ililliard, 4 Mass. 11. f.01. 2 The Brig Independence, Gilpin's It. 110; The .Moss, Id, -.l- , i\ V. Goldsmithrid. 207 ; AhboU on .Sliip. \>. 773, and aulli..riUc» Ihrre cii. 8 The Rovena, Ware's It. 30!>. In Clouunan v. Tuniiwii, I Sumner '• R. 373, 381, Judge Story said, thai the entry on the very day, u » $i»' "It is a just and reasonable precaution," 1 quent fraudulent entries, and all parol evui prorrress of the voyage, which may resull from .fier-lhought ind c vances, from personal pique, or from iho unatoidablo deficicucy of |k.**u»« proof of leave." 4 Id. 312. MAR. 3^ 410 MARITIME LAW. [CH. XII. of desertion ; it is indispensably necessary to be made, but it is not conclusive. Parol evidence is admissible to falsify the entry of desertion. ^ Bat if the entry is correct, and it ap- pears that there was an absence of forty-eight hours without leave, this is conclusive evidence of desertion by the statute. Whereas upon the common principles of the maritime law, such absence is merely presumptive evidence of desertion. The Act of Congress is highly penal, and therefore nothing is to be taken by intendment. The party who seeks to enforce the forfeitures of the statute, must show on his part a strict compliance with all the statute requisites. ^ As the statute declares, that an absence from on board the ship without leave' is a forfeiture of the seaman's wages and a desertion, unless he actually rejoins the ship within forty-eight hours, it is therefore at his own peril, to absent himself And hence it is, that if he is unable to rejoin the ship, whether by rea- son of her sailing on the voyage or otherwise, 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 pei^iculofi <§> 501. In a case, where the seamen have been guilty of such misconduct, as incurs a forfeiture of their wages, but they remain on board and faithfully perform their duty, the wages they subsequently earn are not affected by their pre- vious acts. And their advance wages are absolutely due to the seamen, as part of the consideration of their contract to ^ The Brig Mary, 1 Peters's Adm. R. 139; The Brig Commerce, Id. 160; The Brig Phoenix, Id. 201 ; The Ship Philadelphia, Id. 210. 2 Cloutman v. Tuiiison, 1 Sumn. R. 373, 381. 3 Coffin V. Jenkins, 3 Story's R. 108, 114. Mr. Justice Story in this case went even farther than the doctrine of the text, and held, that if upon the eve of the departure of the ship from the port on the voyage, a seaman should, with a full knowledge of the fact of her intended departure, volun- tarily or secretly without leave quit the ship, that would of itself be strong frima facie evidence of a positive intention to desert, and it would require the fullest and clearest evidence of bona fides, and sincerity of intention, to dis- place the presumption. CH. XII,] OF THE FORFEITURE OF WAiiES. 411 go on the voyage, and are not affecled by any subsequent occurrences.^ <§> 502. There can be no question that the seamen, during the voyage, are bound to unlade and reload the ship at fo- reign ports. And they incur a forfeiture of wages by refus- ing to do so.- It is not perhaps so clear, that by the general principles of the maritime law, the seamen are bound lo remain by the vessel at the port of discharge, on the return voyage, and assist in the unlivery of the cargo. It is how- ever the opinion of great judges, that they are so bound. " By interpretation of law," said Sir William Scott, " in the case of The Baltic Merchant," the voyage is not completed by the mere fact of arrival ; the act of mooring is an act lo be done by the crew, and their duty extends to the time of the unlivery of the cargo. There is no period at which the cargo is more exposed to hazard than when it is in the act of being transferred from the ship to the shore, and therefore the law, not only the old law, but particularly the staiuto by which the West India trade has been in later times regu- lated, has enjoined in the strictest maimer that the mariners shall stay by the vessel until the cargo be actually delivered. I take this to have been always a part of the duty of mari- ners ; their contract is legally understood to go this length, and there never can have been a time when the owner was not entitled to some consideration against the marmcrs, ou • account of the non-completion of the contract. This is a consideration not in modum pasncB, but it is a civil comiKU- sation for injury received, existing in all reason and justice, antecedently to any statute upon the subject ' 1 he same doctrine was subsequently declared by S.r Christopher Ro- bhison in the case of The Cambridge,* and was alhrmcd by 1 The Mentor, 4 Manon, Hi. ^ 3 The Happy Uclurn, 1 l'clcr»'» A.lin. Ucp. '-jS. 3 Edward'u Adiii. !<• 'Jl- 4 2 llagg. Adm. '^2. 412 MARITIME LAW. [CH. XII. Judge Story in the case of Cloutman v. Tunison.^ But the general principle may be controlled by an established usage to the contrary. And we have already seen, that in the ports of this country it is a very uniform custom, on the return of a vessel from a foreign voyage, to discharge the crew before unlading the vessel, and employ other persons to perform that service. And wherever the custom is established, it is fairly considered as entering into and making part of the implied terms of the seaman's contract.^ <§> 503. The maritime law punishes aggravated offences of seamen with a forfeiture of wages, especially if they are persisted in without repentance or amends. But lighter offences it treats with an indulgent lenity, allowing compen- sation for any losses and expenses caused by them ; passing over slight errors, unaccompanied with mischief, without notice ; and correcting habitual neglect, or incompetent per- formance of duty, when it amounts only to levissima culpa, by a correspondent diminution of wages.^ It also draws a strong line of distinction between disobedience of orders in port, and any insubordination whatever, when the vessel is on the high seas, where it might expose to destruction the ship, cargo, and the lives of all on board.* In cases where the misconduct has been such that the master will be justi- fied in discharging a seaman during the voyage, that is, in a case, where the discharge of the seaman is imperatively 1 Sumner's R. 373. 2 The Mary, Ware's R. 456. In the case of The Happy Return, 1 Peters's Adm. R. 253, Judge Peters said, that the merchants found it more for their interest to hire others than the mariners to lade and unlade vessels, than to depend on the mariners, who are particularly ungovernable after a voyage is ended ; and are, when arrived at home, impatient under confine- ment to the drudgery of unlading the cargo. The owners, too, wish to avoid the trouble, danger, and expense of keeping fire, and cooking, and furnishing provisions on board the ship. Vide also Webb v. Duckingfield, 13 Johns. Rep. 390 ; Brown v. Jones, 2 Gallis. Rep. 477, 482. 3 The Ship Mentor, 4 Mason's Rep. 86. 4 The Blake, 1 W. Rob. Adm. R. 73, 88. en. XII.] OF THE FOKFEITURE OF WAGES. 413 necessary for the safety of the ship, and the duo preservation of discipline, the cause that justifies the discharge, will also be sufficient to deprive the seaman of his wages.' <§, 504. With these preliminary obscrvaiious, \s.- novr pro- ceed to consider those particular olfences, the commission of which, will incur either a total forfeiture of all the wncrs antecedently earned, or a considerable diminution of i. It is observable, that the maritime law never inflicts the penalty of a forfeiture of wages for a single otlcnce, unless it is of a henious and aggravated nature. It considers the character of the service, makes proper deductions and allow- ances for any occasional irregularity of conduct, and judges of the acts of a seaman from an enlarged view of the whole tenor of his service. It is not accidental or occasional neg- lect, or disobedience, or drunkenness, that works a forfc.turo of wages. The neglect, or disobedience, or drunkenness, must have the character of habit impressed upon it to pro- duce that effect. For slight faults, either of neglect or d.s- obedience, diminished compensation is resorted to as nn 1 The Exeter. 2 Rob. Adm. U. 2G1 ; The Hlakc. 1 W. Rob. R.::i . Tho Mentor, 4 Mason, R. 84. In ihi3 iMier case, Ju. .'c Mory ^. vie V a prompt and cheerful obedience of order., on the ,>art o ^::::f^edUpesti.portance Itadnut.of^.«-^^^^^ or reluctant fuiniment of duty, and wc-^hs not u 1 . . "''^ '»'" JIncrua.e of command, or the necess.ty of iho serv.co. Occa.u.nal of ier or matter, occasional ebullition, of ,.a«Mon, an. :l;rnt to nautical 1.., are not ^^^^^^fZ^Z^Z:^^^.. .n.« w.„t.„ but arc deemed not wholly mexcu«able. "1 1 ;;'' "'^ ^^^^^,,,„ .„ Tless they can subdue obstinacy and iudolenc xnand, and enforce a prompt and uncompl:. Ship and cargo must soon be M the men N ' I waves. 414 MAEITIME LAW. [CH. XII. indemnity for the wrong.^ The offence of endeavoring to commit a revolt, is a very serious and aggravated one. It is punishable by our laws with fine and imprisonment, but it does not in all cases incur a total forfeiture of wages. Al- though the offence in a legal sense is committed, yet if it was committed under such circumstances of gross provoca- tion and misconduct, on the part of the master, as to form a very strong excuse, addressing itself to the conscience and mercy of the court, it will not be visited with a total for- feiture of all the antecedent earnings.^ Drunkenness, if ha- 1 Spurr V. Pearson, 1 Mason, R. 105 ; The Mentor, 4 Mason, 90 ; The Ranger, Bee's Adm. R. 148; Sprague v. Kain, Id. 184; Macomber v. Thompson, 1 Sumn. R. 384; Cloutman v. Tunison, Id. 373; Knagg u. Goldsmith, 1 Gilpin's Rep. 207 ; Orne v. Townsend, 4 Mason, R. 541 ; The New Phojnix, 1 Hagg. R. 198 ; The Frederick, Id. 211 ; The Lady Camp- bell, 2 Hagg. 5; The Gondolier, 3 Hagg. 190; Mitchell v. Orozimbo, 1 Peters's Adm. R. 250 ; Wilson v. The Belvidere, Id. 288 ; Thome v. White, Id. 168 ; Brown v. The Neptune, Gilpin's R. 89. It was said by Judge Story in the case of The Ship Mentor, that it is not a single neglect of duty, or a single act of disobedience, which ordinarily carries with it so severe a penalty. There must be a case of high and aggravated neglect or disobedi- ence, importing the most serious mischief, peril, or wrong ; a case calling for exemplary punishment, and admitting of no reasonable mitigation ; a case involving a very gross breach of the stipulated contract for hire, and going to the very essence of it. 2 The Mentor, 4 Mason's R. 84, 93. The offence of endeavoring to make a revolt, consists in the endeavor of the crew of a vessel, or any one or more of them, lo overthrow the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transfer- ring their obedience from the lawful commander to some other person. United States v. Kelly, 11 Wheaton's R. 417. To constitute the offence, it is not necessary that the removal from command should be by physical force. The important consideration is, whether there is an overthrow of the master's authority, or a removal of him from his command intended. It is the fact, and not the mode by which it is accomplished, that is regarded. The over- throw of authority may be just as complete, the removal from command may be just as effectual, by a universal disobedience to all orders, producing an actual suspension of the master's authority or command, as by actual force, or personal imprisonment, or driving the master on shore. United States v. Haines, 5 Mason, R. 272. See also 1 Mason, R. 147 ; 4 Id. 105 ; 5 Id. 402 ; Ibid, 460; 1 Sumner's R. 168 ; 2 Id. 582. en. xn.] OF THE FORFErrniE of wages. 415 bitual and gross, will be visited with a total loss of n'ages; if only oc(?Ksional, with a diminished compensation. " Drunk- enness," suid Lord Stowell, in the case of The Kxeler,* "is an offence pecnliarly noxious on board a ship, where ihe sober and vigilant attention of every man, and particularly of officers, is required. At the same lime the court cannot entirely forget, that in a mode of life peculiarly exposed lo severe peril and exertion, and therefore admitting in seasons of repose something of indulgence and refreshment ; that indulsrence and refreshment is naturally enough south' Iv such persons in grosser pleasures of that kind; and tl. fore that the proof of a single act of intemperance, com- mitted in port, is no conclusive proof of disability for general maritime employment. Another rule would, I fear, disable many very useful men for the maritime service of their coun- try." <§, 505. Damages can be recovered for the misconduci li a seaman, only when they are the direct and immediate result of his acts and omissions, not when they are remote and contingent. In such a case, the maxim, causa proxitna, non remota, spedatur, applies.- When a seaman is imprisoned for misconduct, or is taken out of the ship and detained in jail until her departure, pursuant to the law of the port, ho does not in either case forfeit the wages accruing during his confinement. Nor can he be charged with the sum |>uid for a hand in his place, whilst he was in prison. If imprisoned for misconduct it would be a double punishment for the same offence, a punishment by confuiement, and also by a for- feiture of wages; for charging him with the wages of the substitute is the same in elfect as forfeiting so much of his own. And the same observations are applical.lo to the case of imprisonment, when without any fault of the marmcr, ho 1 2 R..!.. Adm. 11. 2(11. Sco also Orne r. Tov^rntcnd, 4 Miw«'« «• Ml ; The I51akc, 1 W. Hob. Adm. U. 7:i. 2 Macomber v. Tliompbon, 1 Sumn. U. 387. 416 MARITIME LAW. [CH. XII. is thrown into prison, in pursuance of the provisions of a foreign law. To charge him with the sum paid for Another hand during his detention, would be an accumulation of mis- fortune, that cannot be thrown upon him.^ If the seamen insist upon a survey of the vessel, on the ground of unsea- worthiness, the owners cannot charge the expense to the seamen, provided there was reasonable cause for the survey.^ <§. 506. It is the rule of the maritime law, that mariners must contribute out of their wages to the damages arising from embezzlements by each other during the voyage. But when the embezzlement has arisen from the fault, fraud, con- nivance, or negligence of any of the crew, they are bound to contribute to it in proportion to their wages. When the embezzlement is fixed on an individual, he is solely respon- sible. When 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 when no fault, fraud, connivance, or negli- gence is proved against the crew, and no reasonable pre- sumption is shown against their innocence, the loss must be borne exclusively by the owner or master. In no case are the innocent part of the crew to contribute for the misde- meanors of the guilty ; and in a case of uncertainty, the burden of the proof of innocence does not rest on the crew, but the guilt of the parties must be established beyond all reasonable doubt, before the contribution can be demanded. ^ 1 Wood V. The Nimrod, Gilpin's Rep. 83 ; The Cynosure, 7 Law Rep. 226. The doctrine of the text is intended to apply to cases of impiisonment arising under the statute law of Louisiana and South Carolina, which imposes the penalty of imprisonment upon any colored person who comes within those States, on board of any vessel. 2 The William Harris, Ware's Rep. 367; Vide the cases, Snell v. Brig Independence, Gilpin's R. 140; Magee v. The Moss, Ibid. 219; Brower v. The Maiden, Ibid. 298, as to what charges, paid by the master, on account of the seamen, will be deducted from their wages. 3 Spurr V. Pearson, 1 Mason's R. 114, 115 ; Lewis v. Davis, 3 Johns. R. CH. Xn.] OF THE FORFEITURE OF WAGE?. 417 17 ; The Kitty, Bee's R. 055. For other ca-^cs w ! and can be made available by way of set-otT (and ii St L „=,-. • the claim for full wages, vide Wilson r. The Belvidere, 1 Pctert't Adm. R. 288 ; Thorne v. White, Id. 1G8, 173 ; The Neptune. 3y, 2 lUgg. 4W : TTie Washington, 1 Peters's Adra. R. CIO ; Willard v. Door, 3 Ma»«o, R. 101. IXDKX. ABSENCE, "^^ a single act of, docs not constitute a desertion i : it must be animo non rcvcrtntdi to constitute il- : : of more than forty-eight hours, at one time, is •. ■: . (See Deskrtiox.) AD:\nEALTY JUPJSDICTIOX, (Sc p. 2.) to decree the sale of an innavigable vessel 110 of charter-parties 131, k , (See JcniSDiCTioK.) ADVERTISEMENT, of a ship, unless a part of the contract docs not con-^titule a parol warranty .... ■when admissible to establish a charire of fraud "'^» AGENT, representations by 86-89 rights of, when possessed of an interest in tl>c subject of iJio agency whether he may take the security of a bottomrv-bond whether he may claim as a salvor ... • AMALFI, laws of ','. i" history of 1". "uti- 4 APPELLATE COLTvTS, discourage appeals in salvage cases . HO APPRENTICE, may become a salvor . . '' APPURTENANCES, meaning of ... what passes as ... • AVERAGE. (See Gexkuai. Aveiiaok.) • I! BAILMENT, whether a steamljoat, hired for llio puqioMS of towin(( a »< constitutes a ca.sc of • ' as to damages in such a ca.se ' 420 INDEX. Page BALTIC SEA, not considered a narrow sea 31 mare clausum against hostilities by foreign states ... 33 violated by tlie English attack on Copenhagen . 33, note BALLAST, ■whether considered as " furniture" of a ship . . . 97 BILL OF SALE, whether necessary to pass a vahd title to ships . . .91-95 grand bill of sale, meaning of 95 the latter not known in this country, 95 BILLS, salvage not allowed for 329 BILLS OF EXCHANGE, may be secured by a bottomry-bond. (See Bottomry-Bond.) BLOCKADE, of port of departure, suspends contract of affreightment . 163 such a blockade entitles the freighter to receive the cargo, if of a perishable nature ...... of port of destination dissolves the conti-act neutrals bound to respect must be effective ....... notice of ........ whether clearing out for a blockaded port unlawful . decisions of Lord Stowell with respect to . . BOAT, whether it passes as appurtenant to the ship loss of, when considered general average BOTTOMRY-BOND, . description of ....... . for what objects taken may be on time or sj^ecific voyage .... ship-owner may give in home port .... otherwise with the master ..... cannot be given by the master, when the owners are present 200 whether master may give, when a minority of owners are present 200 what justifies the master in giving security of . . 201-203 fraud vitiates 201, 202 lender upon bottomry-bond to exercise diligence, &c. • . 201 necessity of the repaii's, &c., for which the bond was given, must be shown 202 form of, different 197-203 does not bind the owner in this country .... 203 effect upon, when owner is expressly bound . . . 203 interpretation of ........ 203 must express obligation to be on sea risk .... 203 particulars, expressed in 204 • 163 166 « 167 167 • 168 162- -171 • 168 95 -97 • 267 197 197- -199 199 , 200 200- -207 INDEX. 421 BOTTOMllY-BOXD, continued. voyage must be described iO!> principal and interest must be jnu a: n.-k . . 90ft ■wlietlier this is ninr.--;:iy wlun chin !( -ul !ntfn-»t i* n><«rvc«l, . . aaio 3 marine interest, not neeessary to constitulo vX)* gives only a claim upon the ship . . '.'OT ■when given by the master, must he in a forciini port . . what is a foreign port for thi^ purpose oT - 3io master restrained from giving, if he haa goods of his i. v. ;., :,., uiii whether he has any lien on ship for good.*, fund.4. kc~, ta em- ployed . . ' '-10 whether an agent of the ship-owner can i;ik. ;i i .■ ;..:_ • i for his advances -li'-iJia whether consignees of the cargo can take the security of -13 whether a consignee of the ship can take tin y of 3I'J-914 agents, consignees, and third persons rcstnuiuM ii..m taking a bottomry-bond, if they have funds of the owner, or arv in- debted to him 214 part-owner cannot ti\ke, ii:e. . • -'* effect of fraud upon - ' * cannot be made to secure antecedent advances, or a pn'oxi«tin!» debt nor to secure a debt owing from the owner lo ui<- iii.i-i- r -i» nor for the benefit of the cargo 81* when given to pay off a prior bond 316 not rendered invalid by the circumsLmoe thai ilic i«|»iuns &e, were ordered before the bond was given . . • • *I| bottomry lender not to see to tiie appliy fll : bottomry-bond not affected by the fact that bilb of excluuige »rc given at the same time, as collateral security - ' "^ supersedes all prior liens upon the vcssi-1, except, &.■ - 1^' entitled to priority of payment over a fonn.T VK.nd 3I*« must be enforced in a reasonable time •'•*' presently payable, if voyage is abandoned ;UUr n.k ..:.' ■ .■.»■ ^^ menced ; ' ' . if voyage is abandoned before ri.-k is meum-d, the .-oulmt u ^ converted into a simple loan effect of cajjture ujKjn . . • ■ whether valid when the veswjl is a carUl money secured by, when it iK-comes du. - - ' interest upon, when payment is di-layed " " if not discharged, how enforced • • if ship is sold, the assets mantliallcd if interest reserved in, is exorbitant, will l>c reduced MAR. ^^ 422 INDEX. Page BOTTOMRY-BOND, continued. ■when the vessel is lost, the bottomry lien attaches to the frag- ments of the wreck 226 BOTTOMRY LENDER, {See Bottomry-Bond.) CAPTURE, riofhtful as between enemies, when made within neutral waters 45 such capture to be questioned only by the neuti'al . . 45 if neutral does not interpose, the property is condemnable 45 the neutral, in such a case, bound to interpose ... 45 consequence of a failure to interpose .... 45 condemnation of captured property 59 what ships subject to capture 121 of a neutral ship, does not dissolve contract of affreightment 171 effect of upon seaman's contract . . 386, 387 and note, 404 by an enemy, extinguishes contract for seamen's wages . 404 CARGO, bound to the ship 154 when sold to obtain repairs, &c., must be contributed for in gene- ral average 272 contributes in a case of general average . . . . 273 belonging to government contributes .... 273 transhipment of, gives a claim for salvage . . . 333 owners of, bound to contribute for salvage services to the ship 334 owners of, not entitled to salvage reward, unless they assent to the salvage service 348 time allowed for the unlivery of 402, 403 seamen bound to lade and unlade at foreign ports, but not at do- mestic 411, 412 CAVEAT EMPTOR, the maxim, how apphed 60 CHARTERER, may underlet the vessel 140 bound to victual and man the ship 141 when bound to repair the vessel, at the expense of the owner 141, 142 is liable for freight whilst the vessel is undergoing repairs, unless, 142 when liable for freight, notwithstanding the ship is not tight, &c. 143 must be ready with his cargo at the stipulated time . . 145 if he hires a part of a ship, entitled to the use of such part 146 when he becomes owner pro liac vice 152 lien of, upon the cargo 152 CHARTER-PARTY, what constitutes 131 may be made by parol 134 INDEX. 4*j;j CHARTER-PARTY, con'.,:u. .,. action uix)n, -when uudor seal 137 stipulations and form of . . 139 when unlimited as to time ... HO burden of the vessel expressed in, offoct of . HO stipulation in, that the vessel sliall be kept staunch, Mrong, &c. 1 i 1 (See Dissolution of the Contract op Ai'rBEiGUTXcxr.) COLLISION, frequency of *S« causes of •»§ liability of owners and masters with respect to . - ■ . ■ neither partj- liable for, when arising from vis major . 1 both parties Uable for, when both to blaini> ^ .:, ^.j character of the latter rule . IW - t9t when arising from inscrutable causes, how the loss is divided ?96 - 999 when arising from the fault of the suffering fwrty ".""^ when arising from the fault of one party alone when arbing between a ship at anchor and one under sail in cases of towed ships rule with respect to consequential damages in cases of rules adopted to prevent the occurrence of . these rules not inflexible upon occurrence of, suffering ship lo reccivi- liability for, done away by the presence, on 1 less, &c causes of, communis juris causes of, referred home for decision, how dLnnimn'l .1 i, .•i.' (6te Siiir.) COiDIERCE, what is meant by . • • ' laws for regulation of . • • • ' ' "If* condition of during the middle ages '• - • of the commerce of "Western Euroi)C ** as to interdiction of • •• • "' " "'■ COmiON CARRIER, owner for the voyage liable as such '^*' >*' whether tow-lx)ats can be treated as ■"'*• "*'*• CONDEMNATION, ^^ changes title to a ship ■ • ^ , necessity of . 299 3 sentence of, by a con.petont court m '•,».,.. notice of the proceedings, necessary in ortlcr to b,nd all |*rt4r. 12 J such notice, how served for illegal trading, effect of, upon manner » conlract 424 INDEX. Page CONDITION PRECEDENT, ■what is 144 performance of, necessary to the recovery of freight upon a char- ter-party 143, 144 CONDONATION, effect of, upon wages of a deserting seaman . . . 405 master bound to grant, in what cases .... 405, note 2 CONSEQUENTIAL DAMAGES, rule with respect to, in cases of collision .... 302 CONSIGNEE, whether he may take the security of a boltomry-bond 212-214 CONSOLATO DEL MARE, date of 9, 11, note origin of . . • . . • • • .11-13 merits of 14 contents of 14 CONSUL, may appoint surveyors, upon application of the master of a ship • . . 117,118 to receive wages of seamen, when voyage is broken up by a sale of the vessel . . 380 CONTRACT, rule as to the execvition of, by an agent . . . . 137 alteration of, by parol, makes it all parol . . . . 138 as to rescinding • • 139 mariner's contract, {See Mariner.) CONTRIBUTION, {See General Average.) CONVOY, expense of going under, general average . . • • 272 CREOLE, case of the 38, note 1 CRUELTY, will justify a seaman in leaving the ship . . . 383, note 2 CRUSADES, effect of upon commerce 8 D. DAJklAGES, measure of, in cases arising under contracts of affreightment 158, note 4 for misconduct of seamen 415 DANGERS OF THE SEAS, losses by, excepted from the carriers' risks . . • 153 meaning of, in the sense of the law 153 INDEX. 425 DANISH CODE, rule of, in casOs of collision . J9I DANISH FLEET, ■whether seizure of, by Eugiami, lu i >l' . , was jusuuauic 33, owe 2 DAYS, •what is meant by lay days 148 meaning of running days ... 149 what is meant by working days 113 DECEIT, action for, upon what founded or.noi* I effect of, upon mariner's contract . iT'J, 313 DECK LOADS, no contribution for, in cases of jettison jS? - 273 exception to this doctrine 237 - 239 DEED, formalities required, when executed by an agent 136 rules of law with respect to ..... IJC- 139 DE JACTU, the Rhodian law with respect to .... 532 (See Gener.\l Aver.vge.) DELIVERY, necessary to perfect a sale ^ as to symbolical "'*• '* DEMURRAGE, what is *** whether payable for involuntary detention . . 1^0,151 DEmiARK, grounds upon which she claims duties, upon the i^xmirc of «ho sound and two belts ** treaties with ^*' '* DERELICT, what constitutes a case of 3»I, 3S2, 333 rate of salvage, in cases of . • • • ' owner's right of property not lost in consequence 01 J.^-' (See Salvage.) DESERTION, of seamen, works a forfeiture of wages . «|W ..>.! J,,* 410 what con.stitutes by act of Congress, what is dedarc-d to l«; » >" imprisonment of deserter, i.s in lieu of a forfuitur. > '• absence docs not constitute, unleiw, &c. *'^ DEVIATION, j^j what will justify • • • irti •0* from rules of navigation, when juKtificd 3Ui, wo to save property, discharges innurancc on the »li.p »«■ 426 INDEX. Page DISABILITY, of seamen, effect of upon their wages . *. . . 375 DISCHARGE, of seamen, {See Mariners.) •what causes -will justify a discharge of seamen . . 412, 413 DISSOLUTION OF THE CONTRACT OF AFFREIGHTMENT, by what causes effected 162-173 by blockade of port of destination 166 effect of capture ........ 171 effect of government prohibiting exportation of the cargo . 172 DRAFTS, salvage not allowed for recovery of 329 DROIT D'AUBAINE, 6 DRUNKENNESS, effect of, upon wages of seamen 415 E. EMBARGO, what is 48 hostile embargo ......... 48 American embargo of 1807 56 in accordance with the law of nations . . . . . 57 effect of, upon the contract of affreightment . . . 163, 383 whether the master may discharge the seamen during the con- tinuance of 384,385 EMBEZZLEMENT, effect of, upon a claim for salvage 345 of one salvor does not prejudice claim of co-salvors . . 346 mariners must contribute to the damages arising from, when com- mitted by each other 416 doctrine of the maritime law, with respect to embezzlement by mariners 416 ENGLAND, no systematic code of marine law 26 maritime jurisprudence of ..... • 26 admiralty reports of, ...•••• • 31 the four seas of 31 claim to the empire of those seas, now abandoned . . 31 seizure of the Danish fleet 33, note 2 FEDERAL COURTS, reports of 27 (^ee Appellate Courts.) LVPEX. .|..-^ FEZiULE, ''•'• may earn wages as a mariner FISHING TRADE, seamen's « &<• . « FRANCE, marine ordinances of . . . .,i character of the maritime jurisprudence of 94 wmI. FRAUD, ",«»^. conceahng defects in the subject of a sale, conawurtiiy, don not ii. volvc a loss of seamen's wages FREIGIITKU, entitled to the use of Kuch jmrt of Uio oliip aa ho liim liable for the whole freight allhotigli he faiiit to put on boanl a full lading, U T 428 INDEX. Page FRONTIER WATERS, jurisdiction of 32, note 1 FURNITURE, ■whether ballast of a ship, is 97 G. • GALLISON'S REPORTS, 27 GENERAL AVERAGE, ■what is 232 no average or contribution, if the goods -were thro^wn overboard from alarm &c., nor if benefit -was not derived in consequence 234 nor if the goods had no available value at the time of the sacrifice 234-236 nor if the jettison ■was rendered necessary from the ship being too heavily laden 236 nor if the goods ■were sto'wed upon deck, except &c. . . 237 nor if there -was no bill of lading for the goods, unless the goods ■were carried ■with the master's knowledge .... 240 if ship and cargo are saved by the jettison, and are after'wards lost ; -what is saved from the ■wreck must contribute . . 240 other examples of the application of this doctrine . . 240 ■what damages &c. must be contributed for . . . .241 no distinction as to contribution, ■whether the ship sacrificed adjudications upon this point .... doctrine of, in cases of stranding . decisions with respect to extraordinary expenditure considered as or cargo be . 241 241 - 245 245, 246, 254 246-253 . 253 ■whether injuries sustained from defending the ship against pirates &c. are general average 254-256 upon capture and recapture, a jettison having been made 256 costs and expenses of reclaiming, after capture constitute . 257 money paid to obtain release of ship and cargo ■when captured upon suspicion &c. constitutes . . . . . .257 all damage immediately arising from the act of jettison, is a sub- ject of contribution 258 examples of 258 to constitute, the sacrifice must be made for the common benefit, and be beneficial 258, 259 a subsequent sacrifice consequent upon a previous accidental loss does not constitute the ■whole an average loss . . 259 a voluntary act, and a direction of it to the common bene- fit, necessary to constitute 259, 260 expense of setting afloat a stranded vessel, a subject of .261 transporting the cargo in lighters, ■when a subject of 261 ..I GENERAL AVERAGE, continued, **** if part of the cargo is withdrawn, in a case of diautor, nuj't contribute to subsequent ex|H'nso3 &c. ... - 2^ expenses of unloading and storing cargo &o. general ...i >,.-,, when extraordinary expenses, when a subject of in what cases wages and provisions of the . if a part of the cargo is sold to obtain u- .. supplies it must be contributed for . 2'1 expense of going under convoy, constitute- 279 rule by which contribution is made . . CTJ persons &c., exempt from contribution . . ,;,t ship freight, and merchandise contribute 27S goods of the government contribute . . J7S goods carried on deck are not contributed for, b;:* t '* ' goods thro^vn ovcrboanl contribute, ecpially wit I. freight exempt from contribution, when ... 214 when marinei-s' wages contribute .... 27fl when to be adjusted ','?•" foreign adjustment of, binding unless &c. underwriters, how afTectcd by a foreign adjustment of 277, 278 ship contributes in general average . . "■J rule as to valuation of ship, for the purpose of . - I rule as to the valuation of cargo, for tJie purj>ose ot . - -.1 GUIEXXE, duchess of . l claims of, to the authorship of the laws of Olcron . : II. HANSEATIC LEAGUE, origin of - 1 date of 21 object of -'• -'■^ commercial and political power ul" 'iJl present condition ot . . . • '^^ maritime laws of fiJ laws of, founded upon the laws of Oh-ron and W'iabury -'3 laws of, when adopted . . '' law of, wltii respect to collision HARBORS, foreign vessels may be c.xcbulcd frfim general licen.sc to enter, im]ilied ... upon what grounds, rests tlic ri},'hl in cases of salvage . iii of ship-owner, upon the cargo for salvage 334 of seamen upon the vessel, muMt be enfi)rccd in a rua*unaUo timo 403 (See Ma8TKU.) LIGHT, must be exhibited by a veascl at anchor 310 must be exhibited by a vck-moI Milinj; in nnm>w »at»r» . ! ' not nccciwary to bo exhibited by ve»i»cl.i »ailiu(? on the high n.%' . ' reason of this latter rule . . , • • • • - • ' 1 .- i li4 \U 1- ' 1- ' 1»3. ini :^\ fo- 1 ■ t ISG l"'". 1-: 1-; 432 INDEX. Page LIMITATIONS, statute of, of the several States, does not limit or govern the ad- miralty in entertaining suits for seamen's wages . . 404 LOG-BOOK, entry in, of a seaman's absence . ... 408, 409 particulars necessary to be inserted in 409 evidence of the fact of desertion .... 409, 410 may be explained by pai'ol evidence 410 LOUGHBOROUGH, Lord, character of 376, note M. LIAIIITIME LAW, definition of ......... 1 its source 1 its authority ......... 1 MARINE INSURANCE, first mentioned in the laws of Wisbury . . . . 21 MARINERS, not bound by an agreement of the master or owner to render salvai.iKinuniiy n gnen, to rejoin it, duty of . . . . '. . 876, 3W when sent out of the ship on a special service, and fall sick, &r. effect of, upon wages .... as to intermediate earnings of, when separated iwm uic Mup ...>,, o. . disability' of, before voyage conunences . . . . 3;; when incapable of performing stipulated services 877, note 2 effect of a wrongful discharge of . . 377, 378, note 1, ■Kh' wages of, ina case of *v7/i( ;ia»//;fly(Hm . . . . :■:> wages of, when discharged abroad or the ship is sold abroad whether extra pay, allowed to, by the act of 1803, is recovei^ able in the courts of this country .... 380-382 wages of, when they leave the sliij) and go on boanl a convoy 382 when unsuppHed with provisions may leave the .ship . S8J quantity of provisions to be on board ever)- ship 382 what kind of treatment, will justify a seaman in leaMn- uif ship 5S.1. ii,.(i' C may recover wages during the continuance of an emliar^ effect of detention of the slrfp and subsequent restoratiun, and of detention and subsequent loss, upon the wages of 3?j, jbo effect of capture, upon contract of 384 in case of capture, may remain by the ship, until tl>e prize pro- ceedings are ended 388 effect of impressment, upon contract of . . ."■■" "-" wages of, how affected by their dralli durin|r the voyngo 389, ^ how affected by the earning, and loss of freight 891, 89J, 398 entitled to their wages, at cverj- «li-liverl' ... 398 rights of, not invalidated by anysjiccial a^ ' " •" >'" '^^»- ment of wages >93 how time of, passed in jKirt, is apj>ortionctl insurance upon freight by owners, diK-a not cnuru' 10 iciii.n' mariners cannot insure their wages, unh-tw &<-. effect upon wages of, where the proj>o»ed ^c)ynj;c •» aliAn* doncd or broken up . •'"" ^"" MAR. 37 434 INDEX. Page MARINERS, continued. whetlier the claim of, in cases of shipwreck &c., is for salvage or wages eo nomine ........ 400 wages of, to be paid, if any part of the cargo is saved, in a case of shipwreck . . 401 wages of, lost if they abandon the wreck animo non revertendi 401 wages of, how payable under the act of 1803 . . . 401 wages of, must be finally paid in ten days after their discharge &c. 402 usage in this country, with respect to the discharge of . 402 lien of, upon the vessel, must be enforced in a reasonable time 403 effect of a belligerent capture upon wages of . . 404 effect of recapture and ransom, upon contract of . 404, note whether they may recover their wages, when from the un- seaworthy character of the vessel, no freight is earned 404, note 5 what acts will occasion a forfeiture of wages of 405, 408, 409, 410 effect of condonation upon the forfeited wages of . 405, note 2 advance wages of, not affected by subsequent misconduct . 411 bound to lade and unlade cargo, at foreign ports, but not at domestic ports 411, 412 punishment of offences of 412-417 imprisonment of, effect upon wages 415 embezzlement by, contribution for 416 MASON'S REPORTS, character of 27 MASTER, power of to sell the ship 98-110 what circumstances authorize his selling . . . 103-105 testimony of, to show necessity of the sale . " . 107, note 1 cannot purchase the ship when sold abroad . . . 119 may execute a bill of sale of the "ship, in his own name . 119 may receive the proceeds of the sale . . . . 120 when he may charter the ship 135 incidental authority of 135 cannot bind his owners by a sealed instrument, so as &c. . 136 becomes owner p7-o hac fice,when he hires the vessel "on shares" 152 when liable for supplies 152 duty and responsibility of, with respect to the goods . . 155 bound to see cargo properly stowed 156 must set sail with first fair wind 157 must proceed by the usual route to port of destination . 157 what will justify his clearing out for a blockaded port . . 168 may borrow money for repairs and supplies for the ship . 176 when restrained from borrowing . . . . . .176 whether his contracts abroad, must be governed by the law of his own, or the foi'eign country . . . . . .178 lien of, for his disbursements 180 whether he has a lien upon the ship for his advances &c. 181, 182, 210 INDEX. 4S5 MASTER, continued. "^ whether such lien exists in favor of his wa^s . ]HI no one emiwwered but, to give an iinplicU lien upon « ihip . 18« power to hypothecate his pledge of the cargo binds the other owner*, wbon ho hM a direct authority to pledge, from th • • • ^ ^29 his power ceases when the ship arrl\ ^ ; dcfltinAtion SI* not bound to select a particular part of the cargo and apply to the repairs of the ship, rather than pledge the whole '2T> may order goods thrown overlxxinl, to lighten the ship. &. -- : advisable to consult the crew, but not necessarv- . S duty of, before resorting to a jettison &c. . :iS not obliged to part with goods until he is cither paid or the sum contributable in respect of them ... itS bound to use vigilance to prevent collision . 889 answerable to his owners, for collision occurring from hi* ncgU- gence &c. 289 may bind the owner, but not the crew, by an agreement '-^ '^•'>- der salvage service 132 entitled to what proportion of salvage remuneration U7 when intermediate course of the voyage is Icll to di^cn-uuij oi, power of, with respect to 361 substitution of new master, ciTect of, upon the shipping contract SM contract of, with owners need not be in writing whether owner is bound by contract of, in tlie t>hi])piug article ^v. MEASURE OF DAMAGES, rule with respect to, in contracts of alfreightment 158, note 4 MISREPRESENTATION, effect of, upon contracts *''' MOLLOY, argument of, in favor of the sovereignty of England, to th'- four seas 1. • MONEY, found on the person, not subject to salvage M* N. NATION, has exclusive jurisdiction, within iu own torrilorN 3* for what purposes may extend itji authority beyond lU huuu 31 NAUTICAL TERMS, definition of 315, noto NAVIGATION, origin of . . • • * * rules of the sea, will. n-Hi)c "^^^ 486 INDEX. Page NECESSITY, character of, tliat will excuse a violation of law . 103, note 3 moral, meaning of ...... • 104, note 2 plivsicial, meaning of ..... . 104, note 2 NEUTRAL, duties of 43, ef seq- bound to restore captured property found within Ids limits 46, 47 cannot impugn a capture, not in violation of his neutrality 126 duties of, with respect to neutrals 127 courts of, may restore property captured in violation of his neu- trality 127 can claim no salvage for a recapture from a belligerent . 350 when captured by a belligerent must be discharged without pay- ment of salvage 350 NEUTRAL WATERS, exempt from hostilities by belligerents . .... 42 Ariolation of, a hostile act 43 what constitutes a violation of 43 O. OFFICIAL PERSONS, not entitled to salvage, unless &c. ..... 335 what services will give them a claim to salvage . . . 335 OLERON, laws of 15 their origin 15-17 laws of, when promulgated 17 authority of the laws of 11, et seq. ONUS PROBANDI, rests on the purchaser of a ship, under a sale by the master, to show a necessity for the sale 103 rests on the lender to show the apparent necessity of the repairs or supplies for which he advances money to the master 176 is upon the lender on bottomry &c. . . . . .206 on owners to show that the repairs &c. could have been obtained without resorting to bottomry . . . . . ,202 on the party, who departs from the rules of navigation to show a necessity for the departure ...... 305 in cases of conflicting claims for salvage . . . 325 " OR ELSEWHERE," construction given to phrase of, in shipping articles 358, note 3 P. PART-OWNER, cannot take a bottomry, on the share of another part-owner for repairs done to the vessel 214 PARTNERSHIP, a seaman's contract to share in the profits of a fishing voyage does not constitute 356 INDEX. 437 PASSEXGER, not entitled to salvage, for the ortiinan- asrfMance h.- .mv l.^^.■ rendered a vessel in distress not bound to remain on boanl a ship in dist: if he renders extraordinary assistance entilku t compensation of, in cases of rescue . PILOT, Avbether owner is responsible i'or a collision, wlulii Uie TC«eJ is in charge of •!« «j« not ordinarily entitled to salvajre who is not bound to go on board a vessel in oisiruss, unless A;o. . ; PIRACY, ,r on ,,. . . PORTS, free to vessels of friendly powers jurisdiction of sovereign of, over foreign privat- sovereign of, may relax his jurisdiction sovereign of, may impose duties upon foreign vc«s<'ls ships of war, exempt from juris-.. I • effect of a condemnation as, by a conjjwtent court n. rem proceedings of a court of, mu.'-t be regular to Ijc binding PRIZE COURTS, (Sec PitiZK and .IritisiM«Ti<.x.) PROFITS, probable, not considered in e.Nlimating the d-uia-. - in collision ..•••• PROPERTY, distinguished from emi»ire what constitutes . of Rhii)S, how a<' Iff ra»»-» Qi , a allowed for a rescue from nn enemy •*• allowed to m.-rchant ^ •' rvicc. n-.i m. ^*'| whether allowed to ^u.:...: ■ • -woU . • «| effect of an agreement to render wilvim* »enricw M» effect of an agreenunt to render «Uv«pr u«.U»r« U. wc ^uj.. ^ irrespective of the < argo MJ allowed for tran.'"eiit of cargo the cargo bound Uj contribute for, M i» ;.'<»' ni' »^«-r'V 440 INDEX. Page SALVAGE, continued. when paid by the ship-owner, he has a lien on the goods for their contributory share, which is insui'able .... 334 when allowed to persons connected with the ship 334, 335, 336 when allowed to a pilot 336, 337 when allowed to a magistrate 337 when allowed to the mariners . . 340-343, 344, 400, 401 whether properly allowed to the mariners in a case of ship- wreck 342, 343, 345 what acts will forfeit a claim to 345 346 . 346 346 . 347 347, 348 347, 348 350 350, 351 effect of embezzlement upon a claim for . effect of abandonin ' entering a harbor Iwund lo \>v vigihmt 5t* must be checked, in entering a river or liarbor 31 1 dama'^ed from collision, is entitled to every axsiitaucj iniii u.c damaging vessel . . • • • • • ■ *** seizure and detention of, with «ul>sequent restoration, effect of, upon mariners* contract ^^' '** if unseaworthy, and no freiglit is canK'i, wn. ui. . iiiari;- - •■• entitled to their wages *** (&c Collision.) siiirs, private, under the juiisdiction of the soTcrcign •" «i»^- !"«• they lie public, exempt from such jurisdiction impressment of • • • right of impressment, conMdered jurisdiction of, whilst at sea public, have a right of approach title to, how acquired what passes in a sale of smp-owN]:u, when he charters his ship, Ixiund i bound to repair the ship, when may seek another cargo, if th. any cargo on Ixjanl when owner for the voyage when lie loses his lien ■ liability of, as to the la . , ,, , responsibility continue*, unUl the car^o « •^' '"• »' " of destination • • • " " bound for money p;uM f -btain a cleamn. .- f..r Ibc . ... » 41 J il li 442 • INDEX. Page SHIP-OWNER, continued. whether liable for repaii'S, obtained after he has parted with his interest in the ship 177, note 2 answerable for injuries arising from collision occasioned by the fault of the master 289, 290 his whole property liable for such injuries . 289, note 1, 304 when answerable, although a pilot is on board . . 312, 313 has a lien on the cargo, for salvage contribution, when . 344 claim of, for salvage 348 SHIPPING ARTICLES, (See Mariners.) SHIPWRIGHT, lien of 183, 186 lien of, may be enforced in the admiralty . . . 195 SICKNESS, special agreement of a mariner with respect to . . 394 of a mariner, effect of upon his wages 375 (See Seamex.) SLAVE, may become a salvor 349 SLAVE TRADE, neither piracy, nor crime, by the law of nations . . 53 STATES, of the American Union, power of, over maritime liens 193-198 STEAM-TUGS, (^e Towage.) STEAM-VESSELS, must give way to sailing vessels 308, 309 quantum of compensation, when salvage service is performed by or for 321 STOWAGE, goods must be stowed with care and under deck . 156, note 4 STRAITS, free, when the connected seas are free 32 not free to ships of war 33 duties upon the passage of ....... 34 STRANDING, of a ship, (See Gexeral Average.) SURVEY OF VESSELS, jurisdiction of the admiralty, to decree . . . 110-114 " regular " meaning of, in policies of insurance . . 115 must be in accordance with the local law . . . 115, note need not emanate from a court of admii-alty . . . 115 as matter of evidence 116,117 expense of, not chargeable to the seamen, unless &c. . 416 SURVEYORS, need not be sworn 117 SWEDISH CODE, rule of, in cases of collision 291 INDEX. 443 r. r.,. TERRITORIAL WATERS. what are ; . dominion of . TOWAGE, of ships ..... :. . collision arising from ... , . > ■whether boats engaged in business of, are liable a« comuion carriers :,.jj, ^-jU TRESPASS, master not liable for wanton trespass of gorvam 290, r is not committed by a person taking possession of properly teni- porarilv abandoned at sea .... TRUSTEES, cannot be purchasers at a sale of trust property U. UNDERWRITERS, how affected by a foreign adjustment of a general average 877. 9?k must contribute as for a general average in case.H where ihi- same person is owner of ship, cargo, and freight liability of, in cases of cDllisiou . . . . 'i UNLIVERY, of cargo, whether the seamen are bound to attend to 40*J, 407, note 'i y. • VALIN commentary of ... • - •'•. n**"* • VENDEE, whether bound to disclose his knowledge ol i-xmnjic iucls ••!, iit»5<- VENDOR, must disclose latent defects bound to deliver the specific thing k)M VENICE, her claim to the sovereignty df the Adriatii '-"<. note ? VISIT, right of, not admitted in time of peace permitted as a lK'lIi;,'i'rent ri;:lit claimed by England as e.\i.sling during I'im ■ right of, denied by our government • ' MSITATION AND IXQrillV, wlien riditfiilly exerci.-ied pcrmitlcd by the courtL'.sy of iiatjonn VOYAGE, foreign, what • must be ilescribed in seamen's article* ' ' how descrilfc'd . . . . ■ whether every port must be nameil destruction or losa of, eflect ujKjn V ' . how divided with respect to tin- p.i.. : • ■■'" -''^ "'^ "' ' '^ \y 444 INDEX. VOYAGE, continued. P"?' when outward ends, and homeward begins, with respect to wages of seamen 395-397 return, when It begins 397,398 abandonment or breaking up of, effect upon wages of seamen 399 is ended, when the ship has arrived at her last port of destination &c. 402 W. WAGES AND PROVISIONS, of crew, when a subject of general average . . 267-271 wages of crew, in cases of shipwreck . . 340-343, 400, 401 wages of seamen, when discharged wrongfully or otherwise, {See Mariners.) wages of seamen, due under the act of 1803, whether recover- able in the courts of this country 382 wages of seamen, divisible and payable at every delivering port 392, 393 mariners have a claim for wages eo nomine in cases of ship- wreck &c • 400 what acts will work a forfeiture of 405 what acts will work a partial forfeiture of ... 408 effect of condonation upon 405, note 2 subsequent wages, not forfeited by acts of previous misconduct 410 • advance wages, not affected by subsequent misconduct . 410 AVAIVER, of lien, {See Lien.) WAR, effect of, upon mariner's contract 370,374 WARRANTY, does not extend to visible defects 60 whether implied as to the good quality or condition of the thing sold 80 differs from a representation , .81 what it means . 81, 82 implied 84, 85, note WHALING VOYAGE, whether seamen's engagement for, must be in writing . 357 WISBURY, history of 18-19 its present condition 19, note 1 its political institutions 20 maritime laws of . . . . • . • • .21 laws of, when promulgated . . . . . . . 21 authority of the laws of 21 rule adopted by code of, in cases of collision . . 292, note WORKING DAYS, what is meant by ........ 149 WRECKS, may be sold by the government, on whose shores they are found 118 ^' i \ AA UNIVLRS1I\ OF ( VLIK)KM\ 1IHKVK\ L«» .\liv;rlr\ This book i> Dl'L uii ilic l.tsi (tj(r \t.iiii|>r«l IM-Iot*.